The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion

http://www.volokh.com/2013/01/16/the-criminal-charges-against-aaron-swartz-part-2-prosecutorial-discretion/

by pdonis • 14 years ago

161 136 14 years ago

pdonis15• 14 years ago

Interesting follow-up by Orin Kerr. Brief summary of his summary:

[quote]

I’m going to break down the question into four different issues: First, was any criminal punishment appropriate in the case? Second, if so, how much criminal punishment was appropriate? Third, who is to blame if the punishment was excessive and the government’s tactics were overzealous? And fourth, does the Swartz case show the need to amend the Computer Fraud and Abuse Act, and if so, how?

On the first question, I think that some kind of criminal punishment was appropriate in this case.

On the second question...here’s the key question: What punishment was the minimum necessary to deter Swartz from continuing to try to use unlawful means to achieve his reform goals? I don’t think I know the answer to that question, but that’s the question I would answer to determine the proper level of punishment.

On the third question...I think it’s important to realize that what happened in the Swartz case happens it lots and lots of federal criminal cases...If you want to end these tactics, don’t just complain about the Swartz case. Don’t just complain when the defendant happens to be a brilliant guy who went to Stanford and hangs out with Larry Lessig. Instead, complain that this is business as usual in federal criminal cases around the country — mostly with defendants who no one has ever heard of and who get locked up for years without anyone else much caring.

On the fourth issue, yes, the Swartz case does point to a serious problem with the Computer Fraud and Abuse Act. But that problem is not the definition of “unauthorized access,” as some people seem to believe...Rather, the problem raised by the Swartz case is one I’ve been fighting for years: Felony liability under the statute is triggered much too easily.

[/quote]

gnosis• 14 years ago

"What punishment was the minimum necessary to deter Swartz from continuing to try to use unlawful means to achieve his reform goals?"

Let's say no punishment would deter Swartz. Would that justify a sentence of life in prison?

pdonis15• 14 years ago

Kerr says later on: "decades in jail would have been extreme overkill". So apparently he was willing to at least set some limits without even knowing the answer to his question. A little earlier he says: "I’ll defer here to the people who knew Swartz best, with whatever they think the right answer is. Would probation have been enough? A month of home confinement? Jail time?" Which also sets some bounds on what he thought was reasonable.

So I don't know if Kerr really meant for his question to be taken at face value. OTOH, he does seem to consider it important that the punishment be sufficient to cause the person to switch from illegal to legal means for achieving his goals. So he doesn't seem fully consistent on this point.

malandrew• 14 years ago

Given that he, like many of us, lived his entire life on the internet, simply taking away all computer and internet access for 12 months should be enough to deter him. During those 12 months, if he violates that probationary periods he could be automatically hit with 6 months of jail time.

For many of us, the possibility of being deprived the tool that gives most of us the power we have should be enough to deter.

introspect• 14 years ago

For other readers, please read the whole post, not just the summary, before you comment.

fatbird4• 14 years ago

Kerr does a good job reminding readers that what happened to Swartz was absolutely standard for federal prosecutors, and the outrage is triggered largely because he has a powerful constituency looking for redress on his suicide. The important takeaway from this, though, isn't about the injustice that happened to Swartz as much as the ongoing injustice of a system of federal prosecution that does this to many, many more defendants who are far less powerful and connected than Swartz.

SoftwareMaven2• 14 years ago

I think a lot (most?) people understand that. Aaron is the rallying cry to spark action. Ortiz is an initial heading to point that action. And while I hope Ortiz does pay (see https://news.ycombinator.com/item?id=5071218 for hope it might be), I hope even more that it doesn't stop there.

The value in Ortiz "paying" is to show other prosecutors what can happen when they get over zealous. There is only value in that if it is continually monitored and other prosecutors are "punished" when they do the same.

To that end, it would be nice to have a way to monitor that activity, because it is nigh impossible to change what you can't measure, if the problems are systemic enough (as I believe this one is).

andylei2• 14 years ago

> The value in Ortiz "paying" is to show other prosecutors what can happen when they get over zealous

what i got from the article is that Ortiz was not overzealous. she was doing what most prosecutors do all the time. why should we single her out? if we wanted to fire all prosecutors that used her tactics, we'd probably have to fire the majority of federal prosecutors.

fatbird4• 14 years ago

If Ortiz or Heymann are fired or resign under pressure, the only signal that really sends to other prosecutors is that mob justice is effective for those with a mob at their backs. And against the idea of being over zealous, you have the mentality cultivated in the legal field that one cannot be "over" zealous in playing one's role within an adversarial system.

If you want to see change, not just for people like Swartz but for all defendants, you need to remove the incentives for prosecutors to rack up the highest number of kills, and you need to make a trial something that isn't going to ruin the defendant if they choose not to plea out.

tptacek2• 14 years ago

Interestingly, Kerr is apparently expecting to assist Aurenheimer at his appeal for similar convictions under CFAA this year.

temphn3• 14 years ago

  Swartz had something else in mind it seems; just taking 
  the law into his own hands

I think this is really one of the core reasons so many hackers disagree with this lawyer mindset. A hacker or an entrepreneur is someone who breaks rules to create something. Innovation and consensus are antonyms, not synonyms. Innovation does not happen by committee. If you wait for a "democratic process" that is bought and rigged by the copyright maximalists, you will wait forever. The bold actions of individuals are the only way anything has ever changed for the better.

As for the fetishization of "democracy" in Kerr's post, sometimes elections produce good outcomes. But often the wisdom of crowds isn't so wise; I'd hate to have the value of the gravitational constant or the next CEO of Google determined by public plebiscite. And many times, perhaps most times, the crowd votes after someone bold has already moved and shown the way. That's what Swartz was doing. What is legal and what is moral are not the same thing, and all those who argue "it's bad, but it was the law" are the moral inverses of Swartz: "it's good even if it's not the law".

rayiner8• 14 years ago

I think there is a strong grain of truth to what you say. My politics are fairly lawyerly,[1] and I find the anti-democratic sentiment on here disquieting, especially the constant attempts to discredit the democratic process at every turn by unsubstantiated hand waving about how the system is "bought."

