The witch hunt was inevitable due to the sheer emotion we all felt during this tragic event. It is correct to step back and not look at getting one or two attorneys fired - but rather look at the law itself, and reflect on the absolute absurdity of how it can be applied. If the law is the law, and the law says that someone downloading academic papers carries the same punishment as a murderer or rapist, then the law needs to be changed. A fundamental shift needs to take place.
We can take a page from:
"Dear Congress, It's No Longer OK To Not Know How The Internet Works"
And follow with:
"Dear Attorneys, It's No Longer OK To Not Know All Hacking Isn't Terrorism"
The reason to seek to end the political career of Ms. Ortiz is not because her hounding of aaronsw was inconsistent with the behavior of other federal prosecutors, but rather precisely because it was "what any good federal prosecutor" would have done.
There are so many criminal laws on the books--and federal law enforcement powers are so great--that any individual who is identified as a political target can have their lives ruined, regardless of the moral justice of the charges they face.
Furthermore, in spite of what this article says, prosecutors frequently use their discretion when choosing to file charges. The beneficiaries of that discretion are often the politically connected, examples of which are numerous and infamous.
In other words, the filing of these charges against Aaron Swartz was an inherently political act and requires a political response.
That these charges were morally odious cannot be doubted, and yet articles like this ask, were they nonetheless correct? By asking that question they attempt to exculpate Ms. Ortiz and her subordinates.
This prosecution was "correct" only because people like Aaron Swartz who seem powerless are the kind of people who go to jail all the time. The effort to end Ms. Ortiz' career is an effort to make prosecutions like this "incorrect" by making people like Aaron Swartz more powerful, because just as the powerless are targeted in this very way all the time, similar digressions by the powerful are frequently overlooked.
When mercy and proportionate justice is granted only to the powerful, then any quest for mercy and justice must concern itself first and foremost with power.
In the American political system, power is gained and exerted by imposing political consequences on those politians who transgress against your objectives.
I think the attorneys getting fired would be a great first step. After all they hounded Aaron and people like him to send a "message". Let them get sent a "message" in return.
Yes, after all, "an eye for an eye" is a great system of justice.
No, they shouldn't be fired for doing their job, regardless of the consequences.
It is a tragedy that Aaron took his life, but nobody can argue that it was an appropriate response to the challenges posed to him.
You can't blame a prosecutor because Aaron reacted violently to them doing his job, just as you can't blame violent video games for Columbine or D&D for kids hurting themselves in the forest with swords.
They are all contributing factors, but it is the core mental illness that is at fault.
> You can't blame a prosecutor because Aaron reacted violently to them doing his job
Perhaps they cannot be blamed for his response, but a myriad of evil things have occurred in this world at the hands of people "just doing their jobs". The mere fact that someone is being paid for them doesn't justify vicious, cruel, and/or outrageous actions that have predictably bad outcomes. Further, it could easily be argued that their pursuit of this case went beyond the normal scope of their jobs.
While federal criminal cases are technically brought on behalf of the government, in many cases the charges are dropped when the victim expresses disinterest in having the individual prosecuted. In this case, they were attempting to lock someone up for decades in a case where the alleged victims didn't even want the perpetrator prosecuted. Since the victims had no interest in it, the only remaining motivation for such an aggressive prosecution would be to put another notch in the belts of the US Attorney's office prosecuting the case. That is hardly an acceptable use of taxpayer resources. It is an abuse of power aimed at furthering the individual careers of the lawyers involved.
It means that a high profile conviction such as this would have been a nice boost to their resumes, regardless of the particulars. The legal profession is somewhat unique in that being perceived as an aggressive, cold-hearted, and ruthless individual with the ability to squeeze out a win even when the facts and circumstances don't support a win is a positive thing.
> You can't blame a prosecutor because Aaron reacted violently to them doing his job
We seem perfectly happy blaming bullies when people commit suicide (including incidents where both parties were adults). Given the position of relative power of the two individuals, it's not unreasonable to draw a parallel there.
Nobody called for her imprisonment or hounding her to the point where she's going to hang herself. Just a corrective measure to a system that has clearly spun out of control. A change of career.
If the job of the prosecutor is to persecute someone, even after the "victim" resolved their issue with the offender, then they have a shitty job and should just up and quit.
There are better jobs out there: ones that don't destroy the lives of good people.
Even good people fuck up. Aaron committed crimes and got himself in trouble. Aaron then killed himself. There are many people who could have done things differently to prevent this from happening but why should we point fingers?
JSTOR, the offended party, sorted it all out with Aaron out of court. It was an issue of copyright infringement, not theft, but Ortiz characterised it as such. She decided to pursue it out of some misguided and rabid attempt at sticking Aaron's head on a pike a a warning to others, and to make her CV look good.
There are fingers to point, and they need to be pointed in the right direction.
Interesting take, but as with much of Ayn Rand's work, fundamentally flawed. An idea can be had independently. The idea if a computer was independently conceived upon in the UK and in Germany at around the same time. Intellectual Property laws weren't needed to "protect" the idea.
All that I really being said is that the person who comes up with an idea should be properly compensated. You don't need IP laws to do that. Many businesses agree - they file patents for inventions for their employees, and pay them a wage (and possibly a bonus).
The job of the prosecutor is indeed to continue the prosecution, even if the victim and the offender have resolved their issues. Think of a case of some victim being coerced to have the charges dropped. Would you prefer the prosecution to stop or would you prefer if the crime was resolved?
In this case probably not, though public pressure may have been a part of it. And MITs statement was less clear on that matter. However, this is not for the prosecution to decide. The prosecution should treat each case equal. If criminal charges haven been brought forward, they must be prosecuted or dismissed solely based on evidence, not based on the victims actions.
Please note that I do not think that the way the prosecution pushed the charges was right.
Neither JSTOR nor MIT brought forward criminal charges; that was done by the US Attorneys themselves. So saying "this is not for the prosecution to decide" is wrong--the prosecution decided to bring charges, so it's their responsibility if the charges were way out of proportion.
Strictly speaking this is not correct. JSTOR and MIT cannot bring criminal charges; only the US government may. They can bring civil charges on their own behalf in addition to the criminal charges, and whether the 2 parties agree to settle out of court is relevant to any civil charges brought against the defendant. This is the basis for the difference between civil and criminal law - civil law covers disputes between 2 parties and serves as a framework if the 2 parties cannot reconcile.
On the other hand, criminal actions are not just about the grievances between the defendant and the victim of the crime. In principle, crimes are committed against the people themselves (hence the case naming scheme exemplified by the United States vs. X or The People of Illinois vs. X). Even if the victim isn't particularly interested in pursuing the prosecution, the prosecutor is still within his rights to try the case. Indeed, in many violent crimes such as rape, the victim is not interested in aiding the trial. While this can sometimes derail the prosecution, it need not. Pursuing the case absent the victim's full cooperation cannot ipso facto be considered prosecutorial abuse.
a) it is MIT and JSTOR that have primary discretion in whether a criminal case moves forward (it is the government's sole discretion)
b) MIT and JSTOR are in fact responsible for bringing criminal charges (they are not - they can only bring civil charges)
c) that the prosecutor is responsible for the severity of the penalty and/or the defendant's emotional response to that penalty
My disagreement with your third assertion was more implicit so let me clarify a bit.
First, it is not the prosecutor's job to question whether a law's penalties are in proportion to the crime it proscribes when deciding whether to bring a case. Discretion over the severity of the punishment is left to the sentencing phase of the trial if the defendant is convicted, and it is highly likely that Aaron's sentence would not have been the maximum had he been found guilty (a fact I am sure his lawyers made him aware of).
Second, under what reasonable standard can a prosecutor be held personally responsible for the emotional state of the defendant? Should it be acceptable for criminal defendants to pressure prosecutors into dropping cases by threatening self-harm or suicide in the hopes that a public outcry will harm the prosecutor's career? Try to ignore for a moment that the defendant in this case has your sympathies. Would you accept that tactic from a serial killer or rapist?
It may be that the law itself is unnecessary or counterproductive. I'm certainly open to the argument that at least publicly funded research ought to be open to the public. Yet it is still the law of the land. From the facts of the case, Aaron committed an obvious crime and behaved as though he knew it were a crime. The potential price of civil disobedience is that you will in fact end up punished for it. In the end, his story (like Rosa Parks and others before him) may end up bringing about the change he wants. But to say that the prosecutor abused her authority or was personally responsible for his death is an emotional response without basis and runs counter to the very idea of a criminal justice system.
I didn't make any of those assertions. Other people in this thread might have, but I didn't.
it is not the prosecutor's job to question whether a law's penalties are in proportion to the crime it proscribes when deciding whether to bring a case.
I didn't say it was. I agree that the prosecutor doesn't decide what the possible charges and punishments are; those are taken as given. But the prosecutor certainly does decide which cases to prosecute at all, and how aggressively to prosecute them. As I understand it, this case was prosecuted extremely aggressively.
under what reasonable standard can a prosecutor be held personally responsible for the emotional state of the defendant?
I didn't say he was (I realize others in this thread have, but I didn't); I agree he isn't. But that's irrelevant to whether or not this prosecution was way too aggressive for the actual harm done; IMO it was.
The potential price of civil disobedience is that you will in fact end up punished for it.
This is quite true. But it doesn't make the punishment fair or just.
to say that the prosecutor abused her authority...runs counter to the very idea of a criminal justice system.
