sociotech

A rule (called prosecutorial immunity) without which it would be almost impossible for the criminal law to function. Would you prosecute Bernie Madoff knowing he could tie you up in court, personally, with millions of dollars' worth of lawyers?

Even without that rule, a tort law claim against Ortiz or Heymann would probably not succeed, absent some proof that their intent was to torment him emotionally. Lessig and bizarre bloggers like Danah Boyd seem to occasionally accuse them of that, but it all seems rather groundless.

You should look more closely at the history. RSS (at least, the branch of it that people use), CC, and Reddit would have exactly the same form they have today - exactly! - without Aaron's involvement.

It reads like a parody of journalism.

I don't know anything about the Smith case, and I am not saying you (and Cullen) are wrong to draw the comparison and ask questions about it.

However, it is very difficult to make this kind of backseat-driver judgment. I'm not arguing that people shouldn't look into it. They should. But different cases are often treated very differently. Perhaps Smith's case would have been harder to prove to a jury. Perhaps he had better procedural objections. It doesn't just come down to how bad anyone thinks the crime is.

I saw that too and read the Standard Law Review article. He is not credited it in. He may have helped a law student write a Python script, which she then used. The article does mention that a Python script was used to collect some data.

What exactly is Boyle's argument? He rehashes the now-typical hagiography. Then he seems to argue that should influence legal policy. This is wrong for two reasons. One, the hagiography is factually wrong, no matter how generously anyone uses the word "genius." Two, conclusions about prosecutorial discretion do not follow from it.

We need to distinguish between decisions made before and after Aaron's death. It is totally fair to say that Kerr's blogposts - or my attempts to remind programmers what they thought about Aaron when he was alive - lack "sympathy." But what exactly does Boyle think should have made the prosecutors sympathetic to Aaron when they brought their charges against him? His lawyers' claim that he might be psychologically unstable? His desire for attention from the geek community? His on-and-off friendship with Lessig or Doctorow? His history of writing code as a volunteer? His involvement in a sale of a company to Conde-Nast?

To use my example from another thread, let's say Brian Behlendorf gets arrested for DUI while on the way to a conference to talk about free software. Should we be sympathetic because he gave us the Apache httpd server (something a thousand times - maybe a hundred thousand times - more significant than any code Aaron ever wrote)?

By the by, I do feel like a jerk for not being more "sympathetic" to Aaron now that he is dead. But when the people around you turn your case into a political football and say the government killed you, it is fair game to try to put things into perspective.

"Crime" often relies on "pre-crime." The legal definition of "burglary" is breaking into a building with an intent to steal or commit another serious crime. Prosecutors have to decide whether they think they can prove "burglary" or can only prove "trespass." The jury decides whether the prosecutor has done so beyond a reasonable doubt.

Aaron never published anything in the Stanford Law Review. The student article in the Stanford Law Review that seems to form the basis of your claim doesn't even credit Aaron.

Google:

site:http://www.justice.gov "if convicted, * faces"

57,700 results.

There are many things to criticize about the universe, but the standard form language on US Attorneys' press releases is probably not the biggest thing we should be worried about. Linus, as he often does, is speaking too confidently and too hastily.

And the press releases always state the statutory maximum, which as I and many others have explained, Aaron was never actually threatened with. His lawyers knew that. He had to know it. Lessig either knew it or should have known. The only reason we're talking about "35 years" is because of Lessig's irresponsible PR.

I'm trying to think of a hacking analogy. Imagine if you write a routine for loop with an int increment and someone, trying to understand the code, asks "wait, how many times can this run?" And you respond with INT_MAX. In most situations, that would be a misleading, borderline autistic response, with no relationship to the real world in the normal case.

I just read this linked article and think it is excellent and very thoughtful. It is much more human than any of Lessig or Doctorow's self-serving comments, and it fits with my recollection of the history.

I mean, people are right that all of this is separate from calls for plea-bargaining reform. I'm all for that. I'm not sure this kind of offense is the worst example of the lot, but I'm all for it. (Decades for drug possession is worse. Life imprisonment, [in facilities that are not at all, shall we say, minimum-security] for child-porn traded on IRC is probably worse, at least when it doesn't make child abuse more likely.) But it should all be reformed. That's a big task, of course, but that doesn't mean people shouldn't try.

I don't even mind if people use this case to help with that. But it's easy to grow weary of all the manipulation and distortion and hypocrisy by the people that your link discusses.

"This makes me wonder whether your senses have been dulled by taking too much of that standard practice for granted." Yes, that is totally fair. I have been thinking hard recently about the role of gradual change vs. radical change.

I agree about "taste" too. I'd never have said anything, but there comes a point in the popularization of a case where truth starts to be important.

Bingo. I've been trying not to say petty things out of respect for recently departed people and his family, with whom I sympathize for this terrible, terrible thing.

