MIT and Aaron Swartz

by Henry on January 13, 2013

Larry Lessig, in his justifiably angry post on Aaron Swartz’s death says the following:

Early on, and to its great credit, JSTOR figured “appropriate” out: They declined to pursue their own action against Aaron, and they asked the government to drop its. MIT, to its great shame, was not as clear, and so the prosecutor had the excuse he needed to continue his war against the “criminal” who we who loved him knew as Aaron.

I have heard the same thing from other people – those involved in trying to help Aaron believe that if MIT had said it didn’t believe that Aaron’s acts were felonies, it would have been extremely difficult for the Department of Justice to proceed in pressing its preposterous charges. Had MIT done the right thing, Aaron Swartz would almost certainly be alive today.

There was certainly internal debate within MIT. David Glenn, in his last piece for the Chronicle reported:

“What Aaron Swartz did was a clear violation of the rules and protocols of the library and the community,” says Christopher Capozzola, an associate professor of history and acting associate dean of the school of humanities, arts, and social sciences. “But the penalties in this case, and the sources of those penalties, are really remarkable. These penalties really go against MIT’s culture of breaking down barriers.”

There was also pressure from prominent alumni:

“MIT has a duty to get down on its knees and beg that this prosecution be dropped,” says Richard M. Stallman, a Boston-based programmer and prominent “free culture” advocate who attended graduate school at MIT in the 1970s.

Academic administrators read the Chronicle with some attention, especially when it comes to their own institution. They can’t possibly have been unaware of the potential fallout – not the risk of suicide, but the risk both of sending someone to prison for the crime of mass-downloading journal articles, and of condoning legal theories which criminalize a wide variety of activities in breach of terms of service, activities that have been committed by nearly every quasi-sophisticated network user at some point.

Capozzola’s description of the issues seems to me to have been an entirely reasonable position. I can understand how administrators in the university would reasonably have been royally pissed at what Aaron did, if the facts were more or less as they have been presented. What I cannot understand is why they didn’t publicly adopt a position along these lines – saying, quite clearly, that Aaron’s actions were unacceptable abuses of the network, but also stating, equally clearly, that they did not merit felony charges, on stretched and dubious interpretations of the law, that potentially had decades of jail time attached to them. I particularly cannot understand why MIT - an institution which as Cappozola says, has a tradition of openness and of tolerating (and indeed celebrating) creative rule-breaking didn’t step up to the plate. Again – it didn’t have to condone what Aaron did. It merely had to make it clear that these actions did not constitute major felonies, and that prosecuting Aaron as a felon was wildly inappropriate.

I know that MIT faculty, MIT students, and MIT alumni read this blog. I respectfully suggest that they start contacting the people that they know at the university looking for some answers from the administration. Why did MIT not take action on this when it could have done some good? Is MIT’s official position that breaches of terms of service do indeed constitute felonies with decades of associated prison time? Or that they sometimes do, and sometimes don’t? Or some version of quod non scripsi, non scripsi? I don’t think that MIT can slide through this without explaining its inaction, since that inaction had quite clear, and quite predictable results (not leading predictably to Aaron’s suicide, but leading, extremely predictably to the Kafkaesque situation which precipitated his suicide).

Update: two commenters point to this email apparently circulated internally within MIT, in which the university’s president promises an internal investigation of how MIT made its choices, and whether better choices might have been available. So consider this post revised to a request that people hold the administration’s feet to the fire, and circulate the report externally as well as internally.

{ 238 comments }

1

Matt 01.13.13 at 9:30 pm

For what it’s worth, it’s important to keep in mind that the decision to prosecute in cases like this (and in all cases) is, in the end, the prosecutor’s, not the “victim’s” (*). If the “victim” doesn’t want to help the prosecutor, that can make the prosecutor’s job much more difficult, and may well be important in figuring out the balance of equities in deciding how to use prosecutorial resources, but is not necessarily decisive- nor should we want it to be. Crimes are, after all, “public wrongs”, no private ones, and that makes it generally inappropriate for victims to have the power to decide the actions of prosecutors. That doesn’t mean, of course, that MIT should not have done more here, even though it almost certainly was the victim of a crime (* though perhaps not the one really at issue here- I’m not sure how the particular laws really at issue are conceptualized, which is one of the reasons why they are bad as-written, I think.) But there seems to be some suggestion in some of the debate that if MIT had said it wasn’t interested in going forward, that the prosecutor would, or would have have to, drop the case. That’s not so, nor generally should it be, I think.
(Henry isn’t making this mistake, at least not clearly, though I do think the point needs to be made explicitly.)

2

ljk 01.13.13 at 9:40 pm

if MIT had said it wasn’t interested in going forward, that the prosecutor would, or would have have to, drop the case

Would they have dropped it with 100% guarantee? No, Carmen M. Ortiz and Steve Heymann have a history of spurious and aggressive prosecutions. But would they have been more likely to drop the case without MIT’s cooperation? Yes.

MIT had an obligation to speak out on his behalf and it failed in that obligation.

3

Denzil 01.13.13 at 9:41 pm

MIT President L. Rafael Reif has just sent an e-mail about this. Posting the relevant snippet

“I have asked Professor Hal Abelson to lead a thorough analysis of MIT’s involvement from the time that we first perceived unusual activity on our network in fall 2010 up to the present. I have asked that this analysis describe the options MIT had and the decisions MIT made, in order to understand and to learn from the actions MIT took. I will share the report with the MIT community when I receive it.”

http://pastebin.com/eFa8GdGp

4

garnett 01.13.13 at 9:41 pm

5

Turbulence 01.13.13 at 9:46 pm

I’ve heard that some people in the MIT community have received the email here.

6

Henry 01.13.13 at 9:47 pm

That’s right, but it would have obviously been hard for the prosecution to have made a case if MIT had not passively acquiesced, given that its theory of the crime depended on MIT’s TOS. And the decision of JSTOR to disassociate itself was obviously a factor in the reformulation of charges when DOJ took their second bite at the cherry.

7

bianca steele 01.13.13 at 9:48 pm

Aaron’s case is a terrible tragedy.

MIT may however be more constrained than they appear. A few years ago, a female undergraduate wore an art project, which consisted of a box with blinking lights and exposed wires, into the Boston airport, and answered officials in what they felt was an odd manner. From her point of view this was simply expected eccentric behavior, but the TSA did not see it that way. I don’t remember what the outcome was, but saying “our kids are expected to be eccentric even if that includes bringing what looks like a bomb into the airport” wasn’t seen by some others as a terrific outcome.

8

Turbulence 01.13.13 at 9:52 pm

Henry, can you clarify what MIT should have done differently and when they should have done it?