Maybe it runs counter to the idea of a perfect criminal justice system, but the one we have is far from perfect, and prosecutors know that. In a perfect system, every instance of a given offense would be prosecuted the same, every defendant would get a fair chance to defend themselves, and we would have a reasonable expectation of a just outcome. In the system we have, because so many things have been criminalized, there are far more offenders of the letter of the law than can possibly be prosecuted, and defendants are at a huge disadvantage vs. the system. So who actually gets prosecuted, and what chance they have at a fair hearing, ends up being decided by the prosecutor's judgment, which is often colored by their personal beliefs or political leanings. Under those circumstances, IMO it is quite legitimate to question a prosecutor's judgment when a case is treated far more aggressively than seems warranted by the actual harm done.
Sorry, but no, they weren't "just doing their jobs". They were operating way outside the parameters of their jobs, which - as extensions of the Executive Branch - are subject to oversight by the Judicial branch which, in turn, is subject to direct popular oversight in the form of trial by jury.
The critical fact is that the Prosecutors were doing everything in their power secure guilty pleas without going in front of a jury, where they were very likely to lose. That's why they were offering a mere 6-8 months in jail on multiple felony confessions vs. 35 years in prison, a $1mm fine and a trial process designed to be financially ruinous. In other words, their "offer" hinged on their ability to place an insurmountable wall between Aaron and a jury. In doing so, they avoided a key provision of the Constitution. The breath-taking abusiveness with which they pursued him only underscores why that provision was made in the first place.
Faced with power this unchecked and malicious, most people simply cave, which is why fewer than 10% of Federal crimes end up before a jury. But apparently, Aaron considered life as a convicted felon to be a fate worse than death. As with so many other things, he simply wasn't like most people. While his suicide brought an unusual amount of attention to the abuse that's going on, the abuse itself is far from unusual. Indeed, it's become par for the course. That's the issue. That's why the response is about people regaining control over a terrifyingly out-of-control system.
Extending this to the specific individuals is essential, because that - and only that - can reflect the moral dimension of the situation. After all, we're not talking about a busted sewer pipe here, or a faulty traffic light leading to an especially bad traffic accident. The DOJ's standard operating procedure represents a calculated erosion of democratic safeguards. That's what makes their conduct a violation of their oaths and crime against the people. So yes, the public's reassertion of its moral authority over its government should absolutely involve severe punishment for those who have so egregiously betrayed the public trust. Given the context, "career ending" is hardly too high a price for the specific individuals to pay. As any prosecutor will tell you, the law is about deterrence as much as it is about punishment.
I agree that in this situation the laws on the books should also be under review. But prosecutors have some discretion as to whom and what and to what extent they'll pursue a case. Regardless of where they might be on a spectrum from noble, high minded civil servant to the most egregious political opportunist, a consequence to the prosecutorial action this case (public opinion, increased scrutiny, career consequence severe or light, etc.) could help establish an incentive for others in the future to act differently. Not legally binding, not compulsory, but just a element of "Let's not make that mistake again."
"This is going to be a long post, so here’s the summary of my conclusion on the first question: I think the charges against Swartz were based on a fair reading of the law. None of the charges involved aggressive readings of the law or any apparent prosecutorial overreach. All of the charges were based on established caselaw. Indeed, once the decision to charge the case had been made, the charges brought here were pretty much what any good federal prosecutor would have charged. This is different from what a lot of people are hearing on the Internets, so I realize this post isn’t going to be popular."
One thing worthy of notice are the "combo" nature of these penalties. For example, he says Computer Fraud is pretty much the same as Wire Fraud. Yet that's a separate count, with more years/fines/numbers, which gives the prosecution a larger Sword of Damocles to hold over someone's head. Why have a separate crime if you are always going to charge both?
Kerr is probably right on the narrow point that if you decided to throw the book at someone you'd hit them with a combo like this (and they later expanded it into a 13-hit combo), and might even be right that this combo is "nothing unusual". We should wait for part two, but the multiplication of an infinite number of federal statutes in combination with prosecutorial discretion looks like the real problem here. We need to trim the sails of these prosecutors in a big way, or at least provide an external check.
For example: they're against jury trials? They want to deny people the right to a jury by depleting their cash? Well, what about a virtual jury? Have a site with all public court documents and filings, like the grand jury indictment. Look at how many years they are pursuing and include bios/faces of the accused, defense, and the prosecutors. Then have people vote up/down as to whether or not they think the punishment fits the crime. Completely non-binding of course, and conceptually separate from the question of innocence/guilt. Include lots of analytics/stats on past convictions and the like. Make money via Amazon affiliate links to books on crime, TV shows, etc. And do SEO so that people found innocent are very clearly marked as such in search result snippets.
Many crimes are salacious so with reasonable graphic design you'd have no problem getting visitors (like the Smoking Gun). The resulting scrutiny of prosecutorial decisions by thousands of people would indeed change the profession, putting a second and more scalable check on them comparable to the press.
Key point with regards to your opening paragraph is:
" But the ordinary practice is to charge all the possible offenses committed in the indictment, even if they overlap, and then let the jury sort them out at trial."
There is at least a passable amount of evidence for each of the charges, so naturally the prosecution will maximise the number of possible charges. This prevents the whole case falling through if of the one of the counts fails.
While in some cases I'm sure that is the thought, but it seems we've possibly reached the point where that way of thinking has made the whole thing a farce.
When people see that a small act like this causes such a number of charges that threatens a large portion of person's life in prison then it becomes an untrustworthy process. It gains the appearance of not being about justice but of something else. It is not good for a justice system to seem that it is more concerned over how a particular crime is committed versus what the crime is in of itself, because it creates a feeling of injustice. For example, why should a murderer be punished more severely because he chose one weapon over another?
So force the prosecution to pick the appropriate charge?
(Or are the prosecutors not versed well enough in the law to know which law/crime is the correct one that was violated?)
What do you think about this: if the prosecutor thinks the big charge might not stick because the evidence is questionable then charge the lesser crime?
Or perhaps (I know many don't like this, especially the government) a separate trial for each charge. Yes, the cost to prosecute goes up (if all charges are going to be charged) and that's why they combine multiple charges into one trial. But psychologically, if the jury see that a person has been charged with 13 crimes then he must be guilty of one or some of them right? If the state had to try each charge separately and the big one didn't stick, then if the state truly thought the next one would stick do that trial.
Our legal/justice system has a flaw and that flaw was to let a few guilty men go free to safe guard and protect innocent men from going to prison.
So its the prosecutors job to decide what evidence is "questionable"? Words fail me. It is the job of the jury to test the evidence. The prosecutor puts forward his/her case with the laws which were broken and evidence that they think might prove they were.
In the UK we have Drunk Driving and Drug Driving as separate offences, so what happens when I crash my car and test positive for weed and booze (we have chemical tests for both - unlike America's strange obsession with an officers judgement), they both carry the same sentence, does the prosecutor just throw out one of them at random as they are similar but overlap?
"But psychologically, if the jury see that a person has been charged" that is a whole different discussion on the suitability of jury as a method of trial, for a case to get in front of a jury it must have some merits which can't be ignored. Also as a sidenote, you don't think people would form an opinion if they had already seen some guy "walk free" from an earlier trial, then ended up sitting on the jury for a similar but not trial, the jury would have their first case facts from the media which is even worse idea.
The jury is not informed of the statue(s) the defendant is being charged with having violated except the most petty one for each category that the state is charging them with. For each applicable "petty" charge the jury finds the defendant guilty of then and only then is the jury then asked and tasked with determining if the defendant violated the next offense. So we still have one trial for numerous charges but the jury is focused on only one at a time and working on them in an escalating order.
I have this feeling that juries tend to start at the top most severe charge and whittle themselves done and if enough charges were made they may psychologically believe the defendant must be guilty of something. Working from the bottom up that pressure and psychology would be absent from the jury.
So the jury is informed the State believes a man is guilty of 1st degree murder and burglary. Judge tasks the jury with determining if the man broke into someones home, if yes, then the man took something of $xxx in value which determines the level of the burglary charge for sentencing purpuses. Next the judges asks about the killing charges, starting with manslaughter. Jury believes that defendant did in fact unlawfully kill another man. Then judge instructs them to determine if defendant premeditated the murder, etc... on up from manslaughter to 3rd degree homicide, 2nd degree homicide, first degree...
I realize that some laws may need to be rewritten to make this progressive application work.
EDIT: What I'm trying to say or do is: Don't provide biasing information ahead of time. Just like when doing software estimates you don't want a manager going to the dev team saying: hey we NEED these features can you give us an estimate, and oh we need it by the end of the month.
It may take longer for the jury to deliberate the entire case in this manner but it would prevent the "well the state thinks this man committed 40 crimes... he's got to be guilty of one so which one(s) should we pick" problem.
How is a separate trial for each charge different from double jeopardy? Part of the point of having the prosecutor bundle together all the possible charges is so there can be a single trial in which the truth comes out. How are you going to "lock in" the possible set of charges early on in such a way to prevent the prosecution from just digging up one more offense at the end of every trial ensuring the defendant never gets to go on with his/her life?
This tragedy is really bringing out the propensity of us Americans to try and find someone to blame for every bad thing that happens so we can prevent bad things from happening again. Unfortunately, there's a certain level of tragedy in this world that is just random and unavoidable. The hang-wringing isn't doing Aaron or his causes any good, it's just creating new victims and wasting a lot of time.
so there can be a single trial in which the truth comes out.
As a point of order, since trials are incredibly stressful and expensive for the accused, society isn't supposed to use them for "the truth to come out" or "to find out what happened."
The trial is where the state -- having decided internally that a person is guilty and must be punished -- goes to prove its case to a jury of the accused's peers, in an orderly courtroom where only pertinent evidence is allowed.
This probably backs up your point even more -- having multiple trials for the same thing is horrible for the accused.
If each charge is considered a different crime then double jeopardy wouldn't apply. Also, in the US at least, the justice system isn't about getting to the truth. It's about assigning blame for an act that is considered against the law. If you are charged with a crime then the prosecutor will prosecute you to the fullest extent of the law and do their best to win by getting a conviction. The prosecutor will not necessarily go out of their way to prove your innocence by attempting to get to the truth. Both sides present their case and the jury, or maybe the judge, make a decision based on what they've been presented, regardless of what the truth might be.
