> 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]."
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.