As I understand it, when they reached out to their federal contacts, they had no idea who they were dealing with. All they knew was that someone had infiltrated their network, caused serious problems, and was effectively evading all their efforts to identify or stop them. I’m not sure I can fault any network administrator for calling in the feds at the point. And once the feds were involved, I’m not sure what MIT could have done to control the USA’s office.

9

Henry 01.13.13 at 9:59 pm

Turbulence as the post suggested, they could have made a public statement as JSTOR did.

Denzil – thanks.

10

Turbulence 01.13.13 at 10:22 pm

Henry, how would such a statement have made any difference? Swartz did not have authorization for his access — and the feds would have had plenty of evidence on that point. The fact that MIT was willing to overlook that doesn’t change the fact that unauthorized access to a federally protected computer system is still a crime under the Computer Fraud and Abuse Act.

11

James Conran 01.13.13 at 10:50 pm

12

Actio 01.13.13 at 10:52 pm

I think one more factor – in addition to MIT, JSTOR and the prosecutors – deserves highlighting in a discussion about distributing responsibilities: the intellectual property system and its advocates and institutions more generally. The absurd claims about “millions of dollars” in damages referenced by Lessig can only be understood, and would likely only be advanced in this specific case at all, given the context of decades of fantastical claims of putative economic megaharms from widespread intellectual property law disobedience by people. All those reports put out by BSA and similar organizations and frequently uncritically echoed by governments. Propaganda that absurdly treat each disobedient copy as a missed out full retail price sale.

13

LFC 01.13.13 at 11:11 pm

Turbulence,
As Matt indicates @1, there is something called prosecutorial discretion. The decision whether to prosecute, and on what charges, is the prosecutor’s in all cases. Everything in this area is discretionary, which means the exercise of judgment, which means just because an alleged crime fits or seems to fit within a certain statute doesn’t mean it has to be prosecuted in any particular way or even with reference to that statute.

14

Alex 01.13.13 at 11:15 pm

All they knew was that someone had infiltrated their network, caused serious problems, and was effectively evading all their efforts to identify or stop them

AS’s great exploit was plugging an old laptop into an ethernet jack and leaving it. The problem was that it was downloading too fast. they knew about it, ergo they knew which IP or MAC was pulling the traffic, ergo they could just have ratelimited it, or traced the cabling from the ethernet switch it was plugged into, and unplugged it.

shorter: they could just have solved their problem without declaring jihad.

15

Turbulence 01.13.13 at 11:25 pm

Alex@13: ergo they knew which IP or MAC was pulling the traffic, ergo they could just have ratelimited it, or traced the cabling from the ethernet switch it was plugged into, and unplugged it.

They did precisely that. They blocked the MAC address so he spoofed the MAC address in order to evade their controls.

LFC@12, thanks, but I’m aware of prosecutorial discretion. I understand that the USA was not compelled to take the case. I just don’t see why an MIT statement would have swayed them. They were surely aware that MIT was not moving forward with a civil case.

16

Peter Donis 01.13.13 at 11:27 pm

AS’s great exploit was plugging an old laptop into an ethernet jack and leaving it.

As I understand the facts, it was more complicated than that. He first logged on to MIT’s WiFi and downloaded JSTOR data that way; then when the MAC address he was using got rate-limited, he spoofed his MAC address; then, finally, he plugged his laptop into a jack in an unused closet. So the people at MIT had evidence that it wasn’t just an isolated incident; it was someone with both determination and technical skill. They didn’t know who it was at that point, or why they were doing what they were doing, but they knew it was someone sophisticated.

17

Timothy Scriven 01.13.13 at 11:27 pm

I don’t want to sound all tribalist and whatnot, but whatever happened to Solidarity and protecting one’s own. If universities were truly a community of scholars, and in an ideal world they would be, they’d close ranks around their fellows and try to ensure that these things are dealt with “in house” as far as is possible, recognizing that it’s very dangerous to put limits on openness, but that if it has to be done it should be done by the scholars themselves.

18

Andrew Montin 01.13.13 at 11:27 pm

I’m so sick to death of legal pedants telling us all about how the law works as if that is justification for a corrupt system. What Swartz was drawing attention to was the injustice of laws whose sole purpose is to permit profiteering off the back of tax-payer funded research. MIT is entirely complicit in this corrupt regime and as such has every interest in seeing activists like Swartz persecuted. Academics who persist in playing along are also complicit and ought to be ashamed of themselves. They have the power to change the system by simply threatening to withdraw from it. If everyone refused to publish in closed-access journals the system would collapse overnight.

19

Turbulence 01.13.13 at 11:46 pm

Timothy Scriven@17: Swartz wasn’t part of the MIT community. He was affiliated with Harvard and as a result had some guest privileges at MIT, privileges which he abused.

Andrew Monton@18:What Swartz was drawing attention to was the injustice of laws whose sole purpose is to permit profiteering off the back of tax-payer funded research.

This was pretty bad activism then. Compared to the rest of academic publishing, JSTOR are saints. They don’t own the IP so they can’t just give it away. They’re a non-profit and they spend a ton of money scanning and digitizing old journals in order to make them more accessible. They offered their collection for free to Africa years before Swartz pulled his stunt. And while most of the material in the archive might be partially publicly funded, the public didn’t pay to digitize it.

Do you think digitizing dead tree journals is free? If not, how do you think JSTOR should recoup those costs? Taking on AAAI or Elsevier would have been a lot more meaningful. But it probably would have required more in the way of technical skill and time.

20

Steve Nordquist 01.13.13 at 11:53 pm

Turbulence, it’s arbitrary, and favoring the laws that make outcomes we can use is infamously (okay, it’s a required part of a Federal Best Practices law) a metric in use by Cities and DAs. But what is a blue law, what’s a Federally Deprecated use case, what’s whaling on things lacking clearances within 2km of a Federal Office (because someone with a clearance might be there; now playing) and what’s applicable and proportionate?

If he’d done it as a bank member instead of university alum, then?

Bitblking while cycling, crime of the century. Matt, I’m looking at you.

If nobody has authorization for access (which disposition is quite often given ex post facto; and curious indemnification from double jeopardy given the analytics (which of course could be expected to give disposition)) with enough room to look around, it is public well-poisoning. You don’t fix it in post, you don’t say it only affected people who tried to fall in the well. You do get an audience when refactoring to let JSTOR do some bookings and librarianship. Plenty else, too.

…..

Oh, and the White House Petition v. Ortiz could use a little more background text and linkage; you know, you do law school while raising 2 sisters or so, run the Abscam high-touch sting, remarry, help keep the seaboard honest, there ought to be a record of what’s being curated and whether you’re goading people into chatty flights of fancy and railroading them into jail before they can refill the candy jar at the reference desk. Give a girl a Wednesday to craft a condolence.

