4 ms·

A pretty clear case where the legal system and the people who run it are left behind the times (and try to keep the times back with them). Changing your MAC add

by zeteo 14y ago

A pretty clear case where the legal system and the people who run it are left behind the times (and try to keep the times back with them). Changing your MAC address, for instance, is no worse a threat to society than wearing a hoodie in public, and threats of 35 year sentences are usually reserved for cases such as murder or rape. But because hacking is such a novel kind of crime that, if it spreads, will necessitate vast changes in the expertise and structure of the law enforcement system, the powers that be feel a need to nip it in the bud with excessive, well publicized punishments and threats.

rayiner 14y ago
Don't be purposefully disingenuous. There is nothing wrong with wearing a hoodie in public, but if you wear a hoodie to hide your face from security cameras while you walk, without permission, onto a commercial building at night, then the fact of your wearing the hoodie can be used to show that you knew you were trespassing and trying to hide the fact. The same exact reasoning can be applied to changing your MAC address while trespassing onto a private network without permission. There is nothing wrong with doing it by itself, but if you do it to get onto someone's network when they don't want you on, that's something totally different. As for "threats of 35 year sentences"--the statutory maximum is not a "threat." If I punch you in a bar fight, causing no injury, and you press charges, I'm theoretically facing the maximum sentence for assault in New York, which is 25 years. But at no point does anybody think anyone will actually get a 25 year sentence for a little bar fight. If I went apoplectic about the grave injustices of "facing" 25 years in prison for a bruised chin, people would point out the obvious: the statutory maximum is for people who try to kill people, not people who get in bar fights. Similar common sense should prevail in this discussion--the fact that it doesn't is because of nothing more than grandstanding.
- RyanMcGreal 14y ago
  > As for "threats of 35 year sentences"--the statutory maximum is not a "threat." That's simply incorrect. It is absolutely a threat. As I recently argued: > The prosecutor used the threat of 35-50 years in prison to get Aaron to accept a guilty plea. If he chose to plead not guilty and attempt to defend himself, it would cost well over a million dollars in legal fees, and if he were found guilty anyway, the judge would be strongly predisposed to make an example of him by giving him a very long, punitive sentence. > A prosecutor forcing someone to admit guilt by threatening a life-destroying cruel and unusual punishment if they do not admit it - why, that is the very essence of using torture to extract a confession! http://quandyfactory.com/blog/103/on_crimes_and_punishments_the_cruel_and_unusual_threat_against_aaron_swartz http://quandyfactory.com/blog/103/on_crimes_and_punishments_...
  - rayiner 14y ago
    The trick is in the word "faces." If I went to trial for punching someone at a bar, a jury could decide that I was really trying to kill them and my ninja hands were deadly weapons, etc, and a judge could decide I'm a menace to society and need to be put away and so in that sense I "face" 25 years in prison. But that doesn't happen. Yes, prosecutors offer lower sentences in exchange for guilty pleas, but the lower sentence is relative to the sentencing guidelines, not the statutory maximums. See: http://www.volokh.com/2013/01/16/the-criminal-charges-against-aaron-swartz-part-2-prosecutorial-discretion/ http://www.volokh.com/2013/01/16/the-criminal-charges-agains...
    - deleted 14y ago
      [deleted]
  - anigbrowl 14y ago