>Or perhaps (I know many don't like this, especially the government) a separate trial for each charge.
This is a very bad idea. If the prosecutor can charge 13 crimes that are all substantially the same thing, they get 13 bites at the apple to try to convict you. I imagine it may also violate double jeopardy when the underlying actions for the crimes charged overlap, but I am not a lawyer.
I've read the piece carefully and the thing that stands out for me most is the bit about the data being 'property'.
It is argued that since JSTOR claims property rights with a tangential link to another case where someone downloaded a chunk of software that was in wide distribution and used that to their defense which was invalidated is reason enough to establish that this data was the property of JSTOR and that any unauthorized download is therefore a breach of the law.
This is interesting because as far as I can see the whole of Aaron's argument revolved around this data being public property all along by virtue of the research being publicly funded and the fact that many authors of these papers can't legally distribute their own work.
If the law can't distinguish between unjust claims of property and a complete lack of public interest on the one side and the good intentions of an individual on the other then you can stick to the 'letter of the law' but that means the law is no longer functional.
I also keep reading about 13 counts, and here there are only 4, is there any reason for the discrepancy or is this commentary based on the pre-September expansion of the charges?
When the laws, applied fairly and legitimately, have the effect of silencing an activist working for the public benefit, one has to start questioning those laws and the motivations behind them.
I'm looking forward to the second part of this (on prosecutorial discretion) - this is a good analysis.
I feel torn about the trial, and I know I'll get flack for this but what Aaron did was illegal, and I'm sure he knew while he was doing it that it was illegal, or at least in a grey area. At the same time, they were way overly aggressive in prosecuting him.
There's something wrong with the system when someone can have their life destroyed and their resources drained by their choice to exercise civil disobedience in protesting something that is morally wrong.
Largely agree although I would insert the word 'probably' before illegal in your second paragraph. It hadn't come to trial yet and we don't have ALL the evidence (especially the defense evidence). I would say that I don't think that the concept of prosecuting him was inherently or clearly wrong.
I'm also very interested to read the second part. I hope it covers the number of counts of each charge brought. This seems to be something that racks up the potential penalty very fast and the individual offences aren't necessarily that distinct from each other
I read through this and got the opposite impression from most people who are responding here.
This is explicitly not an analysis of right versus wrong. This is an analysis of the cudgel that the prosecutors were about to use on Aaron. This is about whether the charges were likely to stick in court.
The analysis says that the cudgel was very strong. Aaron had real cause to fear. And his defense was going to face an uphill battle.
I look forward to part 2, which is explicitly supposed to be an analysis of whether or not the cudgel should have been swung in the first place.
I would be shocked if Part 2 says anything other than "the prosecution's conduct was abusive", given that Swartz's violations were done without commercial intent, caused little if any lasting damage, and were (mostly) not malicious. The defendants in the Gonzalez carding ring got lower sentences than Swartz was threatened with.
I suspect the same, else I wouldn't be looking forward to it.
But even though I expect the conclusion, I'll still be very interested to see how a legal expert makes the case persuasively, and manages to support it with objective examples.
However your comparison to the Gonzalez carding ring is highly unfair. We've been repeatedly warned about the difference between statutory maximums and actual penalties. Jail sentences are like college tuition, the actual amount you pay is not the official sticker price you're given.
How much less? According to http://www.boston.com/metrodesk/2013/01/14/mit-hacking-case-... the plea bargain that Aaron was offered was that he had to plea guilty to all 13 counts, and spend 6 months in jail. That's a lot less than what the defendants in the Gonzalez carding ring got.
But that's a plea deal. If Aaron took it to trial and won some, lost the others, his likely sentence would be something greater than the plea bargain and significantly less than the maximum. The judge would have discretion, and would likely take everything you say into account in determining the penalty. So I'd still hope it would be less than what the defendants in the Gonzalez carding ringt got.
That said, being declared to be a felon is no picnic, as many can attest. Doubly so if, like Aaron, you have friends all over the world and would like to travel to conferences in other countries. And yes, you can sometimes get the felony officially expunged years later, but even that is imperfect. (As I learned sharing beers with Randal Schwartz...)
We know the prosecution felt a 6-7 year outcome was reasonable for the offenses Swartz committed. We know that outcome is worse than that obtained by members of a carding ring. I agree with you: the carders plead out, and the prosecutors were offering a much more lenient sentence to Swartz for pleading out.
The whole thing is a tragic game of chicken. Both players seem to have been dysfunctional in different ways. But the prosecution wielded far more power. If what we know about the case is the whole story, then any reasonable person looking at this case should have been able to see that a 6 year sentence was an unjust outcome. Unlike most HN'ers, I actually have no problem with plea deals and stern prosecutions for people who go to trial; the system has to work that way unless we fund it differently. But the stern prosecutions need to be hemmed in by reason and fairness and logic. Here, it doesn't seem to have been.
It may have been improper in some grand sense, but that's not what Professor Kerr was addressing. He was addressing whether or not the conduct fit the laws in question, as interpreted by the relevant case law.
Alex Stamos doesn't even really try to refute that. Instead he provides context that suggests that it was an injustice to apply those laws to Aaron Swartz. That's a separate question, and one that Kerr apparently intends to address in a follow up post.
The thing that's going to disappoint me is if Kerr strictly analyzes whether the prosecutor choosing to bring the charges was unlawful, which I imagine it probably wasn't -- it's standard operating procedure.
Which is its own problem. But the problem with what prosecutors did is that prosecutors are allowed not to bring the charges and did anyway, notwithstanding the epic disproportionality of the charged penalties to the acts.
In other words, the problem is that the law is defective, and prosecutors could have had a conscience and not abused that fact to break this kid, but they failed at being human, and for that they are culpable. Morally and ethically if not legally.
While we wait though, I wonder Aaron's lawyers ever explained to him that thirty five years was an all but impossible outcome of this case, that seven years was a longshot and some type of non-incarceration a distinct possibility. If his lawyers for some reason didn't make that clear they did him no favors.
Now whether pervasive overcharging to extract pleas is itself ethical is another question ...
My comment based on the cited refutation is exactly related to what Professor Kerr was addressing. While technology law is very undeveloped and much of the penal code can theoretically reach into civil territory -- a small tweak of the facts and the entire matter becomes civil rather than penal. For example if Mr. Swartz had performed a buffer overflow exploit to gain access to JSTOR we'd both agree this was a criminal matter. If we're talking about violation of the private TOS of JSTOR, including circumventing their IP bans by using another public and legally available IP at MIT then we're dealing with a civil matter. These are the kinds of murky waters we have to deal with in our generation, but I think the distinction is pretty clear.
I guess I don't see that as a matter of law. The wire fraud statue talks of false pretenses, regardless of the method of circumvention, reconnecting after being banned looks like false pretenses to me. As for civil versus criminal, the law makes no such bright line distinction - almost every crime with an identifiable victim is also a tort.
Now admittedly I'm not an expert at internet law (though I do have a JD), but Professor Kerr is. Unless your contention is that he doesn't understand the technical details well enough to render an opinion, I don't see how you or the linked article refute his opinion given that you neither of you address it head on (i.e. using the case law).
I respect Professor Kerr's expertise and the case he cited is still relevant to my original assertion. In the cited case an employee specifically used a another employee's credentials to gain unlawful access. But in this case, Mr. Swartz didn't falsely impersonate anyone by simply using another publicly available IP that he was rightfully permitted to obtain.
While I agree that it was entirely inappropriate for the prosecutor to bring criminal charges into a matter that had already been settled in civil court, leaving out the iterations of MIT coming up with ways to prevent Aaron form downloading things and Aaron coming up with ways to get around them really changes the analysis.
To be fair, the person cited in your refutation is an expert hired by Swartz's lawyer to prove Aaron innocent. He may be in possession of better facts, but as they say, "IANAL."
If he'd set this same thing up so that it would download JSTOR over the course of, say, two years, nobody would ever have been the wiser, we'd actually have that data today since it's actually been two years, and he'd still be alive.
But he had to have all the data NOW. I get it, I really do. He lost track of the goal in the excitement of the pursuit.
His sin was being in the middle of the barbell. Act fully legally and under your own name (or, only slightly illegally, and with the intention of being arrested and prosecuted as civil disobedience), or, act entirely covertly, unlinkable to your identity, and just get it accomplished.
Doing things multiple times with risk that someone would set up surveillance is what exposed him. Buying a throwaway laptop for cash, wiping all prints, and hiding it somewhere off-video, waiting a few days, and then starting a slow-leech, uploading the content to some anonymous site, and then acting shocked about how someone copied what he'd done with PACER in this way, would have been a lot safer. $300 laptop is cost of doing business. ATM skimmers crews know this.
I agree. After getting detected and stopped the first couple times, I would have preferred him to be a bit more clever.
And certainly when it gets to the point you're worried about being identified via video surveillance, it is time to take a radically different approach.
Impatience is a better word for what you are saying than greed. And I'm not sure I completely agree with your analysis but I doubt that you would have got the downvotes if you had used the word impatience.
I don't like the use of the word greed here. If you're going to liberate information, you have to be timely. And it would still have been a lot to download even over years, so whilst your proposal reduces the instantaneous bandwidth, the aggregate is still large and so still likely to be noticed. The longer that laptop is in the cupboard...
Ok, fine. Assuming this analysis is correct (and I really lack the legal background to asses this), it does not really change that Aarons accusations was in the mind of people who know what they're talking about utter nonsense.