21

Timothy Scriven 01.14.13 at 12:07 am

“Timothy Scriven@17: Swartz wasn’t part of the MIT community. He was affiliated with Harvard and as a result had some guest privileges at MIT, privileges which he abused. “- Turbulence

Despite jokes to the contrary, scholars don’t usually give a toss about such things and, if it were up to them, would be happy to close ranks to protect anyone working in academia in the name of intellectual openness. The fact that this did not happen in this case just goes to show how far the modern university is from being controlled by its scholars and frontline staff.

22

Timothy Scriven 01.14.13 at 12:09 am

Do you really think the computer scientists at MIT would have given a toss whether he had an institutional affiliation at Harvard or MIT?

23

Henry 01.14.13 at 12:41 am

Turbulence – IANAL but here is my personal, idiosyncratic, and very possibly wrong read of what was at stake. The key issue is that DOJ’s interpretation of the Act as applying to violations of TOS is highly controversial – read the Kerr piece linked to in the main post. There is, as of a few months ago, a circuit split on the question. This raises the stakes for DOJ of having a clean case. If MIT had publicly disassociated themselves from DOJ’s interpretation, this would have made it substantially tougher for the DOJ to win in court – the evidence would look a lot weaker, in particular because this was MIT’s own rules which DOJ was basing its claim on. I don’t think that a judge would have to give deference to MIT about the implications of its own network policies, but I suspect that many, and perhaps most justices would. This helps explain why the DOJ reformulated its complaints to minimize the JSTOR aspects after JSTOR made it clear that it was not going to play ball. An MIT statement would have made this case a high stakes gamble, and indeed a gamble which would have big implications for DOJ if it lost on appeal. A 2-1 circuit split would have been likely to lead other circuits to take on the majority interpretation, and perhaps had implications for any eventual Supreme Court jurisprudence. Again, IANAL, and I have never been privy to the discussions of Swartz’s legal team, even in the vaguest of ways. But I suspect that something like that explains why people are so angry and upset that MIT did not enter into this as it should have.

24

Corey Robin 01.14.13 at 12:46 am

A minor side note: Chris Capozzola, the acting associate dean who’s quoted in the OP (from the Chronicle piece by David Glenn), wrote a terrific book on WWI, which dealt in part — and at length — with the repression and coercion that was visited upon dissenters by government and non-government institutions alike. Have no idea what his role was in all this, beyond the quote cited by Henry.

25

Matt 01.14.13 at 12:47 am

Matt, I’m looking at you.

Why?

26

ben w 01.14.13 at 12:47 am

So the people at MIT had evidence that it wasn’t just an isolated incident; it was someone with both determination and technical skill.

The technical skill to spoof a MAC address and the determination to move a laptop?

27

Peter Donis 01.14.13 at 1:13 am

*The technical skill to spoof a MAC address and the determination to move a laptop?*

Spoofing a MAC address is easy for a techie, sure, but how easy is it for an average computer user?

Also, he didn’t just move a laptop, he moved it to a particular place where he could plug into an Ethernet port and assign his own IP address (i.e., not a normal wired router using DHCP).

28

Henry 01.14.13 at 1:25 am

Spoofing a MAC address is easy for a techie, sure, but how easy is it for an average computer user?

Took me about 5 minutes to figure out from the Internet when I needed to, a few years ago. And trust me – I am not a techie – ‘intelligent consumer on a good day’ is as far as you could reasonably go.

On the ‘moving a laptop’ bit, I had a conversation about the Swartz case with a small group of people working for a well known start-up last year, which quickly developed into competing stories about who had which computers plugged into hidden and obscure corners of their alma maters scraping for this and that semi-abandoned research project. These were probably self-selected people, and not representative of the average – but at the least, this would appear neither to be unique or the target of any very extraordinary opprobrium. Again – I can understand why, on the facts as they have been presented, administrators would have been very reasonably pissed off – but I really think that the most you can say is that it was towards the further end of a spectrum where quite a lot of stuff happens that most people at an institution like MIT wouldn’t dream of punishing.

29

Barry 01.14.13 at 1:41 am

“Give a girl a Wednesday to craft a condolence.”

Condolence? WTF good is a condolence from that maggot piece of sh*t?

30

Barry 01.14.13 at 1:43 am

“…help keep the seaboard honest, …”

I must have missed the Wall St higher ups she’s jailed. Since we just saw a multi-trillion dollar fraud trash the global economy, she should be on her second thousand by now.

31

myipistracked 01.14.13 at 1:50 am

People will get ittybitty about a large number of facts to confuse the issue of this robin hood character getting hunted down until he killed himself. So what he got depressed -science proves that the greatest minds suffer from extreme mood swings.

The issue here is about freedom – the us federal authorities aren’t keen on too many freedoms anymore, and since they are at the beck and call of assorted business lobbies -protecting our freedom has become corrupted by the need to protect business interests, including the expanding business of information control.

MIT is no longer just an educational institution it is a business. It ran with the authorities because it suited its business interests to do so – what it would have received we will never know. This man actually made a choice – one of the few left to him in a loaded legal system – not to perform in an elaborate circus.

When someone believes in something, and dies for it, it warrants respect. Lot of clever people posting a lot of sophisticated arguments should strip it down a little, and consider the idea that his decision was calculated to draw attention to the bullying occuring because of his belief in access to information. Thats not just the decision of someone mentally ill – as is being put forward – unless you also believe every burning monk is just sick.

MIT’s internal investigation or hand wringing will occur because this man did not back down, political excuses are being worked on by businesses. Greater access to information, at no cost, is the big issue this guy died for – maybe people at MIT should show their respect by doing something about it, instead of spending money excusing themselves for his persecution.

32

Peter Donis 01.14.13 at 2:07 am

Took me about 5 minutes to figure out from the Internet when I needed to, a few years ago.

What made you aware of the possibility? I suspect many, if not most, non-techie computer users aren’t even aware that MAC addresses can be spoofed; and a large subset of these probably don’t even know what a MAC address is.

I really think that the most you can say is that it was towards the further end of a spectrum where quite a lot of stuff happens that most people at an institution like MIT wouldn’t dream of punishing.

It certainly is well within the spectrum of stuff I saw going on at MIT when I was there. I didn’t mean to imply that I think MIT could not have done anything to prevent this tragedy from happening; I think you’re right that a public statement would have made a difference. I was only looking at the initial decision by MIT to call in the feds, when all they had was the pattern of network intrusions.

In fact I was a bit surprised that MIT had not made any public statement, and I think it’s quite possible that the critical decisions were made at a low level and that the administration wasn’t fully aware of the role MIT had played in this sequence of events. (If the investigation that Prof. Abelson conducts finds that to be the case, I suspect there will be changes in how things are handled when network intrusions are detected.)