    Statutory maximums are not the same as mandatory minimums. > A prosecutor forcing someone to admit guilt by threatening a life-destroying cruel and unusual punishment if they do not admit it - why, that is the very essence of using torture to extract a confession! I count at least 7 fallacies in that single sentence. Impressive.
- olefoo 14y ago
  > does anybody think anyone will actually get a 25 year sentence for a little bar fight. Let's switch it up and say that the guy you decked was the son of the prosecutors best buddy from high school. And that you are a minority, high school dropout. In todays america, you very well might be facing the maximum sentence; if not much worse.
  - rayiner 14y ago
    Except you just made all that up, and also the sentences minorities get and the sentences white kids like Swartz get are (regrettably) two different conversations.
    - olefoo 14y ago
      The point I was making is that we have a two tiered system of justice in this country; and while it used to be the case that the tiers were divided exclusively by race; they are now divided along the lines of class, and political opinion. The meta-point I am attempting to make is that despite the pieties and the nice heritage architecture of the buildings it lives in; our system of justice has become unutterably and unsustainably corrupt; almost as corrupt as our political system.
- zeteo 14y ago
  >purposefully disingenuous Can we have a civilized conversation please? Criticizing my arguments is one thing, accusing me of dishonesty completely different. Thanks. I agree with your comparison of Aaron's deeds to trespassing. What is the statutory maximum for trespassing with a hoodie? Why does trespassing onto a network fit into a category of crimes for which prosecution can (and does) seek worse punishment than for actual physical assault? Pretty much for the reasons I've outlined in my comment: entrenched interests, desire to hit novel kinds of possible crimes with excessive punishment rather than reform the system to deal with them.
  - mpyne 14y ago
    Well you were being a bit dishonest; the actual maximum sentence was 50 years. :P > Why does trespassing onto a network fit into a category of crimes for which prosecution can (and does) seek worse punishment than for actual physical assault? In a word: automation. It can be (note: doesn't mean always is) entirely different in scope to be a network trespasser than to trespass in real life. The Allies executed Germans after WWII who never so much as met their victims, based only on the fact that they wrote, approved and otherwise perpetuated policies that caused millions on the same continent to later perish. I'm not trying to say that Aaron or anyone else is killing people obviously, just that there's a lot of things you can conceivably affect on a computer network, which might make a computer-related charge even more serious than a similar charge in real life.
  - rayiner 14y ago
    > Can we have a civilized conversation please? Criticizing my arguments is one thing, accusing me of dishonesty completely different. Saying "there is nothing wrong with changing your MAC address" in this context is disingenuous, because it implies that Swartz was being charged for changing his MAC address. That is a false implication. He was being charged for the other things he was doing--the things that necessitated his changing his MAC address. Trespassing onto a network under the CFAA is a misdemeanor, just like criminal trespass in a building. Trespassing with intent to commit some other crime therein is a felony under the CFAA, and is basically burglary (http://en.wikipedia.org/wiki/Burglary http://en.wikipedia.org/wiki/Burglary) in meat-space. The problem here is that mass copyright infringement shouldn't be a crime, but rather a civil issue. But the entrenched interests that made mass copyright infringement a crime are probably different than the ones you're thinking of--it was the tech industry, the BSA with Microsoft, Oracle, etc, that turned copyright infringement into a criminal matter in their fight against mass pirating of Windows, etc.