Hence the logical conclusion is that prosecutors might be fine, but it does not change the fact that the law is completely nonsensical and this is what we should change. How about you guys fire some congresman instead?
You can't really fire a Congressman, only vote them out at the next election. But that comes after you push them to fix it and they falter. First we push them to fix it. Hard.
Unrelated to this, but does anybody else wonder whether the prosecutors would have gone after him when others decided not to if it wasn't for his activism? SOPA being stopped surely annoyed a few powerful people.
What better way to move up in the establishment than by taking out bright activists...
On the legal theory used, I do find a few areas where further information would be useful.
In the case of Wire Fraud, is it JSTOR or MIT's rights that was violated if someone under false pretenses gains access to MIT's facilities and MIT's licensed access for research articles? What is the legal precedence in regard to rented or licensed property; is it the licensee's right that was violated if a crime is made to the property whiles in the care of the licensee or is it the licensers? By continuing giving MIT access after the breach of contract/license agreement, does JSTOR still have a legal claim of Wire fraud?
In the case of Unauthorized Access, Orin Kerrthe refer to a methodology of using the cost of production as a means to determine the value of the information obtained. But are we talking about the cost of production that JSTOR did in producing access to the information, or the production of the information itself done by parties not JSTOR or MIT. If we talk about the production efforts made by JSTOR, would the production cost be limited to the licensing fee's that JSTOR is (or are they?) paying to get exclusive access to the research journals?
By continuing giving MIT access after the breach of contract/license agreement, does JSTOR still have a legal claim of Wire fraud?
You're thinking in terms of a civil suit, where an aggrieved party sues to restore their property/rights/etc. This was a criminal suit where the process is very different: the party suing is always the government in criminal cases, and the only matter at hand is whether the defendant violated the letter of the law. Aggrieved parties don't even have any authority to press or drop charges in criminal cases: that authority rests solely with the government (and the government will often continue cases when the parties involved just want it to go away).
How can spoofing IP/MAC addresses be considered "false pretenses" if these are considered, by nature of how computer networks and management thereof have evolved, to be transient or arbitrary in nature? Spoofing IP/MAC addresses does't even involve "pretenses", because it is a fallacious assumption (usually by the technically illiterate) that IP/MAC addresses correspond, or are even supposed to correspond, to a unique person/computer/entity in the first place. I can't say this is a good analysis by Kerr, given that he ignores extremely basic weaknesses such as this in the charges brought against Swartz.
When done deliberately to circumvent blocks, that has nothing to do with "how computer networks and management thereof have evolved, to be transient or arbitrary in nature".
Nobody who isn't blinded by groupthink or hero worship can deny that Swartz was guilty of a number of crimes. You can debate whether the prosecution was inappropriately heavy-handed given the nature of the crimes, or even whether some or all of those crimes should in fact be crimes, but not that he did commit them.
The blocks weren't necessarily to prevent fraud. Swartz's actions took place in the "open" culture of MIT, and that context matters and should be taken into account before you accuse Swartz of wire fraud.
>Nobody who isn't blinded by groupthink or hero worship can deny that Swartz was guilty of a number of crimes.
> Swartz's actions took place in the "open" culture of MIT, and that context matters and should be taken into account before you accuse Swartz of wire fraud.
Orin Kerr:
> As for unauthorized access, you're assuming that the unauthorized access was to MIT's computer. [...] I don't think thhese objections work if you assume that the unauthorized access was to JSTOR's computer.
It's his intent that matters, who's computer he supposedly was trying to gain property from only matters once you prove he was using false pretenses. IP/MAC spoofing is not intrinsically a fraudulent activity, and in the context of MIT's campus from where he could access JSTOR, there's no reason to assume Swartz thought he wasn't allowed to do a bit of scraping, IP blocks for low traffic's sake notwithstanding.
He didn't do "a bit of scraping", he tried to download the entire archive. On a guest account at a university he had no relationship with. Over a period of months. He was blocked with increasingly wide-reaching measures and reacted with increasingly elaborate circumvention attempts, culminating with a laptop hidden in a closet.
IP/MAC spoofing is not intrinsically a fraudulent activity
No, it's not. But doing it to get around people blocking your computer is. Likewise firing a gun isn't illegal, but attempting to hit someone when you fire a gun is illegal even if you miss. Intent figures into guilt and inncense in most matters of criminal law.
Swartz clearly knew that his IP address and then MAC address were being blocked specifically. You could argue he might have thought that it was just traffic shaping, but that wouldn't explain the MAC block.
EDIT: Clarified by adding 'criminal' in front of law.
Isn't this like asking "How is wearing a fake mustache in public a false pretense?" It isn't. But if I'm doing it with an obvious intent on deceiving someone about my identity, don't you think that context matters? Even if the fake-mustache seems ridiculous?
That's the point, the spoofing of the IP/MAC addresses in themselves prove nothing, and yet Kerr is assessing it as such. The guy with a fake mustache could be a method actor preparing for his next role, and Swartz could have thought "MIT/JSTOR doesn't give a damn if I scrape these articles, but I don't care to ask for official resources to do it just to be told no."
> Swartz could have thought "MIT/JSTOR doesn't give a damn if I scrape these articles, but I don't care to ask for official resources to do it just to be told no."
except that
1. his behavior was clearly against JSTOR's terms of service
2. his computer was blocked MULTIPLE times
3. when he retrieved his computer, he was using his helmet as a mask to avoid being filmed
A TOS can actually be very important in determining whether criminal law was broken or not.
Take a real property, rather than intellectual property, example: my house is private property. If you open my door and walk into my living room, you are trespassing, which is a crime (or you could be breaking and entering depending on your intent). However, if I put a sign up saying "come on in, JohnsonB!" then you have my consent to enter, and you have therefore not violated the letter of the law.
See how consent to use private property is the crux of whether a criminal violation occurred?
A TOS defines the boundaries of how an intellectual property owner consents to your use of that property. Go outside the bounds of that TOS and you are no longer operating with consent, and may indeed be committing a crime.
I'm not saying that this is how it should be. Just that this is how the law is generally interpreted.
> 1.) We're reading TOS now? Is that against the law?
so is your comment a joke reply, or do you have a serious argument? has this ridiculous response indicates that you concede that it is against the terms of service?
> 2.) Irrelevant, could be a simple traffic reduction block.
if he thought it was that, why did he need a mask to retrieve his computer?
Violating a private entity's TOS is not a federal crime. He did not mask anything: MIT has an open network, and apparently unlocked wiring closets (trespassing was not charged). Rotating your IP address on an already open network to circumvent said TOS does not constitute a statutory violation either. You can sue him, that's about it.
If a bouncer kicks you from a bar, then you come back wearing a hoodie over your head and get bounced again, then come back wearing a fake mustache, you can't claim "I never knew they wanted me to leave".
Sure, but the appropriateness or inappropriateness of the particular charges isn't the issue. Anyone who focuses on 'computer crime' or any of Aaron's pet causes is missing the point. The issue is abuse of power, and why the federal government has so much power in the first place.
Criminals should be a tiny group of antisocial people who deserve serious consequences for their serious actions, with law enforcement enforcing a limited set of laws (rape, murder, etc.) universally - going after every criminal that comes to their attention. Fair and understandable.
Back in reality, most of us have probably innocuously violated some federal law already (Silverstein's Three Felonies a Day has been mentioned a bunch - it's a great book.) Even in cases like Swartz's where his violations were arguably intentional rather than accidental, the penalties are completely disproportionate to the action.
In this system, where we're practically all lawbreakers, the government has the discretion to decide exactly whose lives they want to ruin. In the best case they're enforcing the law selectively in line with their best moral judgement - for example, Al Capone. He was generally suspected to be a bad guy, but no one could prove that he committed any sort of real crime - so out of the millions of people that cheat on their taxes every year, the government singled him out to prosecute for tax evasion, and then threw the book at him. Maybe jailing him was a good result, but by selecting one man out of a pool of millions of lawbreakers to go after, the government crossed the line from the rule of law to the rule of man. And think of the result when the government's initial instinct about a person's "good guy" vs. "bad guy" status is wrong!
In this system, the nightmare is the malicious prosecutor, one that's not even attempting to "do what's right" but instead is selecting cases to prosecute for personal motivations - political advancement, personal causes, etc. People who are initially targeted for federal prosecution but somehow 'escape' are frequently recharged for something else - for example, the hapless fuel-cell entrepreneur Krister Evertson. That's what it sounds like happened to Aaron Swartz - thanks to the previous federal investigation into PACER, when he popped up again the federal government was delighted to go after him with both barrels, for reasons having nothing to do with MIT or JSTOR. Even if PACER wasn't an influence, going after Swartz instead of modern Al Capones shows that the arbitrary rule of man we've got in place of a real legal system is working pretty damn poorly.
The way to solve this problem, ultimately, would be to dramatically shrink the size of criminal federal law - ideally by limiting what can be declared criminal in the constitution, since we certainly can't rely on the legislative branch's sense of justice. This will never happen, at least not until this system is torn down and another is constructed (yeah, you scoff, but historically this does happen from time to time). In the meantime, we might as well find legal ways to make being a prosecutor politically unrewarding, and look for incremental reform where we can find it.
The whole "we each innocuously violate several federal laws ever day!" angle is a total red herring. This isn't an instance of someone being charged for actions which nobody thinks should constitute a serious crime.
Go up to your mother and tell her a story that involves someone breaking into restricted closet at MIT, plugging into their network, evading electronic attempts to stop him, and downloading millions of scientific articles that normally are sold for a fee. If your mother is anything like mine, she won't be able to fathom why anyone would do something like this unless he were up to no good.
Swartz did not innocuously do anything. He willfully violated laws designed to proscribe exactly the conduct he was engaged in, conduct that to your average person smacks of criminal activity. Legislators, who think more like my mother than they think like you or me, intended to prohibit Swartz's exact conduct. The prosecutor here was doing exactly what my mother or my Congressman would consider the right course of action in such a situation.