33

Andrae 01.14.13 at 2:21 am

I have read in multiple places suggestions that the JSTOR spider somehow showed “technical skill and determination”. As a professional computer engineer I call bullshit!

You don’t spoof a MAC address. You change it, and that can be as simple as changing a setting in a preferences dialog box. The idea that “plugging it into a wall socket” takes any significant ‘determination’ or ‘technical skill’ is laughable. The idea that once it was connected to a wall socket, the network administrators couldn’t have physically located it within hours *if it had in fact been affecting the network*, is even more ludicrous.

We are talking about Aaron Swartz, an engineer with technical skill and determination beyond most. If he had intended this as a nefarious covert attack, it would not have happened the way it did.

34

Paul Foord 01.14.13 at 2:36 am

Why am I not surprised that http://www.mit.edu is down at present.

35

Doctor Memory 01.14.13 at 2:43 am

It’s worth noting that the rot in the Boston DA’s office goes significantly deeper than Ortiz and Heymann. Recall for instance the despicable Martha Coakley, who rather than admit that the Boston Police Department had engaged in a ridiculous overreaction during the mooninite invasion decided to throw felony charges at Berdovsky and Stevens. (While Scott Brown’s subsequent victory in MA’s senatorial race was in all other respects a tragedy, it did at last have the salutary effect of putting a stake through the heart of Coakley’s ambitions for higher office.)

36

Peter Donis 01.14.13 at 2:45 am

We are talking about Aaron Swartz, an engineer with technical skill and determination beyond most. If he had intended this as a nefarious covert attack, it would not have happened the way it did.

I agree; I didn’t intend to imply that Swartz couldn’t have done it much more covertly if he had wanted to.

37

Peter Donis 01.14.13 at 2:47 am

The idea that once it was connected to a wall socket, the network administrators couldn’t have physically located it within hours *if it had in fact been affecting the network*, is even more ludicrous.

As I understand it, the socket it was plugged into was not intended for use by client computers, which is why it took time for MIT’s network people to figure out where the traffic was coming from.

38

ben w 01.14.13 at 2:49 am

Spoofing a MAC address is easy for a techie, sure, but how easy is it for an average computer user?

Even aside from Henry supra, we are talking about MIT, aren’t we?

39

Doctor Memory 01.14.13 at 3:05 am

And of course at the risk of being That Guy, it would be really nice if the thousands of thousands of young black men who are currently languishing in the arms of the american criminal justice system for crimes every bit as nonsensical and arbitrary as Aaron’s got this much attention every now and again.

40

Mitchell Rowe 01.14.13 at 3:16 am

“And of course at the risk of being That Guy, it would be really nice if the thousands of thousands of young black men who are currently languishing in the arms of the american criminal justice system for crimes every bit as nonsensical and arbitrary as Aaron’s got this much attention every now and again.”

Seriously man? Seriously? That topic gets discussed here pretty frequently and most of the commentors and (all?) the contributors are on the side of goodness and light. Don’t be a jerk.

41

Jeremy 01.14.13 at 3:20 am

@Doctor Memory, Carmen Ortiz is the US Attorney, appointed by Barack Obama, and an employee of the US Department of Justice. Martha Coakley is the Massachusetts Attorney General, elected by the people of Massachusetts. Two totally separate offices. I’m not sure to what extent the Beredovsky and Stevens prosecution was the responsibility of Coakley or Suffolk County DA Dan Conley. A bigger travesty of justice Coakley was involved with was in her time as Middlesex County DA, when she continued the persecution of the Amirault family long after any sane person realized that the whole ritual child sexual abuse thing in the eighties was mass hysteria and coerced testimony.

42

Turbulence 01.14.13 at 3:24 am

I’m super confused about the MAC spoofing point. Of course it is not terribly difficult for a technically literate person to do. So what? Did anyone claim that it was?

The point of MAC spoofing is that it is something you do to evade an access restriction: it indicates that your behavior is not authorized. If your behavior was authorized by the network owners, you wouldn’t need to spoof your MAC address.

I mean, when Swartz covered his face with a bicycle helmet to keep the cameras from recording his picture, that was also not a terribly difficult thing to do. I bet that Henry can cover his face with a bicycle helmet to obscure it from a camera without even needing to read how on the internet. But that doesn’t change the fact that you do that because you know you’re breaking rules or committing a crime.

43

Substance McGravitas 01.14.13 at 3:38 am

Turbulence, unauthorized access is not terrorism.

44

Turbulence 01.14.13 at 3:41 am

Substance McGravitas, indeed it is not. But unauthorized access is a violation of the Computer Fraud and Abuse Act.

45

Doctor Memory 01.14.13 at 3:55 am

Mitchell@39: sorry, I should have added another clause or two; you’re quite right that CT and its commentariat are on the side of the angels here. The technically-minded blogosphere in general, not so much.

46

js. 01.14.13 at 3:59 am

Turbulence @42:

The point isn’t how easy or difficult it is. The point, I take it, is that the if the standards applied in the Swartz case—standards which you seem to be endorsing—were applied consistently, across the board, MIT might suddenly feel like a lonely, desolate place. And not just MIT either.

47

js. 01.14.13 at 4:00 am

My last comment is in fact directed to Turbulence at *41*.

48

Omega Centauri 01.14.13 at 4:03 am

Turbulence, this is an example of the criminal justice system being used vindictively. Clearly Aaron felt compelled to try to help people by liberating data, and made an error of judgment. Treating him as some sort of terrible public enemy who should be subject to multidecade imprisonment is disproportionate as well as heartless.

49

Substance McGravitas 01.14.13 at 4:06 am

One day at university I blocked traffic for what I thought was a pretty good cause. I was arrested, put into a holding area and charged with something or other, and that was that (I paid my fine, others got off, and this lack of foresight cost me immeasurable bottles of Rhinelander).

Had someone sought to put me in prison for 30 years I probably would have killed myself too. I don’t believe there are minimum sentences in the Computer Fraud and Abuse Act: someone could have been more sensible.

50

peggy 01.14.13 at 4:11 am

An Activist Memorial
By Sunday morning, hundreds of academics had begun tweeting links to their copyright-protected research as a protest in Swartz’s honor, using the hastag #pdftribute.
We’ve now had over 3.5 million impressions and over 500 tweets per hour.

51

bob mcmanus 01.14.13 at 5:06 am

49:That is what I have been hoping for. I teared up. Thank you.

I googled “mortgage suicides” a little earlier today.

Kazakhstan:”When the bailiffs arrived to evict Kenjegul Alinkulova from her home, she doused herself in petrol and set herself alight.”

“Spanish suicides spark Law risking bank losses”

“In May, a 61-year-old Greek pensioner hung himself from a tree in a public park after succumbing to the pressure of crushing debt.”

Someday maybe we will start valuing peoples lives more than property rights.