by zeteo 14y ago

rayiner 14y ago

Don't be purposefully disingenuous. There is nothing wrong with wearing a hoodie in public, but if you wear a hoodie to hide your face from security cameras while you walk, without permission, onto a commercial building at night, then the fact of your wearing the hoodie can be used to show that you knew you were trespassing and trying to hide the fact. The same exact reasoning can be applied to changing your MAC address while trespassing onto a private network without permission. There is nothing wrong with doing it by itself, but if you do it to get onto someone's network when they don't want you on, that's something totally different. As for "threats of 35 year sentences"--the statutory maximum is not a "threat." If I punch you in a bar fight, causing no injury, and you press charges, I'm theoretically facing the maximum sentence for assault in New York, which is 25 years. But at no point does anybody think anyone will actually get a 25 year sentence for a little bar fight. If I went apoplectic about the grave injustices of "facing" 25 years in prison for a bruised chin, people would point out the obvious: the statutory maximum is for people who try to kill people, not people who get in bar fights. Similar common sense should prevail in this discussion--the fact that it doesn't is because of nothing more than grandstanding.

RyanMcGreal 14y ago
> As for "threats of 35 year sentences"--the statutory maximum is not a "threat." That's simply incorrect. It is absolutely a threat. As I recently argued: > The prosecutor used the threat of 35-50 years in prison to get Aaron to accept a guilty plea. If he chose to plead not guilty and attempt to defend himself, it would cost well over a million dollars in legal fees, and if he were found guilty anyway, the judge would be strongly predisposed to make an example of him by giving him a very long, punitive sentence. > A prosecutor forcing someone to admit guilt by threatening a life-destroying cruel and unusual punishment if they do not admit it - why, that is the very essence of using torture to extract a confession! http://quandyfactory.com/blog/103/on_crimes_and_punishments_the_cruel_and_unusual_threat_against_aaron_swartz http://quandyfactory.com/blog/103/on_crimes_and_punishments_...
- rayiner 14y ago
  The trick is in the word "faces." If I went to trial for punching someone at a bar, a jury could decide that I was really trying to kill them and my ninja hands were deadly weapons, etc, and a judge could decide I'm a menace to society and need to be put away and so in that sense I "face" 25 years in prison. But that doesn't happen. Yes, prosecutors offer lower sentences in exchange for guilty pleas, but the lower sentence is relative to the sentencing guidelines, not the statutory maximums. See: http://www.volokh.com/2013/01/16/the-criminal-charges-against-aaron-swartz-part-2-prosecutorial-discretion/ http://www.volokh.com/2013/01/16/the-criminal-charges-agains...
  - deleted 14y ago
    [deleted]
- anigbrowl 14y ago
  Statutory maximums are not the same as mandatory minimums. > A prosecutor forcing someone to admit guilt by threatening a life-destroying cruel and unusual punishment if they do not admit it - why, that is the very essence of using torture to extract a confession! I count at least 7 fallacies in that single sentence. Impressive.
olefoo 14y ago
> does anybody think anyone will actually get a 25 year sentence for a little bar fight. Let's switch it up and say that the guy you decked was the son of the prosecutors best buddy from high school. And that you are a minority, high school dropout. In todays america, you very well might be facing the maximum sentence; if not much worse.
- rayiner 14y ago
  Except you just made all that up, and also the sentences minorities get and the sentences white kids like Swartz get are (regrettably) two different conversations.
  - olefoo 14y ago
    The point I was making is that we have a two tiered system of justice in this country; and while it used to be the case that the tiers were divided exclusively by race; they are now divided along the lines of class, and political opinion. The meta-point I am attempting to make is that despite the pieties and the nice heritage architecture of the buildings it lives in; our system of justice has become unutterably and unsustainably corrupt; almost as corrupt as our political system.
zeteo 14y ago
>purposefully disingenuous Can we have a civilized conversation please? Criticizing my arguments is one thing, accusing me of dishonesty completely different. Thanks. I agree with your comparison of Aaron's deeds to trespassing. What is the statutory maximum for trespassing with a hoodie? Why does trespassing onto a network fit into a category of crimes for which prosecution can (and does) seek worse punishment than for actual physical assault? Pretty much for the reasons I've outlined in my comment: entrenched interests, desire to hit novel kinds of possible crimes with excessive punishment rather than reform the system to deal with them.
- mpyne 14y ago
  Well you were being a bit dishonest; the actual maximum sentence was 50 years. :P > Why does trespassing onto a network fit into a category of crimes for which prosecution can (and does) seek worse punishment than for actual physical assault? In a word: automation. It can be (note: doesn't mean always is) entirely different in scope to be a network trespasser than to trespass in real life. The Allies executed Germans after WWII who never so much as met their victims, based only on the fact that they wrote, approved and otherwise perpetuated policies that caused millions on the same continent to later perish. I'm not trying to say that Aaron or anyone else is killing people obviously, just that there's a lot of things you can conceivably affect on a computer network, which might make a computer-related charge even more serious than a similar charge in real life.
- rayiner 14y ago
  > Can we have a civilized conversation please? Criticizing my arguments is one thing, accusing me of dishonesty completely different. Saying "there is nothing wrong with changing your MAC address" in this context is disingenuous, because it implies that Swartz was being charged for changing his MAC address. That is a false implication. He was being charged for the other things he was doing--the things that necessitated his changing his MAC address. Trespassing onto a network under the CFAA is a misdemeanor, just like criminal trespass in a building. Trespassing with intent to commit some other crime therein is a felony under the CFAA, and is basically burglary (http://en.wikipedia.org/wiki/Burglary http://en.wikipedia.org/wiki/Burglary) in meat-space. The problem here is that mass copyright infringement shouldn't be a crime, but rather a civil issue. But the entrenched interests that made mass copyright infringement a crime are probably different than the ones you're thinking of--it was the tech industry, the BSA with Microsoft, Oracle, etc, that turned copyright infringement into a criminal matter in their fight against mass pirating of Windows, etc.