But the radical loss of perspective here is just jarring, and the case is big enough now that it's hard to refrain from trying to put things into perspective. I am aware of the full history, having been a programmer with significant open-source and other contributions through the 90s and early 2000s. Aaron is being totally misremembered.

Of those who knew of him before his death - and he was not a "celebrity" or "famous" or considered "brilliant" or a "genius" by technologists - most knew him as a blogger. He was actually a very good writer, even from a young age. He wrote with clarity and purpose, and he had many interests. His technical output was not major. To pull a random name out of a hat, his contributions were less than someone like Craig McClanahan and far less than someone like Brian Behlendorf. Basically, Aaron got a chance with Y Combinator, which he parlayed into a merger with Reddit's parent company, mostly through personal connections. Aaron didn't get end up getting along with Alexis or Steve, who considered him immature, dramatic, and unreliable. Reddit was shortly rewritten entirely, and web.py was too buggy to make any further contribution to Reddit. Aaron was fired from Reddit's acquirer because he didn't bother doing anything after the payout. He then floated around, wrote a few minor libraries and some more interesting blog posts, and then became a very good activist worthy of deeper respect on that front. He wasn't actually a tech celebrity before his death. He didn't "invent RSS." He didn't singlehandedly "defeat SOPA." His work on RSS 1.0, a version of RSS that was never significant itself, was mostly of interest to the semantic-web people, who have themselves have never made much of an impact, although the work is interesting to some.

I didn't know Aaron personally, but I do think his volatile relationships with others and his desire to be famous within this community were a source of extreme anxiety for him, though probably more so in the past than recently. But his professional life was, perhaps understandably, extremely frustrating for reasons that had nothing to do with his criminal case.

That's not an attack. Most people don't make major technical contributions. But I wish people would see this case for what it is - a volatile activist who pulled a stunt that spiraled out of control.

But that's ridiculous. The only thing that made this case big news was his death.

It's worth reading over old HN threads on the criminal case. The consensus was pretty close to my position now, which is that prosecutorial discretion worked pretty well in determining the charges. That doesn't make the outcome any less sad; nor does raging at the wrong people.

Look, I guess you have no reason to believe me, but this is just not how the US government works. There's no staffer in the Administrative Office of the courts who's upset at Aaron and tells the United States Attorney for the District of Massachusetts to throw the book at him.

The alleged crime WAS NOT merely violating the terms of service of a website. People really need to study the law before critiquing it.

If the government couldn't prove beyond a reasonable doubt that he intended to distribute the public-domain part of the archive, he would have won the largest part of his case, or at least received a very minimal sentence (with no prison time).

If you think US Attys prosecute people because they organize peacefully against copyright laws, you're living in a different world from the real one.

"If it were only a '6 month low security setting' being discussed, why wouldn't Aaron have been told of this?"

He was told. If you can even imagine that he wasn't, you need better news sources. This kind of anti-reality nonsense sounds an awful lot like Tea Party conspiracy crap. To effectively critique the law, everyone needs to learn how it works.

No, no. Some of the articles were in the public domain, but not all of them. (The precise ratio could have been a relevant fact at sentencing for some of the charges, because it would speak to the monetary value of what his actions threatened to publicize in violation of copyright law.) Copyright violation is routinely both a civil and a criminal manner.

He would not have been in the clear if he scanned and publicized the articles himself.

Well, it's not true either way. But that too is very rare. There's just too much risk with it, and it's not how most nontechies think. Look what actually happened in this case: Ortiz's husband issued an ill-thought-out, insensitive statement in frustration on Twitter, and then eventually there was a calm, rational press release from the office.

Then they'll move on. They've got thousands of other cases, many of which have made other communities similarly angry. That we get 35,000 signatures for an online petition mostly speaks to the fact that we're online.

Maybe. It's the administrative system we've got, though, and we should be talking about how to reform the whole thing.

Note how much Orin Kerr recently agreed with the points I made days ago here on this subject.

To a center-left lawyer like me, this piece sparks the same concerns and the same dismissiveness that I feel when I read Tea Party rants.

This "TOS" stuff is another red herring. Even the EFF said the new proposed change in that law wouldn't have stopped the charges in this case.

This case was about more than doing something that JSTOR told users not to do. Yes, it involved that too, but it also involved taking materials that others had copyright to and threatening to make them publicly available, which could have disrupted many organizations' functioning.

Would you be surprised if someone pulled four million videos off of YouTube (or books off of Google Books) and torrented them, and then was prosecuted and asked to serve six months?

Archive.org has the whole docket. It used to be a reference on his Wikipedia page, but it looks like it's not there anymore. You can find it in the history.

I haven't looked into the details, but "new technology" means something different to the public than it means to us. Publicizing a valuable database sounds like it's in their mandate.

"Can I be prosecuted and sent to prison for it?" Probably not, but even if so, this is where prosecutorial discretion comes in. This is what people aren't understanding.