At the end of the day you have to tackle the real problem, which is this: my mother understands the difference between joy riding and grand theft auto. That's within the wheel house of her experience. People interested in "information freedom" or even just proportionate punishment in these situations need to be able to make a case to my mom about why downloading JSTOR articles on MIT's network isn't the same thing as hacking into Bank of America's servers to steal credit card numbers.
The 'several federal laws every day' angle is there to remind each and every one of us that we could be treated like Aaron Swartz, whether we think we're violating a law or not. The federal government prosecutes cases all the time against defendants who had no criminal intent whatsoever.
After telling your mother that story about Swartz, tell her a bunch of other stories about a bunch of other potential federal cases, and then tell her she has the resources to prosecute just a subset of them. Prosecutors are always complaining about not having enough resources, after all. See if she likes the feeling of arbitrarily choosing which of a whole bunch of people get a taste of federal justice, and which go free. Explore the rationale your mother uses to make her decisions. Do political considerations ever come into it? Does settling a grudge? The ability of the defendant to defend himself?
I don't get why you're bringing up 'information freedom' or other red herrings. I'm not particularly interested in that or the rest of Aaron's politics, which were rather far from my own. I'm not even trying to argue that Aaron's actions were harmless (although it's true I don't see any significant harm resulting from them). I'm just stating that the real problem is too many laws on the books, prosecuted selectively by people who don't have to justify why they pursue the cases they choose to pursue and ignore the cases they choose to ignore. Arbitrary power. Rule by man, not by law. Something that threatens every one of us, no matter what we think of Aaron's actions.
The 'several federal laws every day' angle is there to remind each and every one of us that we could be treated like Aaron Swartz, whether we think we're violating a law or not.
You mean "convince", not "remind". You're trying to persuade people here, not remind them of something they already believe. Bear this in mind when trying to refer to what you think "the real problem" is, else you might say things that only sound convincing to people that already share your views.
> Go up to your mother and tell her a story that involves someone breaking into restricted closet at MIT, plugging into their network, evading electronic attempts to stop him, and downloading millions of scientific articles that normally are sold for a fee. If your mother is anything like mine, she won't be able to fathom why anyone would do something like this unless he were up to no good.
You mean you can describe "crimes" in such a way that a technically naive outsider draws the knee-jerk reaction that you want? Stunning! You should be a lawyer or something.
I'm not sure what "lawyering" you think I'm doing here. Maybe I should have used "accessed a restricted closet at MIT" instead of "breaking into." Does that sound less bad to my mother: "accessing a restricted closet at MIT; plugging into their network; evading electronic attempts to stop him; downloading millions of scientific articles that are normally sold for a fee." Better? I'm going for blandly factual here.
Also, what does being "technically naive" have to do with anything? Do you need to be well-versed in the technology to know that Swartz was doing something on MIT's network that MIT did not give him license to do?
I am not arguing that your mother reached the wrong conclusion for that particular phrasing, I am arguing that I am unimpressed with the importance of what your mother thinks in response to any wording at all.
As you know, what you omit is just as important as what you include. Now yes, if I say "JSTOR had no continued beef with Aaron", a lawyer would (correctly) respond that this hardly matters since they are not the ones expected to press charges. Does the fact that this is then legally irrelevant make it irrelevant to a member of the general public who is forming an ethical, rather than legal, opinion? Hardly.
Similarly, the response you will get from, say, your mother to "evading electronic attempts to stop him" is different from the response you will hear from many people who actually know and understand exactly what that entailed. Why do you think that is? Blind loyalty to someone they probably never met?
Then there is the issue of "accessing a restricted closet at MIT"/"breaks into a restricted closet at MIT". Pretty damning, even to me. Sounds like there was certainly a crime happening here. Is it important that we point out that trespassing charges were dropped? I am inclined to think so.
Merits of all of these points aside, the point is that you can be factual and make a layman think whatever you want. What they conclude in response to any particular wording is entirely irrelevant.
There is a reason trials involve a lot more than just having the prosecution explain the situation to their mother.
The "three felonies a day" thing is based on the idea that through stretching of the law, prosecutors can target people for activity that ordinary people would consider harmless. My point is that tech people are falsely assuming that their characterization of Swartz's actions as harmless is universally shared. Without this characterization of harmlessness, the prosecutor's actions look very different.
To address some of your specific points:
> Now yes, if I say "JSTOR had no continued beef with Aaron"
What about MIT?
> Similarly, the response you will get from, say, your mother to "evading electronic attempts to stop him" is different from the response you will hear from many people who actually know and understand exactly what that entailed.
Do you think ordinary people draw an ethical distinction between changing a MAC address and more complex measures? Should they? Does that change the underlying intent?
> Why do you think that is? Blind loyalty to someone they probably never met?
How about cultural differences? My mother thinks that smoking marijuana is seriously wrong and a danger to society. Most people in say Berkeley, CA, do not. Until relatively recently, the former opinion was more prevalent. People who frequent Hacker News do not think it's a big deal to change your MAC address to get onto a network that MIT doesn't want you to be on. That sentiment isn't universal.
> Is it important that we point out that trespassing charges were dropped? I am inclined to think so.
Now whose being the lawyer? Does the fact that the trespassing charges were dropped change the fact that MIT didn't want people going into that closet?
All I'm trying to say is that there are two different things to you could rant about.
1) A prosecutor abusing her discretion to target someone for activity that people think are harmless.
2) Laws that don't recognize that certain kinds of network intrusions are more harmful than others.
Everyone on HN is going after (1), because they are steeped in a cultural context that considers what Swartz did no different than someone cutting across a private lawn. But that sentiment is not universal, and I'd argue that it's not even common. The correct answer here is (2).
You see, omission is fun! Needless to say though, I am looking forward to hear what Abelson concludes concerning that.
> Do you think ordinary people draw an ethical distinction between changing a MAC address and more complex measures?
No, I do not think that ordinary people would. Once again, part of the problem.
> How about cultural differences?
I am not sure comparisons to the war on drugs does anything to alleviate my concern.
> Now whose being the lawyer?
Omitting MIT's position didn't tip you off? That's your trick, not mine.
> Does the fact that the trespassing charges were dropped change the fact that MIT didn't want people going into that closet?
In your one-sided "prosecutor sits down with his mother for some tea and justice" system? Yes, I think it is very relevant.
> 1) A prosecutor abusing her discretion to target someone for activity that people think are harmless.
> The correct answer here is (2).
Here is the deal. I think the prosecutor acted legally. I have no reason to suspect otherwise. More importantly, I think the prosecutor acted typically. I have no reason to suspect that this was the prosecutor lashing out in any sort of 'personal' way.
But more importantly than both of those, I think that the prosecutor acted unethically.
That position may be uncommon, but that coupled with your personal or professional disagreeance does not render it incorrect. The correct answer is (1) and (2).
I think we disagree fundamentally on the duties of prosecutors. In my mind, they are to stay within the bounds of the law and enforce the spirit of the law in a manner consistent with the attitudes of the general public. I don't expect more from them than to implement the "will of the people."
I think the drug war example is apropos. I don't really blame federal prosecutors over the last 30 years (say until the recent legalization efforts). They were acting consistently with the thinking of an entire generation of "just say no" and "zero tolerance" moms and dads.
I don't think prosecutor discretion should be used to second guess the legislature and the public. I do not think it is appropriate for a prosecutor to say "this fits both the latter and the spirit of the law, but I don't think this is as serious of a crime as Congress does, so I will give it less than its full effect."
I do not think 35 years in prison would have been an appropriate punishment for what Swartz did, but he wasn't sentenced to 35 years in prison. Being charged with counts that could carry up to 35 years is totally different than being sentenced to that amount of time. Ultimately, sentencing is the domain of the judge, and in this case the judge never got to make the call. And I don't mean that in a legalistic sense--simply describing the status quo. It's the engineer in my that admires the division of responsibilities inherent in our system.
> It's the engineer in my that admires the division of responsibilities inherent in our system.
I don't know. I suppose I am just naturally suspicious of anything that allows someone to witness an injustice, take part in it, then wash their hands and declare that it wasn't their problem. Something about that just seems wrong to me.
Every link in the chain is a chance for someone to stop injustice. If each link sees all the other links and says "eh, if it's important someone else will put a stop to it" then the system rapidly fails. (E.g., a President should not sign a law he thinks is unconstitutional because it's the SCOTUS's job to decide that.)
If we can't trust federal prosecutors with discretion because of past abuses, that's a specific and reasonable objection. But "other parties thought it was a good idea" dodges a lot. A prosecutor may be the first person available to witness how the law is being misapplied.
Am I supposed to take it as indicative of anything particularly relevant that he thinks he could convince his mother that multiple felonies were committed here?
How do we know he is a lawyer? Because his profile says so? Maybe he's like so many folks who didn't know what to do with themselves but were pampered enough to get another four years of school dayz, got a law degree, then did something else? Sorry, but saying "I'm a lawyer" and debating people doesn't mean I have to respect your views on the law.
I am inclined to believe he is a lawyer. He sure sounds like one. I'll even concede him to be a better source of opinions pertaining the law than others.
Of course that means fuck-all in a discussion about ethics.
"but were pampered enough to get another four years of school dayz, got a law degree,"
What does your class warrior attitude have to do with anything? I'm not sure what country you are from but in the states law school is three years and the majority of students graduate with mountains of student debt. Its hardly what I would call "pampered school dayz[sic]."
"why downloading JSTOR articles on MIT's network isn't the same thing as hacking into Bank of America's servers to steal credit card numbers."