52

Turbulence 01.14.13 at 5:13 am

js@45: The point is that the if the standards applied in the Swartz case were applied consistently, across the board, MIT might suddenly feel like a lonely, desolate place.

I don’t think that’s correct and I haven’t seen any evidence to support it. Believe it or not, lots of people at MIT know about the CFAA and act accordingly. There’s a bunch of things that I’ve thought about doing over the years and either not done or modified significantly so as to avoid falling afoul of the CFAA.

Omega Centauri@47: Clearly Aaron felt compelled to try to help people by liberating data, and made an error of judgment.

Was that why he did it? Because if he really cared about liberating data, JSTOR and MIT were probably the worst targets and worst places to work. Hacking AAAI or Elsevier from Harvard would have been much better. But let’s be frank: that would have taken time that Aaron probably didn’t have given his difficulty sustaining interest in projects; or it would have required more in the way of technical skills than he had.

Treating him as some sort of terrible public enemy who should be subject to multidecade imprisonment is disproportionate as well as heartless.

Look, when the USA charges you with N years, that doesn’t mean you go to prison for N years. Especially if you are well off, white, and have powerful friends. Having Larry Lessig speak to the judge at your sentencing hearing has to mean something.

Moreover, Lessig suggests that Schwartz was offered a deal but he rejected it because it would have meant being labelled as a felon. I’m sorry, but I’m having trouble respecting anyone who would take their family through hell and blow all their money on a desperate attempt to stop the US government from morally disapproving of them. And yes, I get that being a felon is actually a huge problem for people who don’t have Aaron’s wealth and connections and abilities. But for him? There isn’t a startup in the valley that would have looked askence at him; hell it would have probably bolstered his reputation.

53

Keir 01.14.13 at 5:32 am

You know, using excessive prison terms as a tool in plea bargaining is a disgusting practice, as 51 inadvertently makes clear.

54

Henry 01.14.13 at 5:39 am

Turbulence – you’re getting to the point of being actively offensive.

(1) Sneering at Aaron for not “really caring” about open data is pretty fucking remarkable, given that he devoted most of his life to it.

(2) He wasn’t well off, let alone possessed of “wealth.” He’d made a good amount of money in the Reddit sale – enough to live for a number of years as long as he was frugal, did a lot of couch surfing etc. But then the costs of the defense burned through pretty well everything he had. Have you any idea how much it costs to pay white collar defense lawyers in a case like this?

(3) The USA made it clear that he would have to plead guilty on all charges and do time. They made it clear again last Wednesday that they weren’t prepared to bargain. Read the Wall Street Journal. Suggesting that this was all because he was too dainty and refined to deal with the social stigma of being convicted? My inclination, frankly, is to tell you where you can stuff that suggestion, and to indicate that you might consider crawling up there after it and staying there.

I understand that this conversation all may feel like you aren’t talking to real people, just disconnected snatches of text on the Internet. But quite a lot of people here knew Aaron, and some of them loved him. I’d suggest that you grow up and think a bit before you start flinging slurs about someone who has just died under tragic circumstances to their friends. Alternatively, I understand that the Fred Phelps brigade is planning to picket the funeral on Tuesday – you may want to ask if they’re looking for volunteers.

55

Meredith 01.14.13 at 6:28 am

The more I learn about all this, the more I think Draco. Draco v. Solon. Where’s our Solon?

56

js. 01.14.13 at 7:11 am

Just to note that that the MIT president’s note which Henry mentions in his update is semi-prominently linked on MIT’s home page (as of now, top under “News” on the right of the page). I, pseudonymous commenter on a blog, would also like to see the report circulated externally as well as internally.

57

Trader Joe 01.14.13 at 1:18 pm

Clearly a tragedy/

I don’t have a dog in this fight, I’m not a tech guy and not a lawyer – just a common guy looking at the facts in a reasonably detacted way – I had never heard of this guy before his death made the news. It seems pretty clear law enforcers/prosecuters were looking to make an example and nothing about the case strikes me as worthy of 13 felony counts + jail time. Drug dealers frequently plea to less.

There was likely some illegality in Shwartz’s actions whether maliciously intended or not, or at least it would seem so from certain perspectives. But as the JSTOR part of the case illustrates, nothing that couldn’t be cleaned up with some appology and possibly a little restitution at the most.

I’m not smart enough about tech matters to know where to draw the line between “hacking” and “making information available to the masses.” IP is called IP for a reason and I suppose if it was my hard work “given away for free” I’d be a little ticked – that said, the contemplated punishments were too harsh for the crime. Its more than just a matter of degrees though…its a system that surely in this case was misguided and it can only be hoped the source of the prosecutorial zeal will eventually come to light. Perhaps exposing this last flaw can be one more feather for Mr. Shwartz’s cap.

I share the view of many on the board that the world is a little worse for what has occurred, my sympathies to those who knew and respected him.

58

Cian 01.14.13 at 1:32 pm

Turbulence,
I have done many stupid and reckless things over the years. Things that I bitterly regret, things that I’m embarrassed by and things where I fully deserved (and received) punishment. Most of us, if we’re honest, have. I looked at Aaron’s situation and thought with sufficient bad luck that could be me. Could be most of us if we’re honest about our proclivities to fuck up.

In a few years, maybe sooner, you will probably look at your actions here the same way. I get that you’re jealous of Aaron. But he committed suicide a couple of days ago. Step back, get some perspective think about what you’re doing. Don’t be that guy.

59

Cian 01.14.13 at 3:15 pm

@20 This would be the same Oritz responsible for the Tarek Mehanna case? I think she deserves what is (hopefully) coming. At this stage in the game all DA’s are guilty until proven innocent. I mean those are the rules they play by, right?

And yes I’m aware that Aaron is getting coverage because he was famous. I’m angry about all the unknown people forced into prison on other bullshit charges everyday. It doesn’t make what happened to Aaron right.

60

Matt 01.14.13 at 4:15 pm

People wanting a clear and straight-forward account of the law at issue here might look at Orin Kerr’s account here:

http://www.volokh.com/2013/01/14/aaron-swartz-charges/

Kerr, for what it’s worth, is an expert in this area, and has worked in both prosecutions and defenses, and has been an important critic of over-broad application of “unauthorized access” laws. This post deals only with the nature and plausibility of the charges, though he will write about the approach of the prosecutors later, he says.

61

Henry 01.14.13 at 4:26 pm

Kerr is more favorable to the prosecutorial side than I’d have expected. But again, IANAL.

62

Henry 01.14.13 at 4:58 pm

Turbulence – since you can’t take a hint, take a hike. Any further comments from you will be deleted on sight.