[1] I think the chicken came before the egg. The profession attracts people who have a strong sense of order and continuity, it doesn't make them that way. Though I think it's incorrect to juxtapose "innovation" so starkly with a love of order. "Cowboy engineering" isn't universal even among technical people. Lots of wonderful things are pyramids--created by armies of order-loving engineers. 787's aren't built by rule breakers.

temphn3• 14 years ago

I am happy we can isolate a point of upstream difference here, as many times people argue about downstream things unproductively.

Regarding "cowboy engineering", granted. I would argue that respect for engineering practices/stability comes after that blistering innovation that builds the system in the first place. And in some cases at least, many lawyers seem to endorse anti-democratic measures (e.g. having federal prosecutors immune from election, or having the federal government enforce civil rights measures that were vastly unpopular in the states of enforcement). So it is more complex than pro/anti-democratic on the lawyer side too.

But ultimately even more than "democracy", it may just be whether you explicitly believe the ends justify the means. If your bold stratagem ends in failure, then even more scrutiny is placed on your extralegal or envelope-pushing means (see Napster). If it ends in success, you often have much more popularity/influence than you did before and the envelope-pushing is forgotten or romanticized (see Jobs' early phone-phreaking, or Youtube). So whether or not people verbally agree that the ends justify the means, they usually practically agree, in that one or more of their heros was a nonconformist who did change the system.

Indeed, often the kind of hero responsible for creating the legal system that they're implementing. The guys on the dollar bills, like Washington and Lincoln, led a revolution and suspended habeas corpus respectively; they did what it took to win, and let history be the judge of whether it was right. So from this vantage point, those who simply execute the law without concern for higher morality are respecting the hackers/revolutionaries of times gone by (because they won) while blocking those of the present day (because they haven't won...yet).

bcoates2• 14 years ago

OK, here's some substantiation: http://www.nytimes.com/2013/01/03/opinion/how-bankers-help-d...

HSBC has admitted that it is for all practical purposes a criminal enterprise masquerading as a bank. This is not a paperwork mistake or a lapse of oversight, it's their business model. Nobody will be prosecuted. The people performing these admitted criminal acts will be allowed to keep their paychecks, their bonuses, and in many cases, their jobs. No jail time, no criminal records, not even 40 hours of picking up trash in a park.

btilly11• 14 years ago

For the record, I do not consider myself anti-democratic. I consider myself pro-democratic. However I do not see that we have a democratic process.

As a concrete example, consider the last election. More than 50% of voters voted for Democrats in Congress (even when you discard seats where there was only one party on the ballot, still over 50% voted that way), and a large majority in polls want Congress to become less partisan. Yet Republicans won Congress by a significant margin, and most members of Congress are in seats where their only realistic political challenges will come from the radical wing of their own political party.

In short, the population wanted moderates with a slight preference for Democrats, yet overwhelmingly we got extremists and a significant Republican majority. This does not reflect the desires of the American people, nor will the actions of our elected officials reflect our aspirations.

I could multiply with examples of how the governance of our society results in things not desired by the population, or not supported by my understanding of how the Constitution was meant to be read. But my point is simple. If you like sausage, you shouldn't learn how it is made. I want to like our legal system, but I've learned just enough about how it works and came to be that I cannot trust it.

noonespecial• 14 years ago

787's no. First powered aircraft. Absolutely.

strlen3• 14 years ago

Err, I think you have a very relevant point, but I think it's not fair to characterize this as either "order-loving" or "anti democracy".

I'll paraphrase Churchill: I think that democracy is horrible, but it's simply the best means we have of protecting individual rights.

Furthermore, democracy doesn't mean "majoritarianism", it means "rule of people". Yet even a simple representative democracy is exceedingly difficult to implement (obvious example is how would one draw district boundaries to ensure fair representation of all groups -- Gerrymandering is a huge problem) as to adequately represent "the will of the people". So a lot of people are contending this specific point.

I think where I draw the line is in ends vs. means: I strongly care about protecting basic individual rights. Primitive ancestral tribalism means absolute collectivism and zero individual rights (the right to swing one's fist was not limited by where another's nose began), so we've continuously evolved better and better systems to do so including Anglo-American Common Law (which today still provides some of the strongest guarantees of liberty anywhere on Earth).

On the other hand, just looking at the judicial history, I see a lot of clever bending of the rules and hacks that got us there: using 14th amendment to apply first amendment to defend highly unpopular speech was both "anti-democratic" and contrary to the letter of the law (the first amendment clearly said "congress shall pass no law"). Likewise, Roe v. Wade was a great judicial hack (use of 9th and 14th amendment to defend another activity most everyone opposed) that significantly expanded women's reproductive freedom.

These kind of "hacks" even made the idea of law entertaining to me (when fresh out of undergrad, I was being prepared for deposition in some IP litigation I got dragged to as a result of an internship I had, the counsel seriously urged me to consider law school instead of MS in CSE). However, I knew that realistically my choices would be either near-starvation or big law (absolutely the wrong place for someone like me, who could never adhere to a strict schedule or a dress code).

However, I don't see that "order loving" and "order breaking" are mutually exclusive: a software engineer is free to work at a firm that requires everyone to be in the office at 9:30 (irrespective of how late they stay until) and many choose to do so (practically all engineer working for financial firms). I don't see an issue with companies choosing this culture, with some reasonable exceptions (e.g., I'm not a laissez-faire absolutist, so I would consider it grossly unjust to fire an engineer for coming at 9:45 because their daughter had a doctor's appointment that morning).