If you avoid a channel ban, or sign up as "Mickey Mouse" to get free WiFi, nobody's going to prosecute you. If they did, you "stole" $30 worth of stuff and the penalty would be tiny.

I'm not criticizing Aaron, but what he did was to intend to compromise a valuable database. If the gov't could prove beyond a reasonable doubt that he intended to make that valuable database public, that is a serious harm at issue.

You might (and I might) not agree that the harm is important, but that's what many parties (journals, authors, JSTOR, universities who pay JSTOR) have relied on. Do we think one person should change the rules just because the can?

Also, I didn't think even libertarian extremists would think that just because you installed windows rather than armed steel plating around your house, nobody could be blamed for breaking in. And I hate to say it, but the security - the combination of personnel and online monitoring - WORKED in this case. They outsmarted Aaron, as is clear when you read the docket. They engaged in a ruse to trap him and it worked.

Reading about this case, I've seen lots of people called "shills" for the US Atty's office or the DOJ. You probably won't (and maybe shouldn't) take my word for it, but that's just not how these organizations work. It isn't even close.

People in small communities often overimagine their own importance. That's not an insult, just a psychological truth. The DOJ doesn't care what people here write, and if you talked to people there, from political appointees down to staffers, most of them would fall somewhere between (a) pleasure that the democratic process is proceeding through random or organized discussion online and (b) snide dismissal of hackers they don't understand. They don't hire PR people to infiltrate discussion boards on general issues. (Of course, the FBI does hire people to infiltrate criminal communities.) Think of any cases of astroturfing that have come to light. It happens by hotels that want to post undeserved reviews on TripAdvisor, startups (and even charities, as Aaron once pointed out) that want to get attention, etc., etc. The DOJ and US Attys aren't in the astroturfing business.

Another thing that should give people some perspective: It's laughable for people to have suggested, as I think a dozen did, that the new limit for White House petitions (100,000 instead of 25,000) had anything remotely to do this this case. Most people in the administration haven't heard of it and never will. There's a lot going on in the world. ;)

I'm a reformed programmer who's now a lawyer (with a pretty high profile, but no connection to the US Atty's office), and I have another account that is more easily tied to my real-life identity. I'm not on HN a lot, but I know the community pretty well.

This whole case is too politically touchy for me, which is why I'm on this different account. The last thing I want to do is get the attention of Anonymous, or anyone else. I am connecting through Tor when I write this. Maybe that underlies my fear of the mob mentality and the idea of witchhunts. ;)

The "assistant" US Attorneys are lawyers, not what you'd think of as "assistants." The "US Attorney" is a politically appointed senior executive, while the "Assistant US Attorneys" are career staff lawyers. The "US Attorney" signs most filings, but the career staff does the significant legal groundwork on almost everything.

I agree that that's the right question. The intended "victims" were journals and JSTOR. I'm glad JSTOR didn't lean heavily on the prosecution, but they're not the only party who has a stake in this, and it's routine for government not to be simply a "victim's rights" organization that lets private people tell them what to do. Many small journals depend on subscription fees from services like JSTOR.

But look, I'm not saying the law is perfect. There are whole encyclopedias written on legal theory about people's responsibilities to follow arguable but imperfect laws, and that is a big debate. The essence of the case here is that a "long ranger" activist who acts to publicize a massive database does threaten a significant financial disruption to many parties, and that is "harm" even under JS Mill's "harm principle." It's not like possessing drugs (which of course people go to harder jails for 20 years for possessing).

If I am recalling correctly, a key point in the government's case was that Aaron was going to distribute the documents to the world had he succeeded. If so, they would have had to prove that beyond a reasonable doubt. If Aaron had a good case that he was just downloading the documents for his own personally curiosity, he would probably have won, and it would be easier to say the prosecution was overblown.

But all that seems to have happened here is that the government offered 6 low-security months to someone who the government believed it could prove, beyond any reasonable doubt, was intending to undermine the revenue model of a significant part of the world's academic infrastructure. That doesn't mean that revenue model is praiseworthy, but the law doesn't let you take matters into your own hands.

I don't want to sound dismissive, but the conspiracy theory stuff - that they targeted him because of SOPA or whatnot - is not something that anyone I know takes seriously. I am trying to say that mildly and respectively. (There are many harsher ways to say it.)

It really isn't. Talk to some lawyers. It's exactly what happens in criminal cases like this, and that's not obviously a bad thing. I'm glad lots of people are asking questions about the plea system, but it's worth getting informed before reaching simple conclusions.

What happened here was a proposal where the US Atty. would agree to ask for six months in a minimum-security prison (where Aaron could have, for example, read whatever he wanted and had debates with financial criminals for six months), would agree to let Aaron's lawyers present an argument for a suspended sentence ("probation"), and let the judge decide. The judge here has a kind of harsh reputation, but, from talking to local lawyers, it seems that that mostly comes from being pro-government. Aaron would probably have gotten six months.