63

Sebastian H 01.14.13 at 5:49 pm

Kerr is good at saying what the law IS, and only obliquely comments on what it ought to be. I have zero problem believing that if they wanted to, prosecutors could apply the laws and precedent in the way they were talking about to smack Aaron. The laws are too broad and prosecutorial vendettas are too powerful.

That is why I have always been concerned by the lack of prosecutorial activity re the banking crisis. There are at least some very clear instances of fraud (ie the notary signing rooms–you can’t accidentally hire a roomful of people to notarize signatures they couldn’t possibly have witnessed) but no obvious attempt to prosecute. Given the fact that prosecutors can essentially ruin someone’s life over nothing, how is it that they can’t bother with obviously important and clear crimes?

64

Shelley 01.14.13 at 6:15 pm

MIT did what MIT did because, as James Herndon taught us, every institution has two, and only two, goals:

(1) to do the opposite of what it’s supposed to do

and

(2) to perpetuate itself and its own power.

65

Barry 01.14.13 at 6:32 pm

Sebastian H: “That is why I have always been concerned by the lack of prosecutorial activity re the banking crisis. There are at least some very clear instances of fraud (ie the notary signing rooms–you can’t accidentally hire a roomful of people to notarize signatures they couldn’t possibly have witnessed) but no obvious attempt to prosecute. Given the fact that prosecutors can essentially ruin someone’s life over nothing, how is it that they can’t bother with obviously important and clear crimes?”

That’s what for me makes it 100% clear that these prosecutors are scum. It is *not* the case that ‘the law isthe law'; we’ve seen the DoJ deliberately let Wall St walk after a fraud wave in at least several hundred billion dollars of idrect damages.

66

Substance McGravitas 01.14.13 at 6:32 pm

I’m angry about all the unknown people forced into prison on other bullshit charges everyday.

Perhaps I should check JSTOR for research on that.

67

Henry 01.14.13 at 6:36 pm

Sebastian H – I completely agree with this, but also think that it is useful to know what the law, as it is interpreted, says. The issue of prosecutorial discretion is obviously an important one, and one that goes much further. Julian Sanchez noted on Twitter today that if most people actually exercised their right to a trial, the system would break down.

68

Harold 01.14.13 at 7:36 pm

People in NY have been arrested on spurious charges and routinely held for three days awaiting arraignment, lost their jobs, and had their children put into foster care – only to have charges dismissed. This is Mayor Bloomberg’s “Stop and Frisk”.

The judicial system has given up even the pretense of having jury trials, or even speedy charges.

69

SC 01.14.13 at 8:06 pm

I thought I followed Swartz’s case reasonably closely but I did not realize until reading Marcy Wheeler today that the Secret Service was running the Swartz investigation. That MIT in-house investigation might get interesting. Hmmm, on the face of it, it seems like a third party ought to be doing the “in-house” investigation.

“A lot of people are justifiably furious with US Attorney Carmen Ortiz and AUSA Heymann’s conduct on this case.

But the involvement of the Secret Service just as it evolved from a local breaking and entry case into the excessive charges ultimately charged makes it clear that this was a nationally directed effort to take down Swartz.”

http://preview.tinyurl.com/a88bt89

(It’s also worth reading Wheeler’s later post about the investigation into Swartz’s Amazon accounts.)

70

Andrew F. 01.14.13 at 11:56 pm

A very tragic set of events… the world has lost a bright and dedicated young man.

I’m a little skeptical that a statement by MIT would have made a difference in the DOJ’s decision to prosecute. While federal prosecutors may consider, as a factor, public opinion on the question of prosecution, I don’t believe that it may be a decisive factor. Further, public opinion on the case seemed at best divided; MIT’s voice is one among many.

Once a decision was made to prosecute, the DOJ would indict on the most serious charges for which the facts would support a conviction.

In the context of plea bargaining, the government would continue to weight heavily the probability of a conviction at trial, and the penalties allowed by the charges. According to the Washington Post, the government had offered Aaron 6 months in jail in return for a guilty plea on all charges. Given the strength of the evidence likely collected, the probability of a conviction at trial, and the potential penalties of a conviction on the charges, an offer of 6 months jail would be already deeply reflective of the government’s favorable weighing of Aaron’s lack of criminal history and certain other aspects of the alleged behavior.

I don’t think a misdemeanor deal was in the cards here, regardless of MIT’s stance either on the law itself or on Aaron’s case in particular.

71

ezra abrams 01.15.13 at 12:00 am

in my ignorance, i had never heard of Mr Swartz till his death, somene who is clearly smarter and more productive then i am.
and i really don’t wish him or his family bad things.

However, the anger about jstor seems a bit disengenuous: you smoke one joint, not a biggie; you get caught with 30 kilos of weed in baggies, they go after you.

There is a diff between downloading an article and stealing (isn’t that the technical legal term for taking stuff without paying ?) a huge number of articles.

For someone as smart as Mr Swartz to think that he could, illegally, take a huge amount of stuff, and not suffer consequences, seems odd – alnost willfuly naif

As Errol Flynn, a down and outer before a star says in in his autobio, don’t ever, ever, ever spit at a NYC cop.
Its the same rule – you challenge em, they will hit you with everything they have, and only silly hicks think they will play fair.

I would also add, as I’m sure others have, that the US atty office in boston made him a pretty sweet deal, so all this stress is self inflicted

I would also add that “information wants to be free” is a candidate for stupidest slogan of the century; aside from the reification and anthropomorhization, information, via the second law [thermodymanics] is $; the idea that it should be free violates TANSTAAFL
(eg, information is equivalent to a decrease in entropy; this requires inputs of energy, which is equivalent to inputs of money….)

72

purple 01.15.13 at 12:23 am

MIT, a university knee deep in the most foul of weapons and state surveillance research that is backed by the U.S. government.

A few Chomsky’s can’t change the odious nature of the place, and the generally trite philosophical musing of their proteges and leadership.

MIT exists because of the military industrial complex, and that’s it.

73

purple 01.15.13 at 12:27 am

It seems pretty clear law enforcers/prosecuters were looking to make an example and nothing about the case strikes me as worthy of 13 felony counts + jail time. Drug dealers frequently plea to less.

Actually, serial killers frequently pleas to less.

But no matter, it is ‘stealing’, from someone, somehow – nevermind that the research was probably publicly funded and the people writing the article were receiving next to zero royalties.

74

SC 01.15.13 at 1:30 am

…skeptical that a statement by MIT would have made a difference…

It would have made a difference to Swartz.

And it was the right thing to do in this case because the suggested punishment was ridiculous and the case was being handled, in part, in MIT’s name. MIT could have said “What Swartz did was wrong but . . . what the DOJ is doing is worse.” or something along those lines.

75

Matt 01.15.13 at 2:28 am

There is a diff between downloading an article and stealing (isn’t that the technical legal term for taking stuff without paying ?) a huge number of articles.