While I would abhor forced-collectivism as a political system, I've enjoyed working at smaller "collectivist" companies, i.e., where everyone is focused on the same goal (which benefits everyone) rather than on advancing themselves.

So where does aaron enter into this? I think to me the part I found morally repugnant that the law that was meant to defend JSTOR (who have dropped the charges and whose rights were not severely transgressed) was aimed disproportionally against Aaron. In other words the state was acting to some concrete end that went far beyond what was reasonable to protect individual rights[1].

If the state wanted Aaron to never do this again, clearly stating to Aaron that if this happens again he will go to jail (something that seemed to absolutely deter him) and get a felony on his record (something that, again, would clearly deter him -- in that it would make his goals of social activism much more difficult in terms of difficulty of finding employment, vote or run for office, etc...).

Everything else seems superflous, unneeded and disproportionate (if JSTOR pursued the case they would have had a right to some kind of settlement, but not, e.g., forcing Aaron to pay $2 bn or sending him to jail for a decade).

What I think energized me even more personally is that his situation is far from unique -- you were also one of the first to point to this out too. However, rather than forgetting about Aaron, the proper response is to further seize on the momentum: Aaron was certainly influential and this influence could be used to change the laws governing prosecutorial conduct. I think (but correct me if I am wrong), you would also agree with me here.

Where we disagree (as far as I understand your comments) is just because 51% of people find personal drug use repugnant (or believe cooky theories about it), than they have a free hand at imposing drug laws. My own take being that "unenumerated" individual liberties (liberty being defined negatively and circularly as something that doesn't infringe on the liberty of othes) should be restricted if and only if doing so is crucial to protecting the rights of others (e.g., to use an artificial example, if a pain killer happens to make 30% of its users instantly and extremely violent it can be restricted, as long as it is still available under supervised conditions to who can't for one reason or another use another pain killer). More fundamental liberties (those crucial to continuation of liberty itself -- free speech, protection against torture, protection against unreasonable search and seizure) should have an even stricter standard (something similar to the "clear and present danger" standard for free speech in the US today). I think it's also close to the fundamental framework most (but not all) HN-ers subscribe to (libertarians and liberals alike), but there is wide disagreement on specifics of how it applies in each individual case (it's clear that an outright ban on marijuana has a zero or negative effect as far protection of fundamental liberties of others goes, but it's a bit more difficult for other drugs). Some might also argue that there is an even more fundamental right to use an entheogen, etc...

The libertarian positions tend to be more categorical than the liberal ones (e.g., property is the more right, so taxation is always unjust, even if it's the only way to provide basic healthcare or legal protection for individuals).

I am hopefully not caricaturing you, but your argument seems to be that liberties and rights are crucial, but they are granted and limited based on "greater common good" analysis as opposed to more categorical statements. I think it's perfectly valid and (often) seems to lead to similar conclusions as the system I use, but the thought process is very different in that a deeper-level happiness of majority (which is usually greatly bolstered by liberty, but not always so), as opposed to liberty itself is your overriding concern ("if a small minority really wants to do X which poses no harm to the majority, but the majority is deeply upset that X is allowed, then it's fine to bring the legal system down full-force on the minority that chooses to do X").

In the end I think these two systems actually converge more often that not: drug war does not serve the common good, for example. Yet, it's the disagreements that can be particularly vehement (such as issue of laws that infringe on individual rights in one way or another, but yet have a clear societal benefit despite not immediately protecting individual rights -- e.g., seatbelt laws, laws regulating food portions, drugs beyond marijuana, certain police practices, etc...)

[1] Reasonable people can disagree whether academic publishers have a right to hold papers behind a paywall. I think that's debatable, with my own views being closer to Aaron's. Another example where this is simply hard and reasonable people coming from the same "first principles" can disagree.

AnthonyMouse• 14 years ago

>I find the anti-democratic sentiment on here disquieting, especially the constant attempts to discredit the democratic process at every turn by unsubstantiated hand waving about how the system is "bought."

I think a lot of that comes from the decentralized nature of this industry. The status quo in Washington doesn't mesh with that very well. Normally when two industries have a trade disagreement over legislation, they both send their lobbyists to Congress to advocate their interests and then it gets hashed out and usually something mutually agreeable (or at least balanced) comes about. But decentralized entrepreneurs don't have lobbyists or official spokesmen, as a general rule. So we can't easily participate in that process in the "traditional" way, and then the process repeatedly fails to arrive at results that satisfy us and we rail against it.

Which is probably not very productive in the long run. What we need is to find a way to interface with Washington as a decentralized group. Because in many cases we all largely agree and have similar interests, it's just that no one can go there and claim official representation of the entire group and Congress is not currently equipped to negotiate with a million semi-independent individuals.

spin2• 14 years ago

> unsubstantiated hand waving about how the system is "bought."

On December 16, 2005, The New York Times reported that the Bush administration was spying on American citizens without a warrant. Most of the major Telecoms were participants in this massive, warrantless eavesdropping system. So the EFF and the ACLU filed lawsuits against these telecoms. Federal courts began ruling against the telecoms (Yay! Democracy in action!).

So the telecoms "bought" some lawmakers. In July, 2008, the senate passed H.R. 6304 which provided retro-active immunity to telephone companies that participated in the Bush administration's warrantless surveillance program.

ie: This is not unsubstantiated. This is not hand-waving. The system was "bought".

Since then, congress doesn't even bother with immunity any more. Both Cheney and Bush have admitted on national television that they authorized torture. (Torture is still illegal in the U.S.: http://www.law.cornell.edu/uscode/text/18/2340 -- that's a specific law passed by a democratic system.) And yet no one was ever investigated or arrested or anything. Ho hum.

Obama now has a "kill list" that he personally signs. He can declare someone to die, without a court or a trial. That sounds like "monarchy" to me, not "democracy". ("Off with his head!")