Everyone I know, technical or not, is completely capable of understanding these things are different just based on that sentence alone. I don't know anyone at all that would say the two things were equally serious.
If my mom were still around, I'm 100% positive she would see the difference.
What about 35 or more years prison sentence threat ?
Whether law was breached, is apparently not contested. What is weird is this sentence.
In France, murder gets you usually at most 20 years jail. The sentence seams totally disproportionate to the harm.
Will Mr Orin Kerr also discuss this aspect ?
Another point is the harm done just by the trial. Going for trial is in itself condemning someone to pay a huge amount of money. Even if if that someone is finally proven innocent or the charges excessive and abusive.
Swartz wasn't seriously threatened with 35 years. The prosecution told his attorneys they'd seek ~7 years.
7 years is still ludicrous. 1 year would be ludicrous.
The prosecutors can't fairly escape the blame for the "35 years" publicity, because they themselves bragged about it.
Swartz's own lawyer predicted that there'd be minimal chance of him serving any time even if he'd been convicted. First time offender, no commercial purpose, no malice, no lasting damage.
I think the 35 years is still important because the law allows the prosecutor to charge that, which is thoroughly insane and needs to be fixed, notwithstanding that the problem there is with the law rather than the prosecutor.
Moreover, it allows prosecutors to threaten defendants with that and coerce even the innocent into plea bargains, and coerce those guilty of minor offenses into plea bargains for multi-year prison terms because the alternative is to risk multi-decade prison terms, which is a problem with the conduct of prosecutors when they choose to do that.
The point here is that the prosecution didn't threaten Aaron with 35 years. They were explicit about what they expected to get at trial. When they were trying to scare him, they scared him with a 6-7 year figure.
It is, obviously, an extremely troubling fact that the prosecutors in this particular case decided to try to scare the shit out of the defendant to get him to cop to 13 felonies.
>The point here is that the prosecution didn't threaten Aaron with 35 years.
Are we sure of that? Putting 6-7 years instead of 35 in the indictment or a public statement may be calculated by prosecutors to try to avoid outraging the jury or the public with wildly absurd penalties. That doesn't preclude their ability to use the maximum as leverage in plea negotiations prior to that.
I'm willing to admit that I don't know either, but we can't assume what we don't know one way or the other. My point is that prosecutors should be precluded from being able to do that, and in general should be chastised for doing it even if they are legally allowed to, regardless of what happened in this specific case.
His attorney said so directly, disclosing this weekend that:
* If Swartz plead out, he was being required to plea to all 13 counts.
* If he plead out the prosecution would seek some prison time.
* If he went to court, the prosecution would seek 6-7 years of prison time.
* His own attorney expected that even if he was found guilty, he would receive a suspended sentence.
No credible source suggests that the prosecution seriously entertained or threatened 35 years. Though, again, the prosecution brought this misunderstanding on themselves by bragging to the media about a 35 year sentence.
Technically that is the max sentence tied to the statues and does not depend on the prosecutors. Aaron would have probably gotten a few years in jail, but as a felon life would have never been the same. After jail some are probation for 1-10 years and some are prohibited from using computers for example.
Being a felon also makes travel outside US very hard unless you're a superstar and very hard to get a job or associate with "regular" people and companies.
It's a horrible label: convicted felon, and very few ask why and how you got it.
A felony is any crime for the which the maximum penalty is at least one year in prison. The term used to mean crimes which were potentially capital, but with so few of them these days the definition changed.
I do not agree. Beyond that, I worry that what geeks hope for is a situation where the plain language of the law protects them from "overcharging". That's never going to happen. A zealous prosecutor is going to be able to make your life miserable no matter what. That's the problem we need to address.
Count me among those who think what Swartz did could reasonably have been charged as a felony, but should never have been charged as multiple felonies.
Swartz' attorneys tried to arrange a plea deal and were told that Swartz would need to cop to all thirteen felonies, and would still serve prison time. If all we know now is all there is to the story, that's a gross abuse on the part of Stephen Heymann's office.
I would like to see some element of malice, profit, or real and reasonably expected destructiveness in intrusion as a separate crime, and thus separate sentencing guidelines, similar to degrees of murder or assault. The problem with prosecutorial discretion is sometimes you end up with abuses like this. Having at least an order of magnitude written into the law would go a long way.
I think this was essentially on the line as a felony vs. serious misdemeanor. 1-3 year range, tops, and probably something which should have gotten a suspended sentence for that period, as well.
Regarding the addition of "malice" to some successor of the CFAA: the prosecution could have charged malice; there was clear enough evidence that Swartz's goal was to harm JSTOR. A malice requirement would have made the case harder to win, but the tragedy here isn't how hard this case was to win.
Aaron's attorney, who at this moment is motivated to make the strongest possible case for the hardship Aaron faced, says he believes Swartz (a) could have beaten the charges as they stood and (b) was very unlikely to get more than a suspended sentence even if he hadn't. I think there's broad agreement that Swartz both shouldn't have and was unlikely to serve time as a result of this case.
Which brings me back to Heymann and the conduct of the prosecution, which seems to have been hell-bent on scaring the crap out Swartz.
I mailed his attorney a couple days ago. Part of the tragedy is his attorney would have won this case.
Maybe what is needed is some kind of "legal counselor" to guide defendants in cases like this. Especially if a defendant is irrational or depressed, it's probably an inherently hellish process.
>Maybe what is needed is some kind of "legal counselor" to guide defendants in cases like this.
And then we could put them in an office and call it something like the public defender's office. ;)
Of course, then having them do their jobs would be expensive and no one wants to pay to help "criminals" so it would end up chronically underfunded and become unable to properly serve its clients.
But he'd still be bankrupt even if he beat these charges. That defending yourself and winning could still ruin your life is something else that is terribly wrong here. After all, that means that guilty or not you're going to be punished, and punished hard.
> If all we know now is all there is to the story, that's a gross abuse on the part of Stephen Heymann's office.
And there you were saying we never agree on anything... you may have to re-visit that position.
Now where we dis-agree is the bit where you think that what Swartz did could have been charged as a felony. This side-steps the question of intent and that is normally a big part of any criminal suit.
Towards intent: Swartz published a manifesto urging people to work against the interests of closed academic publishing, then repeatedly evaded attempts to prevent him from downloading bulk JSTOR articles from MIT's network.
Yes, but that is positive intent, not negative intent. What better use of ones time than to make the worlds knowledge more freely available, especially to those not privileged with university access to those articles?
The interests of closed academic publishing are not aligned with those of the general public.
There is such a thing as the 'common good', and I believe it could be successfully argued that harming JSTOR while improving the situation of everybody but JSTOR is an examplary case to show positive intent rather than a malicious one. JSTOR is a non-profit entity that has significant amounts of funds revolving through it and that is technically tasked with making material available, but that in actual fact makes it scarce.
Any attempts to break such a situation and to improve the status quo for the common good is not malicious by definition, it is beneficial by definition.
I see how you favor a much more literal interpretation of the word 'intent' here, but I'm talking about it the way a human would talk about it, and not some kind of legal AI. After all, we're all human first and our intent derives from our humanity and if there is a corporate interest that is harmed over a humanitarian one than I for one don't see too much harm there.
We're not talking about someone attempting to wreck the entertainment industry, we're talking about someone attempting to enable a large number of people to gain access to knowledge. Equating that with malicious intent because some faceless corporation might no longer have as much access to the gravy train is difficult for me to understand.
I think we all get that you don't like JSTOR, but they're a lawful organization, and misuse or abuse of their computing resources with the specific stated attempt of causing them harm is malicious by definition.
In order that we don't go off the rails here: I'm not saying malice matters here. Malice isn't an element of the CFAA. A comment upthread suggests that the CFAA would be improved with a requirement for evidence of malice; I'm simply saying that I don't think that requirement would help much.
>Beyond that, I worry that what geeks hope for is a situation where the plain language of the law protects them from "overcharging". That's never going to happen. A zealous prosecutor is going to be able to make your life miserable no matter what. That's the problem we need to address.
I don't know if overcharging is an unsolvable problem. "Plain language" may not be the right approach, but taking the excessive breadth and poor wording out of existing legislation would go a long way toward removing the number of felony counts a prosecutor can "legitimately" charge a typical bystander with.
Here are a couple of examples: A lot of these laws have threshold amounts of property that have to be in question before someone can be guilty of the crime. (And the amounts haven't been adjusted for inflation in several decades, which we could easily fix too.) But the real trouble there is that we take the amounts and then shovel a whole bunch of questionable nonsense into what can qualify. If I'm reading Prof. Kerr's analysis correctly, if someone breaks into your computer and you hire someone to clean it up, that goes in. You're paying them, so just pay them enough to hit the threshold and you've made a felon of the accused. It seems the value of intangible works goes in, so you bring in the copyright mathematicians who say one copy of one work is worth $150,000, which makes that element of the charge totally redundant in virtually every single case involving a computer, because all computers do is send data to one another, and virtually all data is copyrighted, so you copy one work and it exceeds the threshold and you're guilty of a felony. So let's take the ability to count all of that sort of thing out of that requirement and only include actual cash money or tangible physical products with specific market values, and if you want to have criminal copyright statutes or trade secret misappropriation statutes with appropriate penalties then let them be separate from statutes originally intended to deal with fraud and sabotage.
Then we can get rid of the vagueness. "Unauthorized access" is nonsense words. If someone is guilty of fraud, charge them with fraud. If someone is guilty of copyright infringement, sue them. If someone accesses a computer without authorization and hasn't committed any other offense whatsoever, use technological measures to prevent future access and don't charge them with anything.
Furthermore, we can do something about the maximum penalties. 35 years is insane. It's insane for actual hardened criminals -- bank robbers often go to jail for five years. Murder is on the order of 25 to life. We can make the maximum penalty for any computer crime that isn't also a serious non-computer crime something like 364 days.