I would also add that “information wants to be free” is a candidate for stupidest slogan of the century; aside from the reification and anthropomorhization, information, via the second law [thermodymanics] is $; the idea that it should be free violates TANSTAAFL
(eg, information is equivalent to a decrease in entropy; this requires inputs of energy, which is equivalent to inputs of money….)

No, he was never charged with “theft” or “stealing” and there was no way he ever could be for the JSTOR incident. Copyright infringement is legally distinct from theft and he wasn’t even charged with that, because none of the JSTOR downloads were redistributed.

Why does JSTOR or anyone else have to control access to copies of historical articles whose production costs were paid off decades ago? Because it still costs money to distribute articles. Why can’t we let the Internet Archive, individual libraries, or even enthusiastic individuals scan back issues of journals and share them without payment? Because we have to control access to copies. This is the circle of defense you’ll find around the paid journal archive model. (The shorter realer answer is “because we can extract some mighty fine rents out of academic libraries.”)

The marginal cost to electronically distribute a copy of a JSTOR article is approximately two hundred thousand times less than what JSTOR actually charges. The people who originally wrote, reviewed, and edited these articles don’t see any of that money. The gap between costs and prices is getting wider as computer hardware and communications get cheaper. This is absurd.

76

Salient 01.15.13 at 2:39 am

Andrew F., a statement from the sole victim of the alleged crime is not “public opinion.”

(I say “sole” because MIT and JSTOR were the two victims, and JSTOR already settled up with Aaron privately and asked prosecutors to drop all related charges.)

There are circumstances in which a prosecutor should continue to press charges against an alleged perpetrator, despite the victim’s request that the case be dropped — e.g. domestic abuse, sometimes — but usually not when the victim is an institution and the alleged crime is nonviolent…

77

Salient 01.15.13 at 2:47 am

When institutions’ terms of service policies carry the force of law for violations, institutions effectively have state-sanctioned legislative and executive authority. (They write the rules, and they investigate and identify violations of those rules.)

This country is already violent enough without granting Facebook the right to have me arrested for putting up a whole bunch of fake profiles so that my local D&D club looks amazingly well-populated…

78

LFC 01.15.13 at 3:06 am

E Abrams:
I would also add that “information wants to be free” is a candidate for stupidest slogan of the century; aside from the reification and anthropomorhization [of] information…

Well, I think it’s supposed to be taken metaphorically. No one thinks — or at least I don’t think — that information is a conscious entity that can “want” anything. But if the phrase is taken non-literally, the anthropomorphization and reification disappear.

79

salacious 01.15.13 at 4:16 am

61,63: FWIW, Kerr clearly states that his post only addresses the narrow question of whether Swartz’s conduct violated the CFAA; he said he plans to follow up with further postings on prosecutorial discretion, etc.

80

Andrew F. 01.15.13 at 10:58 am

Salient, for better or worse, whether a victim desires a federal prosecution has little bearing on whether there is a substantial federal interest in the prosecution. You may find this section of the US Attorneys’ Manual to be interesting: http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/27mcrm.htm#9-27.230. All of Chapter 9-27.000 would be useful here, in fact.

SC @74, 6 months jail in exchange for a guilty plea seems reasonable on the part of the prosecution given the laws in effect. And based on the Washington Post article, it sounds like they were willing to go for less than 6 months as well. Essentially the result would have been an acknowledgement that the charges are technically accurate, but that little to no punishment by prison time is merited in this case.

That’s not to say that I think the law as written is particularly good – its wording supports an application of it to circumstances that clearly should not be considered criminal matters – but, in fairness, I also do not think the charges here required an overly broad interpretation of the law.

Swartz would have emerged from any time served in jail with a felony record, and that would certainly have a continuing impact on his life. It’s not to be taken lightly. But, given everything he had already accomplished, given the clear passion of his interests and the intelligence of his mind, it seems safe to say that he should have had every expectation of a fulfilling and long life, marked here and there with triumphs both personal and political.

81

Cian 01.15.13 at 1:04 pm

The prosecution had no evidence that Aaron Swartz was going to commit copyright infractions. Whether he was going to…who knows. But I kind of doubt that JSTOR would have been so forgiving if they really thought he was going to release the whole archive. The issues with M.I.T. could have been sorted out quite easily. A large fine (to cover costs, disruption and the general hassle of his thoughtlessness), and perhaps a promise to never use their network again.

Somewhere else there was a comment from an ex MIT administrator (who was pretty unsympathetic about his actions, though he was appalled by the prosecution) who said that the only noticable disruption to M.I.T. would have been the JSTOR access. According to him, he impact on the network would have been unnoticeable, which sounds about right. Given that M.I.T. operate a fairly open network, and are famous for not being hugely bothered by this kind of thing…

It’s worth remembering that. And its fairly clearly the prosecution were malicious and rather vicious. The way that they distorted comments of Aaron’s to try and paint him as a felon probably contributed to his state of mind.

82

Cian 01.15.13 at 1:26 pm

http://bostonglobe.com/metro/2013/01/15/humanity-deficit/bj8oThPDwzgxBSHQt3tyKI/story.html

Swartz and his lawyers were not looking for a free pass. They had offered to accept a deferred prosecution or probation, so that if Swartz pulled a stunt like that again, he would end up in prison.

Marty Weinberg, who took the case over from Good, said he nearly negotiated a plea bargain in which Swartz would not serve any time. He said JSTOR signed off on it, but MIT would not.

“There were subsets of the MIT community who were profoundly in support of Aaron,” Weinberg said. That support did not override institutional interests.

83

Timothy Scriven 01.15.13 at 1:33 pm

Frankly I don’t give a fuck what the law is. The fact is that A) Plenty of people have avoided charges that carry prison time for far more serious white collar crimes simply because they have more money and more powerful buddies

Most seriously though is B) Aaron Swartz didn’t do anything morally wrong(1), therefore initiating a sequence of actions that had the potential to put him in jail (aka “Rapeland”) is necessarily and massively illegitimate. You can say that it’s not the job of a prosecutor to follow their conscience but to follow the law. Fine. But prosecutors don’t have magic dust from the legitimacy fairy scattered all over them, and “I was only following the law” is no better excuse than “I was only following orders”. If the upshot of that is that there is no morally legitimate way to be a prosecutor in our society, well I’ve long known that anyway.

The prosecutors here have blood on their hands, and should be treated as such by the community.

(1) And even if you think he did do something wrong, you must surely admit he didn’t do anything wrong enough to merit sending him to a nightmarish environment unto which are sent those which supposedly society needs to be protected from.

84

Barry 01.15.13 at 3:07 pm

Andrew, on the day that the Wall St scum who destroyed this country go to prison, youl’ll have a point. On the day that the torturers go to prison, you’ll have a point.