Based on these and other events, as far as I can tell, at a federal level, we don't really have a democracy anymore. There's no democracy to uphold or respect. If you're a Washington insider, protecting Washington power, then anything goes -- spying on American citizens, torture, invading countries, killing people.

But if you threaten Washington power, then you will be hounded by prosecutors in the name of "justice". It's too bad Aaaron Swartz couldn't buy himself some retroactive immunity.

betterunix• 14 years ago

"unsubstantiated hand waving about how the system is "bought.""

It is not exactly unsubstantiated: the powerful people within the system have basically admitted it. See, for example, Chris Dodd's comments:

http://www.foxnews.com/politics/2012/01/19/exclusive-hollywo...

How exactly might you interpret a comment like, "Candidly, those who count on quote 'Hollywood' for support need to understand that this industry is watching very carefully who's going to stand up for them when their job is at stake?" Politicians count on big business for support and the leaders of those businesses make sure those politicians do what benefits them.

It's not just Hollywood. Obama needed the support of the pharmaceutical industry to push the healthcare bill through; the deal was that the Obama administration would fight harder against medical marijuana and imported drugs, and despite the fact that Obama's public statements included talk of depriotizing marijuana, his first two years saw more raids on medical marijuana dispensaries than all eight years of his predecessor. There is little doubt that the defense industry has a comfortable relationship with the government either: we spend as much on buying their weapons and systems as we spend on social security, and no president after Eisenhower has failed to involve the US in some military engagement or war (most of which were entirely unnecessary).

It is not that democracy is discredited, but that we question whether we even have a real democracy anymore. If your only choices are "far right" and "not so far right," does your vote really count? One has to look to the extreme minorities, third parties and independents, to find anything that could be called "left wing" by any reasonable standard.

I place the beginning of valid questions about American democracy in the 1970s. That was when the Democrats began catering to big business just like the Republicans, and it was in that decade that we (probably coincidentally) saw the beginning of paramilitary law enforcement. It was also the decade that saw the beginning of explosive growth in executive branch power (once the dust from the Nixon affair settled, anyway), which at this point has come to mean "when the president has it in for you, you're dead." As an example, it was in the 1970s that the attorney general's office gained the power to declare drugs to be illegal without having to wait for the wheels of democracy, and to arrest and prosecute people for possessing those drugs.

So can you really blame us for questioning the democracy of the United States? It seems like the only democratic processes that matter anymore are those that decide which set of big businesses will receive help from the government.

andylei2• 14 years ago

aaron's mindset really is different from kerr's, and kerr's thinks his is "better" (i'm not really sure which side to take on this point). but regardless of that point, how should we expect the law to respond to someone like aaron? should we expect that people who intentionally break laws and practice civil disobedience not be punished? if so, why bother even having laws?

nitrogen2• 14 years ago

The purpose of laws is to provide a framework for the easy cases. The hard cases should be judged by their intent and their outcome.

The vast majority of the order you see in the world around you isn't because of laws, but because of a mutual interest in cooperation.

smacktoward• 14 years ago

"As for the fetishization of 'democracy' in Kerr's post, sometimes elections produce good outcomes. But often the wisdom of crowds isn't so wise"

Well, yes, but that's why we do the whole voting thing again after a period of time, rather than just once. Democracy isn't a means to ensure bad decisions won't get made, it's a means to ensure they can be un-made.

"Many times, perhaps most times, the crowd votes after someone bold has already moved and shown the way. That's what Swartz was doing."

You missed the point of Kerr's argument, which was that what you describe isn't what Swartz was doing. You're describing a Rosa Parks strategy -- do the minimum necessary to break an unjust law in order to elicit punishment, and therefore draw attention to the law's unjustness. If that's your strategy, the prospect of going to jail isn't a defeat, it's a victory.

But Swartz, Kerr argues, wasn't following that strategy; he was doing something different. He did much more than the bare minimum necessary to elicit punishment, and his actions indicate that the prospect of going to jail represented an interruption of his plans, rather than the culmination of them.

Swartz was not acting in the grand tradition of civil disobedience in which one willingly draws punishment to bring attention to the unjustness of the law. In his own words, he didn’t want to “just send a strong message opposing the privatization of knowledge.” Rather, he wanted to change the facts on the ground to make his preferred world a fait accompli. That is, he wanted to make the laws unenforceable, winning the debate unilaterally outside of Congress.

In this line of thinking, Swartz isn't Rosa Parks; he's Al Capone, if you can think of Capone's flooding the streets of Chicago with bootleg booze as a protest against Prohibition. Effective? Sure; the cops can't bust everyone if there's a speakeasy on every corner, and if the law is being routinely flouted by millions every day its absurdity is obvious. But because it involves doing much more than the minimum required to violate the law, this is something qualitatively different from civil disobedience.

gbhn2• 14 years ago

That's why the issue is contentious. Was the government of South Africa justified in taking special deterrence measures to deter Nelson Mandela from pursuing his anti-democratic efforts to unlawfully oppose the government? This is absolutely crazy talk. The fetishization of democracy cannot be allowed to undermine principled opposition to bugs found in its operation. I agree with Kerr that civil disobedience merits punishment -- that's kind of the point. But he's completely wrong about prosecutorial discretion. It's completely correct that the prosecutorial indiscretion of treating civil disobedience as if it were traitorous to democracy is a political act, and should be answered by political means.

An "Al Capone" approach would be more like some of the actions of Anonymous -- performing security penetrations to collect, say, secret government or corporate data and then publishing it. Accessing publicly-funded research or public-domain documents and making them available is much more Rosa Parks.

mjn• 14 years ago

Provoking an arrest to gain publicity and highlight a law's unjustness is one civil-disobedience tactic, but I don't see it as the only one, or a particularly canonical form. Thoreau's original essay on the subject focused on the moral imperative to ignore unjust laws through noncompliance. That might result in an arrest, or it might not; the important part was noncompliance, and provoking an arrest was simply a necessary evil that might result, not the point of civil disobedience, or something to actively seek.