Is that the sort of thing you mean to do to check over-zealous prosecutors, or did you have something else in mind? Because I'm open to suggestions. And we can do both.
A problem with this analysis is that Swartz was charged with fraud.
There is no question, at least none I can find anywhere, that Swartz was overcharged, and that requiring prison time from a plea deal or a threat of 6-7 years in prison was unreasonable. The problem we face is that prosectors aren't held accountable for failures to exercise discretion. In Chicago, a local prosecutor pursued a felony charge against someone who recorded two internal affairs officers. She was roundly castigated in the media for doing so, but won reelection handily, because nobody pays any attention to what prosecutors are doing.
It may very well be that the problem here is lack of funding for prosecutors and the courts; that we should give them more money, instead of playing a futile game of whack-a-mole when problems like this happen, so that we can make saner decisions about prosecuting people and not immediately push every case into a tragic game of chicken.
>A problem with this analysis is that Swartz was charged with fraud.
That's what I'm saying. We should change the definition of "computer fraud" and other felonies so that they no longer cover what Swartz is alleged to have done.
Computer fraud should cover breaking into Amazon's order processing system and modifying the database so that they ship you $50,000 worth of jewelry without you paying for it. What Swartz allegedly did is more accurately characterized as something like excessive use or (for entering the network closet) physical trespass, for which the maximum penalty should be a modest fine along the lines of a speeding ticket. There should exist no felony charge available for prosecutors to use whose text can be legitimately said to cover his actions. All felonies should require extremely serious harm, such as personal injury or death, physical damage, or depriving others of extremely high value property explicitly for the purpose of personal financial gain. In all other cases there may be an offense but it should not be a felony, and we can work to have the law changed to reflect that.
I understand that even if we do that, it may be possible for prosecutors to file totally fictitious charges against their targets, but in those cases at least in theory it should be trivial for the defendant's lawyer to win quickly with a motion to dismiss, unless law enforcement is going so far as to fabricate evidence and the like, which is a different class of problem.
>It may very well be that the problem here is lack of funding for prosecutors and the courts; that we should give them more money, instead of playing a futile game of whack-a-mole when problems like this happen, so that we can make saner decisions about prosecuting people and not immediately push every case into a tragic game of chicken.
I agree with this as long as you concede that the only way it will be possible is to drastically reduce the number of accused somehow. If we prosecuted significantly fewer criminals (for example because we repealed many of the unnecessary laws that they are now prosecuted under) then we can easily afford to spend more resources on each case. I don't think the alternative will be possible: Spending significantly more per case without significantly reducing the number of cases would be prohibitively expensive, because there are currently so many people accused of serious crimes.
He's not accused of overusing JSTOR's systems so much as he is accused of intentionally copying their whole database so he could deliver them to file sharing networks. That action would have seriously harmed JSTOR.
I think we could reasonably argue about that; the entire database is freely available to anyone who goes into a major university library, etc., and unless posting the articles resulted in universities ceasing to subscribe to JSTOR (which seems unlikely) then they lose no significant revenue. But this is going off on a tangent.
Even if I concede that JSTOR would be financially harmed, it still shouldn't be a felony. Let them sue him for copyright infringement.
I guess I'm not willing to consider intrusion for the purpose of getting broadly-available content to be in the same category as theft of PII or theft of real secrets intended to remain secret, and none of these in the same category as modifications or destruction.
People like Orin Kerr are part of the problem. Anyone associated with the DoJ can't see that the DoJ is the problem, not the Aaron Swartzes of the world.
"It is difficult to get a man to understand something, when his salary depends upon his not understanding it."
Anyone associated with the DoJ can't see that the DoJ is the problem
Why? He is precise in what his post is doing: simply making an evaluation of whether the charges stack up with the law on the books. He neither promises nor tries to evaluate the legitimacy of the laws. I think that is perfectly fine and in fact I'd love if more qualified folks shared their specific interpretation of the law with minimal bias in either direction.
Here's the thing that we need to be aware of. I'm assuming that many of the readers of HN are programmers or have been programmers. The law is very literal, it is like code. But not everything in life is black and white.
Often I run into programmers who want want to think that all questions should have yes or no answers. Even if they don't, many of us have a deep sense that there is something right about seeing the world in terms of strict categorical statements.
Me? Well, as a programmer, citizen and human being, I'm suspicious of it. Deeply.
No, it's not, and it's the nr 1 mistake armchair lawyers across the internet are making in commenting on this case. Law is much more common sense than many people give it credit for; except it's common sense in a very different way than many people want it to be. (e.g., the bickering elsewhere in this thread on the intricate details of the facts and Orin's analysis of it).
> "He neither promises nor tries to evaluate the legitimacy of the laws."
Which also implies that there is hardly any possibility for his analysis to be 'incorrect' because it is rooted to come out as correct within the provisions of existing laws.
Please realize that Kerr is tackling one issue at a time, in fact, I think he is promising a second post.
This first post is to show how the charges fit the existing law...This is to tackle the first question of, Is what Aaron Swartz did illegal?
This is a wholly different question than whether the prosecution was justified in its aggression, which will be the topic of his second post.
But whether something was illegal or not, yes, generally, we want that question to be based on existing laws. You do not want to go to court, either as a defender or prosecutor, on the grounds that your case will be decided on what's made up during trial.
---
Someone noted that many HN readers are programmers and seem to have problems with seeing the world as too black and white...I'm surprised at how hard it is for professionals whose work is heavily governed by the concept of orthogonality not being able to understand why people like Kerr can dissect this controversy into two separate components. Both components, related as they are, are worth considering and involve different arguments and evidence.
His analysis can still be incorrect. For example, other legal experts may disagree with his interpretation of blah law. This is why I think more, not less, somewhat emotion-free evaluation would be helpful.
If we learn the laws are far overreaching, it requires a different set of actions to attempt to change than if we find that the charges don't align with the law.
his analysis is about whether the charges the prosecutors levied against him were reasonable, based on case law. if he misinterpreted established case law or the charges levied against aaron, his analysis certainly could be incorrect.
I think you don't understand that Orin Kerr is a long-time critic of the Computer Fraud and Abuse Act (or at least, how broadly some of its provisions are interpreted) [1,2]. Also, he's not associated with the DoJ.
But whenever I read him at the Volokh Conspiracy, inevitably he seems to come down on the other side.
Check out some of his GPS / 4th Amendment analyses. For a guy that claims to be a civil libertarian and for a guy that claims to understand tech, he sure comes down awfully frequently on more expansive powers for search and seizure and miss the obvious civil liberties and technology issues.
And no, I can't point to anything specific, but it is my general sense of the guy after reading what he writes at the VC for a couple of years now. And I appreciate what he writes, and it can be very illuminating to me as a non-lawyer, but I have often been struck by how much this critic of CFAA and civil libertarian isn't.
"From 1998 to 2001, he was employed as an Honors Program trial attorney in the Computer Crime and Intellectual Property Section of the United States Department of Justice Criminal Division."
Not the point. You had claimed he wasn't associated with the DoJ.
He got the GW Law gig, in part, because of his prosecutorial duties at DoJ. So his salary does somewhat depend on his not understanding that the problem was the DoJ, not Aaron.
Three years in the belly of the beast is enough to make one a lifer. In reading his work, it's quite obvious that his sympathies are with the power of his former employer, not with the rights of the individual.
It's a hazard of going corporate: Corporate becomes more important than people.
He has what appears to be a correct analysis of the law. I suspect a fair number of dispassionate legal observers would come up with the same analysis. Part 2, where he talks about prosecutorial discretion, is going to be the interesting part.
(I personally thought the CFAA "unauthorized access" could be fought, but that leaves 3/5. Computer Fraud and Wire Fraud are essentially always true if you do anything even slightly mean on a computer, and I'm not sure about the damage to computer systems -- that was self-inflicted by JSTOR, and IMO could have been fought. The MIT side of it was also stupid.)
Part of the issue is that a "correct analysis of the law" is absolutely worthless if part of the problem includes the law. This notion of "if the law permits it, we're good to go" is a disease.
The law is bullshit, with respect to computer crimes and copyright. You still need to accurately know what the current law is in order to change it, though. And unfortunately it will probably require legislative action to change it, which is going to go up against entrenched interests.
Boycott or other commercial actions against anyone who supports the copyright empire would be one way of getting the law changed.
Unfortunately people in the tech community are going to get distracted by other stuff (both stupid legislation like getting involved in gun control, and reasonable stuff like working on cool new technology), so mounting the sustained, multi-year effort to fix this is going to be very difficult.
Honestly I have absolutely no faith in any sort of change coming to the system in-channel. I think we should focus our efforts on developing systems that allow the population to circumvent and would make prosecution prohibitively expensive.
In the future, in any likely reality that I can foresee, the laws are going to remain more or less the same and prosecutors are going to still be using scorched earth tactics. To change the system you need lawyers, but lawyers have a love-affair with the system and knee-jerk in defense of one-another. Ethics and the law are too intertwined for them, any effort to change the system to be more ethical will only continue to be met with cries of "But it's already legal!". I've seen it dozens of times today, and I don't see any light at the end of that tunnel.
If others are going to follow in Aaron's footsteps, they will have to make one particular change: be better at remaining unidentified.
> If others are going to follow in Aaron's footsteps, they will have to make one particular change: be better at remaining unidentified.
Either that or be fully aware of the consequences and do it anyway but in such a way that the genie can never be put back into the bottle. Aaron paid an extremely high price for something that eventually did not succeed.