I hadn't thought of Al Capone as an example of civil disobedience, but that's an interesting point, and I'll admit that example does strengthen your point, because he isn't what people usually think of as civil disobedience. There are many more examples than Al Capone of aiming primarily to change the situation directly, rather than mainly aimed at provoking a symbolic arrest, though. Would you consider the Underground Railroad an example of civil disobedience, or of something else?

Even in cases where there is a desire to provoke a high-profile, symbolic arrest, widespread flouting to render the law unenforceable is often part of the strategy as well. For example, Gandhi's famous Salt March had two components. On the one hand, Gandhi personally, very publicly and openly, announced his intention to make salt, and began a march to the sea where he'd do so, in a symbolic gesture to violate the British salt laws and provoke arrest. But equally importantly, the Salt March was intended to kick off millions of Indians making their own salt, rendering the law so widely violated that it became completely unenforceable. You (and Kerr) seem to be thinking of the first part of that as the only thing that counts as "civil disobedience", but the second part was critically important to the success of the Salt March, and I think it's fair to call it an example of widespread civil disobedience.

jacquesm5• 14 years ago

Not everybody that engages in civil disobedience does 'the minimum', sometimes civil disobedience at the minimum level will be ignored and ineffective.

The Rosa Parks story is interesting because she did something that was clearly good in the eyes of many but against the law anyway and that was 'bad' in the eyes of only a slight majority at the time.

That same thing can be said of Aaron Swartz, there are many people that feel the same way, that locking up knowledge behind paywalls is both immoral and that it impedes progress, but a majority can't be found to take on the business interests that control the flow of knowledge.

Unlike with Al Capone, we're not talking about flooding the streets with an intoxicating liquid, we're talking about to something that should be a basic human right here: the right to educate yourself through accessing our communal pool of knowledge. If there is one interesting thing about our current form of democracy it is that people routinely vote on a few narrow issues and get a whole pile of non-related items pushed at them going directly against the interests of that same majority.

Sometimes you have to do more than just sit on the wrong chair for a while to make a noticeable difference. Lots of people have been doing the equivalent of that for a long time now without much progress being made. I guess for Aaron that speed of progress just wasn't enough.

And just like Al Capone he wasn't charged with spreading the knowledge, he was charged with the computer crime equivalent of tax evasion, the breaking of some terms of service and evading some very basic bans on an otherwise terribly insecure network where everybody had access to that knowledge.

The internet doesn't care about censorship it is said, it will route around it. But someone will still have to program those routers and that where people like Aaron come in, they observe and identify bottle-necks, then proceed to fix them. If your gravy train ride depends on holding bits hostage and dribbling them out to the public at a rate or in a way that you can control then you really should go and read Nick Negroponte's 'being digital' again.

It's been said that I don't like JSTOR. I have no feelings positive or negative towards them, just like I have no such feelings towards dinosaurs. They're going to go away one of these days because their useful lifespan is almost at an end, disrupted by the combined cheap costs of storage and communication.

strlen3• 14 years ago

False dichotomy: he's neither the Capone nor Rosa Parks. He clearly did not do it to benefit himself directly as Capone did.

Now let's assume for a second that booze is just as important as scientific research. He would be equivalent to an anti-prohibition activist that ran a boat to Canada to pick up booze, but only charged for costs of operating the boat and the purchase price of the booze (operating at no profit), and never drank any himself.

He would not want to get caught for two reasons: he would not be able to provide the booze to those who need it and it would interfere with his plans to run as an anti-prohibition candidate which he can't with a felony on his record.

Utility is discrete rather than linear here: the cost of going "clean record" to "petty felon" is greater than going from "petty felon" to "petty felon with another conviction" (non-violent felonies are usually not subject to three-strike laws).

So here's what I would find a fit punishment:

* Monetary retribution to MIT and investigating agencies (as well as JSTOR if they so choose). Capped as to be reasonable.

* Misdemeanor conviction subject to being expunged if his record stays clear.

* No jail sentence, but perhaps community service that involved tutoring jail inmates (it would give him a realistic view of what jail is like).

* Some form of supervised parole with the condition that doing what he did again would mean jail and a felony charges.

* No restrictions whatsoever on his speech, but he should he prohibited about talking of his exact punishment/settlement (so that it's imagined to be more harsh than it really is).

Overall, maintain high incentives for him to not break the law again and to instead use other means to change it.

That does have one problem, however: it does not deter others from doing the same. Yet, as far as I understand, there aren't that many people seeking to do what Aaron did: the intersection between "people willing to torrent copyrighted material that they gleaned by breaking captchas with a script" and "people strongly supportive of open access with no profit motive" consisted of Aaron.

What he did was rare and unusual, so punishingly him harshly would do little to reduce crime -- there's no one else to deter.

dchichkov5• 14 years ago

In some cases just fixing things may look like rule-breaking.

Imagine, you need to download a file from a server, but your wireless connection keeps dropping. You don't really know why. Maybe some problem on the network, or improperly configured web server. You don't know. What would you do?

Would you go, and start soliciting network administrators, or contact web server administrators? Probably no, right? You'll just try to fix things. Solve the problem, so it would work. You will try downloading from another network or another IP address. Tweak your download settings, and so on.

I think that's what Swartz was doing. Not breaking in, but just trying to make download script work. He didn't know that network administrators were trying to stop him. And he though that network problems that he was facing were just that - random network problems. Unreliable wireless with some bugs in the traffic management system.

btilly11• 14 years ago

Sorry, there is no reasonable interpretation of the facts of this case under which Swartz did not understand that there were people attempting to block his access to the MIT network and JSTOR.

jacquesm5• 14 years ago

Anybody that does any kind of high volume crawling knows about rate limiting and knows that evading those rate limiting blocks is circumvention. Having a door slammed in your face then going around to find another door indicates that you know that door was closed because of you.

anigbrowl3• 14 years ago

A hacker or an entrepreneur is someone who breaks rules to create something.

That definition really begs the question [1]. A simple counter-example: Google didn't break any rules when it launched a search engine built on pagerank rather than conventional indexing. They broke convention.

Talk about 'breaking the rules' sounds great at motivational seminars or in marketing speak, but metaphors don't make for credible legal or policy arguments. We give up a degree of individual autonomy in such matters and do things by consensus instead because historically this has proved preferable to resolving disagreements by force - as the Declaration of independence has it, people institute governments to secure their rights to life, liberty and the pursuit of happiness, as opposed to Hobbes' vision of anarchy as 'a war of all against all.'

1. http://en.wikipedia.org/wiki/Begging_the_question

temphn3• 14 years ago

I'd very strongly disagree there. Read the history of Google, and you'll see just how many people they pissed off in scraping the web. Launching snippets risked "copyright infringement" on a massive scale. Google Books: ballsy scanning without permission, opt-outs for individual authors. Google Maps Streetview: ditto. Gmail: ballsy advertising based on machine learning with individual messages.

Talk to anyone there in the days of Early Google. They were all about breaking rules.

Tloewald2• 14 years ago

Democracy is the worst form of government, except for the alternatives (Churchill — maybe with miswording).

atas• 14 years ago

This too was my main objection to the article. How could a single hacker pose a threat to democracy? And is it really democracy?

mpyne5• 14 years ago

It's not the job of the prosecutors to only prosecute those who could individually threaten democracy all by themselves.

vph2• 14 years ago

You are sounding as though in order to be creative one must break the laws.

bcoates2• 14 years ago

The one objection I have to Kerr's otherwise excellent article is that he entirely ignores the policy aspect of Prosecutorial discretion.

Lots of people openly violate federal criminal laws. An enormous number of them, like Swartz in this case, do so non-openly but in a way that a trivial amount of investigative effort would reveal. The vast majority of them are not charged.

This selective prosecution is a de facto policymaking process. It's not enough that the prosecution not be an abuse of discretion, it needs to also be good policy. Saying that the law needs to be amended to stop enforcement might be the technically proper thing to do but it's not the only option open to opponents of the law.

mpyne5• 14 years ago

No offense but it's hard to call this "selective". If Aaron had simply given up during one of the first few roadblocks put up that would have been the end of it. No calls to the police, no charges, no nothing.

MIT didn't even know it was Swartz until he stupidly re-entered the network closet for the second (or third?) time and finally got caught by the police that MIT had to make special arrangement to have standing by.

If you make yourself the object of a inter-agency sting operation then it's a pretty fair bet that there might just be charges coming en route when you get caught.

btilly11• 14 years ago

I think it will take me a day or two to properly digest this article. That is a good thing. Here are a few gut responses in semi-random order.

1. I absolutely agree that the whole process of plea bargains, threats, etc is unethical, immoral, etc. And we should object to it in all cases, not just when it happens to someone like Aaron Swartz.

2. I absolutely disagree that Aaron's actions would seriously threaten the revenues for journals. Once a journal has been delivered, it has been paid for. Retroactive access to past journals does not lessen the desire for libraries to proactively gain access to future ones. The fact that journals are willing to let articles onto JSTOR where they are often available for a nominal (and in many cases a nonexistent) fee says very clearly that the marginal value that Aaron would have taken would be miniscule.

3. I strongly disagree that the process by which the USA acquires more laws at this point can be fairly described as "democratic". There is a minimum facade of democratic input, and in rare cases (eg SOPA) this can redirect the system. But on the whole the system is not democratic, and describing it as such tends to give people a false sense of complacency.

4. That said, I agree with the general principle under which Orrin would have recommended sentencing. But I emphatically disagree with the specific conclusions there. We have ample evidence from, for instance, the ease with which JSTOR got Aaron to back down and return materials before the prosecutors arrived that he actually could be deterred. There was every reason to believe that he found jail to be a very threatening prospect, and the plea bargain suggested by his lawyer would have, in fact, deterred him from future action. Given that, there was no need to seek large punishment.

5. The specific suggestions on reforming the CFAA seem very good to me. If we're optimistic that the Supreme Court will set precedent interpreting the CFAA in a very good way, then we don't want Congress muddying the waters with a provision that can confuse future courts about whether they should follow the reasoning in precedent or guess at the intent of worse recent statutory law. The ease of elevating crimes to a felony strikes me as a very clear problem.

I could go on, but as I say it will take me some time to digest this article.

newman3143• 14 years ago

I'm a big fan of understanding motivations. Prosecutors try to go hard on people so that they "look tough".

Think about how disgusting it is to build your career on how many wins you have and fuck the collateral damage (pardon my French) which in this case was Aaron.

Until prosecutors are not motivated to act this way, we will continue to see excessive behavior from them.

rhizome• 14 years ago

It seems reasonable under Kerr's standards and interpretation that action against USA Ortiz, MIT Pres. Reif, and AUSA Heymann, special deterrence can be used to take their jobs, disbar them, or otherwise affect their career prospects in their current disciplines.

The problem with legalistic interpretations is that they presume validity of the current laws as they stand, and that any change amounts only to a chipping away at overreach. Frankly, I'd prefer a repeal of the CFAA until they can get it right, citizens are not well-served when authoritarian lawmakers ask for twice what they'll settle for and receive 150%.

pseingatl3• 14 years ago

Professor Kerr says we should forgive the prosecutors because “they all do it.” This is hardly appropriate and a slur on the many professional federal and state prosecutors who do not engage in these kind of tactics.