I think it's unnecessary and unhelpful to bash an argument based merely on authority or ad hominem. Kerr brings up a level headed assessment of case law and it will be interesting to read the rebuttals to it. If people truly want to fix the problem here, then they must understand its domain, not simply say "this is not how I want the world to be"
I think it's fairly clear, based on his long held views of computer fraud laws, that the second part of this will conclude something like: the charges were fair and justified in law, but the proposed punishment (both its severity and scale) were disproportionate, as was the DOJ handling of the case.
The professor says this is a first post is about the law, but it is an assortment of opinions.
II. The Legal Charges Brought Against Swartz
(a) Wire Fraud. The Wire Fraud statute, 18 U.S.C. 1343, prohibits a scheme to gain “property” by false pretenses. This strikes me as a pretty strong charge here. The false pretenses are provided by the false identification and spoofing of Swartz’ IP address and MAC address.
-> This is not false identification, IP or MAC is not tied to Aaron as person. MIT allows guest access and blocking an IP does not mean forbidding to a person access.
Swartz was trying to trick JSTOR into giving him access to their database after they had specifically tried their best to ban him from doing so. And the “property” was the contents of the JSTOR database itself.
-> The property is not the contents of the database since it was not produced by them they were handling it.
Some might argue that the contents of the JSTOR database should not be considered “property.” But I think that’s a hard argument to make in light of United States v. Seidlitz, (...) that OSI invested substantial sums to modify the system to suit its peculiar needs, that OSI enjoyed a multi-million dollar competitive advantage because of WYLBUR,(...)
-> "OSI invested substantial sums to modify the system to suit its peculiar needs, that OSI enjoyed a multi-million dollar competitive advantage because of WYLBUR" ???????? This is the exact opposite of this case where specifically JSTOR cannot alter the content of the producer. It's mission statement says it is also a not for profit organization [1]
That reasoning seems to apply reasonably well to the JSTOR database, too. See also Carpenter v. United States, 484 U.S. 19 (1987) (recognizing a property right for purposes of federal fraud statutes for a business in confidentiality and use of information to appear in a forthcoming publication). It’s possible to argue that Seidlitz is distinguishable, but I think it’s an uphill battle.
-> If it possible to argue, then it is possible for the prosecuter to show discretion
(b) Computer Fraud. The next charges were brought under the Computer Fraud statute, 18 U.S.C. 1030(a)(4), which is a close cousin of the Wire Fraud statute. The two are usually charged together in computer crime cases, and there isn’t really all that much that separates them that we need to dwell on here. So let’s move on to the next crime.
-> ... so if there isn't a wire fraud there is also no computer fraud?
(c) Unauthorized Access. The next charge was unauthorized access to a computer to obtain information valued more than $5,000, in violation of 18 U.S.C. 1030(a)(2)(C) and 18 U.S.C. 1030(c)(2)(B)(iii). I think this charge was a fair one. There are two notable legal issues here. First, was the information valued at more than $5,000? The answer is clearly yes under the leading case of United States v. Batti, (...)methodology when “information obtained by a violation of § 1030(c)(2)(B)(iii) does not have a readily ascertainable market value.” In such cases, the court held, “it is reasonable to use the cost of production as a means to determine the value of the information obtained.” Creating thousands of journals over many years obviously costs more than $5,000, so that element is easily satisfied.
-> He did not steal any journals. The only thing he got was the content that for JSTOR it had a zero cost of production. At least they have not claimed it did since they dropped the case. The Batti case had as an example a video feed that the company had created, and the cost for its production. That does not seem releveant it is legal name dropping.
(...) They blocked his IP address; he changed it. They blocked his MAC address; he spoofed it. They blocked access and he broke into a restricted closet and connected directly to MIT’s network. This is not merely a case of breaching a written policy. Rather, this is a case of circumventing code-based restrictions (...)So I think unauthorized access is established here, too.
-> It is pretty clear that he has not exceed anything not explicitly stated. Was there a page saying "We forbid YOU the PERSON to ever access this server?". I guess there wasn't because it would have already become an internet sensation. He did not circumvent code restrictions since there weren't any for MIT guests. The professor does not see why this is different than stealing someone else's password. An interesting view for a law Professor, so help me god.
(d) Computer Damage. The final charge brought was exceeding authorized access and thereby impairing the availability or integrity of information in ways that cause more than $5,000 or loss or involve more than 10 computers, in violation of 18 U.S.C. 1030(a)(5)(B) and 1030(c)(4)(A)(i)(I) & (VI). This is a plausible charge, although we’d need to know more details about the case to know if it is fully merited. I’ve already covered the elements of authorized access, so we can adopt that analysis above here and move on to the other elements.
-> We should thank the unbiased professor here also.
To get to $5,000 in a 1030(a)(5) case, the easiest and most widely-accepted methodology in the caselaw is to focus on the time spent responding to the unauthorized access. (...)
-> JSTOR seems to have had an automated system that cut access so there is not a proof that anyboy worked on it. After the breach was established JSTOR and MIT should provide data of manhours that were used ouside the daily shift (was there overtime? a destruction of the system?). Merely adding restrictions that they previously had CHOSEN not to have as part of the system is definitely not a response cost. They were repairing a broken business model. Anyway good luck obtaining dollar figures from JSTOR or MIT for the prosecutor.
The impairment of availability or integrity element would probably be satisfied, as well, (...) And more significantly, does access to a particular service from some users really constitute an impairment of availability of the JSTOR computer itself? I’m not sure, but I’m wary of that argument. So the 1030(a)(5) charges are plausible, but we would need to know more facts to know for sure if they were justified.
->"The impairment of availability or integrity element would probably be satisfied" and "The indictment alleges that Swartz’s conduct impaired the working of the JSTOR database but doesn’t give us much detail, so it’s hard to be sure" are two opposing sentences. Either it is probably justified or it is hard to be sure. Ofcourse since the admins have taken down the system themselves they will have to prove that it would go down by itself. But neither JSTOR or MIT have provided such data.
III. Conclusion
My conclusion, at least based on what we know so far, is that the legal charges against Swartz were pretty much legit. Three of them are pretty strong; one is plausible but we would need to know more facts to be sure. Of course, there may have been reasons not to charge Swartz even though he had violated these statutes or to offer him a lenient plea. I’ll take on those questions in my next post. But to the extent we’re focused on just what the law is, I think that what Swartz was alleged to have done fits pretty well with the charges that were brought.
->My Conclusion: This is a biased opinion but not necessarily wrong or willfully biased. It is legally biased. Truth or Mens Rea is irrelevant and things that are hard to be proven by the government alone are described as self explanatory, or obvious interpretation of facts.
Thanks for the adult, reasoned perspective Professor Kerr--it was much-needed. I have been dismayed (but not surprised) by the ghoulish treatment of this poor kid. He's a perfect martyr for movement-minded people. The only movement he should inspire right now is a gut check by anyone who is "mentoring" a minor or a troubled young person. Are you mentoring him/her for his/her benefit, or for your own? I'm sure it's immensely flattering for the leading lights of the various hacker and open source, open information movements to have brilliant youngsters sitting at their feet, capering and reacting to their social manifestos. Well, I hope Aaron's whole-hearted devotion was gratifying to SOMEONE. I personally wish he had never been allowed to wander at an impressionable age among the manifesto crowd, who in fact do incite criminal actions by their followers. They have now shown that they will allow themselves to address a child as though he is an adult, and let the chips fall where they may. But of course we all know who the REAL villains are: those who have and attempt to assert property rights. Just astounding. I think I will have to avert my gaze from this crowd of ghouls--I don't want to see a dead kid's face on tee shirts and posters, but that is where this is going.
I think it's important to note here that Orin Kerr was a DoJ lawyer before he became a law professor[0]. It is likely that he maintains ties and some degree of loyalty to his former employer (many people do). Many bloggers would include a disclaimer on a blog post defending a former employer in a contentious matter, but Kerr did not.
It's also worth noting that he literally wrote the book on the law of computer crime [1], and served as a pro bono (free) defense attorney _against_ the DOJ in the Lori Drew MySpace case [2], and he was extensively critical of the government in that case [3], and he has testified before Congress to say that the Computer Fraud and Abuse Act is too broad.[4]
He worked for the DOJ from 1998-2001. If he harbors sympathies for the government, they're pretty well hidden at this point.
Orin doesn't harbor sympathies for anyone.
He has his own viewpoints, some of which match up with the government, and some of which don't. I took classes on computer crime from him when I was in law school :)
At this point, he seems more interested in the development of 4th amendment jurisprudence as it relates to technology that he does the CFAA in particular.
At least on that front, he's been wildly wrong about future development of the 4th amendment so far. He was a strong opposer of the "mosaic theory" of the 4th amendment, and thought there was a 0% chance the supreme court would go for it, and he was completely and utterly wrong.
So take what he says with a grain of salt. He's a brilliant commentator on the CFAA, but a lot of what he says seems to be based on an idea that courts don't really change law to suit justice or policy given sets of facts, which at least, IMHO, is completely false.
I'm pretty stunned this is being downvoted. Mr. Kerr may well be an excellent professor, and a good man, but in my world, it's important to disclose your ties and connections when you write about a divisive matter. Even if it was a decade ago, Mr. Kerr worked for the entity that is under fire for its actions against Aaron Swartz. I'm not suggesting that he is some type of agent working behind the scenes for the DOJ, but the fact that he did work for the organization, and likely still maintains some ties with it, is very relevant to this piece and should be taken into account by readers. In science, at least, these types of ties must be disclosed when you write an article for most peer-reviewed journals. Is it not the same in law? This is an honest question. If it's not, I'm surprised.
Downvoters, do you not believe that bloggers should disclose their ties to an employer or former employer when writing about that employer?
We can take a page from: "Dear Congress, It's No Longer OK To Not Know How The Internet Works"
And follow with: "Dear Attorneys, It's No Longer OK To Not Know All Hacking Isn't Terrorism"