The fact of the matter is that in the United States a trial over a supermarket slip and fall is more fair than a federal criminal trial. Federal trials are trials by ambush. A defense lawyer has no opportunity to depose the witnesses against his client and usually only learns of their identities after the jury is empanelled. There is no way to determine if the witness has lied in the past or has reason to tailor his testimony to the prosecution’s case. The war on defense attorneys in the 1980’s was successful. Now almost all federal defense attorneys are underfunded public defenders or panel attorneys. The prosecutor has the resources not only of his own office, but of investigative agencies as well. Panel attorneys have no one and not only that, often have to finance the defense out of their own personal funds.

It is a pleasure to try a case against a federal prosecutor who is fair and does not game the system. Based on the comments from Swartz’ defense attorneys, that was not the situation in Ortiz’ office.

pdonis15• 14 years ago

He didn't say we should forgive the prosecutors. He said we should understand that the way the prosecutors handled this case was not an isolated incident. Maybe there are plenty of prosecutors that don't act this way, but there are also plenty that do.

jeswin• 14 years ago

It doesn't say whether they are seeking 35 years. But this is from their website:

If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.

http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR....

rsingel• 14 years ago

Orin is a good prosecutor (though retired). But let me drop two fine pieces of evidence to refute his statement that Aaron was going to put all of JSTOR into the public domain based on a manifesto.

1) Aaron's previous escapade was making PACER file available through huge downloads. Those files were all non-copyrightable and have become the basis of awesome open-source systems including RECAP and Justia.

2) Aaron had also downloaded some 400,000 Westlaw legal articles and then analyzed them to figure out which were sponsored. The resulting study was published in the Stanford Law Review in 2008. http://www.stanfordlawreview.org/sites/default/files/article...

A very large percentage of the files Aaron downloaded were out of copyright. Other than a manifesto, what proof did the prosecutors put forward that Aaron was going to publish in-copyright material?

Furthermore, without any evidence, Kerr says Aaron broke into the networking closet. It had no lock and no sign saying no entry.

But Kerr's clearly in prosecutorial mode. I much preferred his mindset when he was fighting the feds abuse of the CFAA in the Lori Drew case.

tptacek2• 14 years ago

The docket suggests that 300,000 of those files were out of copyright. He downloaded over 4 million, didn't he?

The prosecution did in fact offer evidence that Aaron knew he was trespassing. The closet didn't have a sign, but the building had many.

michaelfeathers• 14 years ago

I think it’s important to realize that what happened in the Swartz case happens it lots and lots of federal criminal cases. Yes, the prosecutors tried to force a plea deal by scaring the defendant with arguments that he would be locked away for a long time if he was convicted at trial. Yes, the prosecutors filed a superseding indictment designed to scare Swartz evem more in to pleading guilty (it actually had no effect on the likely sentence, but it’s a powerful scare tactic). Yes, the prosecutors insisted on jail time and a felony conviction as part of a plea. But federal prosecutors use those tactics all the time.

That doesn't make it right.

mtgx2• 14 years ago

Yeah, definitely agree there. Just because "everyone does it" doesn't make it an excuse. Living in a country where bribing is pretty common, that's what you here all the time about it, too - that everyone does it.

pfortuny• 14 years ago

Everybody knows financial engineers at investment banks use cocaine on a daily basis.

Should you use it if you want to become one?

belorn• 14 years ago

>When someone engages in civil disobedience and intentionally violates a criminal law to achieve such an anti-democratic policy goal through unlawful means — and when there are indications in both words and deeds that he will continue to do so

I thought Swartz signed a deal with JSTOR that said that he was to never again going to download more articles. What indications existed then that he was going to continue with the specific crime he was charged with? The Manifesto, while provocative, is generic in form and should not override a more specific document stating a clear purpose of not continue with the violation of this law in this case.

bambax2• 14 years ago

> If we don’t want a world in which prosecutors have these powers, we shouldn’t just object when the defendant in the crosshairs is a genius who went to Stanford, hangs out with Larry Lessig, and is represented by the extremely expensive lawyers at Keker & Van Nest. We should object just as much — or even more — when the defendant is poor, unknown, and unconnected to the powerful. To do otherwise sends an extremely troubling message to prosecutors that they need to be extra sensitive when considering charges against defendants with connections.

This is exactly what bothers me with this whole affair. 4 million people are behind bars in the US and no one cares; most of those people have committed "crimes" with no victims but themselves (if even that)... and no one cares.

And suddenly the same prosecutorial tactics are used on one of us (one of us hackers, not one of us geniuses, obviously) and ends in tragedy, and we ask for the removal of the prosecutor.

This one prosecutor is not the problem; the US criminal system is the problem.

gknoy• 14 years ago

Frankly, I do care that many people are jailed in a degree which I consider excessive - and I imagine most of us here do as well. We just haven't had a concrete rallying point until now.

mpyne5• 14 years ago

Yes we did. We had one when Aaron Swartz was still alive but on charges. The consensus was pretty much that he'd finally actually done something legitmately illegal, so if people here really were that worried about felony this vs. misdeameanor that, or the legal process in general, then they'd had plenty of time to do something about it.

sjreese• 14 years ago

The point Information is power. But like all power, there are those who want to keep it for themselves. The world’s entire scientific and cultural heritage, published over centuries in books and journals, is increasingly being digitized and locked up by a handful of private corporations. Want to read the papers featuring the most famous results of the sciences? You’ll need to send enormous amounts to publishers like Reed Elsevier..

There are those struggling to change this. The Open Access Movement has fought valiantly to ensure that scientists do not sign their copyrights away but instead ensure their work is published on the Internet, under terms that allow anyone to access it. But even under the best scenarios, their work will only apply to things published in the future. Everything up until now will have been lost.

That is too high a price to pay. Forcing academics to pay money to read the work of their colleagues? Scanning entire libraries but only allowing the folks at Google to read them? Providing scientific articles to those at elite universities in the First World, but not to children in the Global South? It’s outrageous and unacceptable.

“I agree,” many say, “but what can we do? The companies hold the copyrights, they make enormous amounts of money by charging for access, and it’s perfectly legal —there’s nothing we can do to stop them.” But there is something we can, something that’s already being done: we can fight back.

Those with access to these resources — students, librarians, scientists — you have been given a privilege. You get to feed at this banquet of knowledge while the rest of the world is locked out. But you need not —indeed, morally, you cannot — keep this privilege for yourselves. You have a duty to share it with the world. And you have: trading passwords with colleagues, filling download requests for friends.

Meanwhile, those who have been locked out are not standing idly by. You have been sneaking through holes and climbing over fences, liberating the information locked up by the publishers and sharing them with your friends.

But all of this action goes on in the dark, hidden underground. It’s called stealing or piracy, as if sharing a wealth of knowledge were the moral equivalent of plundering a ship and murdering its crew. But sharing isn’t immoral — it’s a moral imperative. Only those blinded by greed would refuse to let a friend make a copy.

Large corporations, of course, are blinded by greed. The laws under which they operate require it — their shareholders would revolt at anything less. And the politicians they have bought off back them, passing laws giving them the exclusive power to decide who can make copies.

There is no justice in following unjust laws. It’s time to come into the light and, in the grand tradition of civil disobedience, declare our opposition to this private theft of public culture.

We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that's out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerilla Open Access.

With enough of us, around the world, we’ll not just send a strong message opposing the privatization of knowledge —we’ll make it a thing of the past. Will you join us?

jacquesm5• 14 years ago

I love this George Bernard Shaw quote:

"The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man."

Orin Kerr strikes me as a very reasonable man. There are lots of reasonable men. They're all going to stand around and argue about how many legal angels can dance on how many pins.

Meanwhile, unreasonable men are plotting on how to make progress. Aaron Swartz struck me as a particularly unreasonable man. He made lots of progress until he ran into these artificial roadblocks.

Laws are there to benefit society, not as a brake on progress or as a way to protect outdated business models against the greater common good, especially when it comes to such things as access to knowledge.

karma_fountain• 14 years ago

Orin did suggest quite a few ways in which the law could be changed to become more reasonable.

vph2• 14 years ago

The quote has lots of zing to it, but it ain't true.

What it says essentially is that progress is an outcome of revolution. While revolution leads to big changes, progress is a product of evolution. And evolution has to be done in "reasonable" ways by "reasonable" man.

To say that "all progress depends on the unreasonable man" is wrong.

subsystem2• 14 years ago

"I think that some kind of criminal punishment was appropriate in this case. Swartz had announced his commitment to violating the law as a moral imperative in order to effectively nullify existing federal laws on access to information."

This seems to be the going mistake. I can understand if someone has the opinion that the case should be tried in court or even that the charges were correct. But stating that someone should be punished based on their previous statements is dangerously close to political repression.

gadders2• 14 years ago

It's refreshing to read an article on the case that from a disinterested expert on the law, rather than the two sides in the case.

Well worth a read.

cgio• 14 years ago

I am especially concerned about the author's logic /q When the police catch someone in the course of criminal conduct and intervene mid-way, the punishment is properly based on what the person was in the course of doing rather than how much he succeeded before he was caught.

Let's say I issue a manifesto where I support free food for all. Would me picking up things in a store mean that I wanted to steal them or give them for free? The association between the man's principles and his assumed purposes is in direct contrast with the other author's argument on fighting lawfully. Even if he downloaded one article he could share it. Should he not be allowed access to information just because he was fighting for freedom of information? Do laws now impose principles and beliefs? Or does a principle render us in self-imposed seclusion until the relevant laws change? Highly problematic and indicative of how prosecutors argue the cases. And this man is considered an expert?

czr803• 14 years ago

He just means that if you picked up food and walked out without paying it wouldn't matter if you were caught in the parking lot while trying to escape(and so could return the food immediately) or caught two weeks later at home, long after the food has been eaten.

gadders2• 14 years ago

One question that occurs to me - does a felony conviction prevent you from taking political office in the US? Given Aaron's activism, might that be a reason why that was a sticking point?

Tloewald2• 14 years ago

The article is excellent.

"Finally, I think the instinct to blame the prosecutors in this case should be checked because it is fueled in significant part by a human but improper motive: Making sense of Swartz’s suicide. When a young person commits suicide, there is a natural instinct to restore a sense of order to the world by finding someone to blame. We deal with the sense of shocking and unimaginable and senseless loss by pinning the blame on someone to create a tidy narrative of wrongful actor and wrongful act."

You can disagree with copyright law, mourn Aaron Schwarz, and yet not blame prosecutors for Aaron's suicide and have a sense of proportion.

gavinlynch• 14 years ago

"I think this is really one of the core reasons so many hackers disagree with this lawyer mindset. A hacker or an entrepreneur is someone who breaks rules to create something. Innovation and consensus are antonyms, not synonyms. Innovation does not happen by committee."

Honest question, curious about response: I get your general point about "breaking rules", but do you think it needs to be taken literally to the point of breaking laws? Is that an imperative call to action for all modern hackers? And furthermore, would you recommend Aaron take this action again, if given the choice? Would you recommend we all take similar actions?

ep103• 14 years ago

Yes to all of the above questions. As to the specific one about breaking rules vs laws, a moral or patriotic individual has a civic duty, in a democratic society, to disregard or oppose rules and laws which they believe to be immoral or wrong. Hackers, of all people, should know this.

mpyne5• 14 years ago

> a moral or patriotic individual has a civic duty, in a democratic society, to disregard or oppose rules and laws which they believe to be immoral or wrong

No offense but if you believe that only thing binding on people is moral imperatives, then you don't believe in a democratic society, you believe in something closer to an anarchical one.

The whole point to a democratic society is that the people set the rules, but there are still rules. You're talking about something else.

The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion

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