But not today.

85

Cian 01.15.13 at 3:12 pm

Most seriously though is B) Aaron Swartz didn’t do anything morally wrong(1)

That’s not entirely true. He caused disruption to MIT’s network and knew that he shouldn’t have been doing what he was doing. A misdemeanour sure, but still wrong. A fine, community service – these would have been reasonable responses. Or even a (mild) suspended sentence. It’s the grotesque lack of proportionality that’s the key thing.

Plenty of people have avoided charges that carry prison time for far more serious white collar crimes simply because they have more money and more powerful buddies

This is true and worth repeating, but I don’t think the conclusion to draw from this is that nobody should be punished. Rather the point is that the law should be sane and reasonable (plea bargaining, and the law in question, are not that) and that nobody should be above it.

he didn’t do anything wrong enough to merit sending him to a nightmarish environment unto which are sent those which supposedly society needs to be protected from.

Well I don’t personally think anybody should be sent there. An incarceration system where it’s taken for granted (and in some sense approved of) that inmates will be raped, or worse. Nobody should be sent there, no matter what they’ve done.

86

MPAVictoria 01.15.13 at 3:16 pm

“And even if you think he did do something wrong, you must surely admit he didn’t do anything wrong enough to merit sending him to a nightmarish environment unto”

Thinkprogress had a great list of crimes that had lower sentences than the one Aaron committed. They include manslaughter. That is fucked up.

87

Alex 01.15.13 at 3:45 pm

He first logged on to MIT’s WiFi and downloaded JSTOR data that way; then when the MAC address he was using got rate-limited, he spoofed his MAC address

This is irrelevant, but for the sake of the record, years ago, I had a wireless LAN box that offered you the possibility of “cloning”, i.e. spoofing, the one on your PC in case your ISP was doing something cretinous like trying to stop you having more than one computer in your house so they could charge you more money. it did this *in the first-run out of the box configuration process*.

manufacturer: linksys (i.e. Cisco). I demand war on San Jose!

88

Mao Cheng Ji 01.15.13 at 4:43 pm

If I was planning a stunt like that, I would’ve expected a certain amount of troubles. Although, of course, not 30 years in prison.

If I was convicted and sentenced to 30 years, I would’ve certainly considered suicide as a solution. Although, of course, I would’ve definitely waited till I’m actually convicted and sentenced.

So, what exactly had happened there, why did he kill himself?

89

Sebastian H 01.15.13 at 5:13 pm

Considering that it is a fact that prosecutors have used plea bargaining leverage to get false confessions to put people away for charges as serious as murder or rape, it isn’t surprising that this leverage might cause suicide. From a public perspective that outcome might even lead to the incorrect assumption that if the person committed suicide he must have been guilty.

90

Mao Cheng Ji 01.15.13 at 5:34 pm

“Considering that it is a fact that prosecutors have used plea bargaining leverage to get false confessions to put people away for charges as serious as murder or rape, it isn’t surprising that this leverage might cause suicide. “

Sure, that could happen, easily. To a poor person without any connections.
OTOH, people like Robert Blake and OJ Simpson got away with murder. So, prosecutors are not all-powerful.

Aaron Swartz, I reckon, has to be somewhere in the middle, but probably closer (by the level of fame and resources) to the latter category.

91

Barry 01.15.13 at 5:47 pm

“Aaron Swartz, I reckon, has to be somewhere in the middle, but probably closer (by the level of fame and resources) to the latter category.”

IIRC, OJ had *three* nationally-prominent defense attorneys working for him, at least one of whom had insider knowledge of the corruption of the LAPD (rather useful for dismantling the LAPD’s claims).

Who were Schwartz’ famed trio?

92

Salient 01.15.13 at 5:51 pm

Salient, for better or worse, whether a victim desires a federal prosecution has little bearing on whether there is a substantial federal interest in the prosecution

Gee, that might be why I proposed a change in how a prosecutor evaluates whether or not there’s substantial federal interest.

–actually, maybe I should be less snippy. This is a maddening thing you share with Watson Ladd and other people who get called trolls a lot: responding to a statement about what ought to be, with a broad, vague, heavily simplified statement about how things are.

For the record, I don’t think your characterization of how things are is accurate. But that’s also completely beside the point to me, because I think there’s something severely, unacceptably, morally wrong with what you describe, so even if you were completely right it doesn’t change or affect anything I said. If anything, it would just make me all the more ardent in calling for change. (Which is essentially the snippy thing I usually say in response, e.g. the crossed-out sentence above.)

This “Salient, let me condescend to tell you how things are” rhetorical move seems like a way of defending how things are, without actually offering any defense of the current system, or any criticism of the proposed change. (Not to mention it reads like a ‘facepalm’ corrective statement.) This is a big reason why people call you a troll. Conflating ‘ought’ statements and ‘is’ statements is a classic troll move. Watson shrugged this off when I mentioned it, but you often have more substance to share than him (e.g. mentioning relevant primary sources), so maybe you should consider changing the style — rather than saying something about how things are, maybe say something about how you feel things ought to be, and then feel free to describe your understanding of how things are in a later paragraph–then it doesn’t seem like a deflection, and it doesn’t seem to carry a patronizing accusation that the other person appaaaaarently needs to be told some very basic things about the real world as it is.

93

Mao Cheng Ji 01.15.13 at 6:02 pm

“Who were Schwartz’ famed trio?”

Are you saying he had to rely on a court-appointed lawyer? I got the impression that he wasn’t exactly one of the poor and downtrodden, but if he was, then the story certainly makes more sense.

94

SC 01.15.13 at 6:17 pm

Does anyone else remember Memogate? In short, in 2002 and 2003, two members of Bill Frist staff hacked (I’m not sure what else you call using someone else’s passwords to access their files) the files/correspondence of the Senate Dem judiciary committee and used those files against them, both by passing them on to the media and using them to plan floor strategy. As far as I know, Manuel Miranda and Jason Lundell, the Senate staffers identified by the Memogate report (http://cryptome.org/judiciary-sys.htm) written by Senate Sergeant-at-Arms William Pickle (with the help of the Secret Service) were not charged with any crime.

95

Andrew F. 01.15.13 at 11:12 pm

Salient, sorry for the misunderstanding. I read your comment in light of the discussion about whether prosecutors abused their discretion in this case. When you wrote “prosecutors should” I interpreted that to be a statement about existing standards for ethical conduct, i.e. what standards federal prosecutors currently ought to follow with respect to their decisions. So my response was to cite one source for those standards.

I disagree with the position that MIT’s view on prosecution should play much role in the government’s decision though. Since the function of the prosecutor is to enforce the law as decided by the legislature and interpreted by both the courts and, to some extent, the executive, the view of the institution harmed by a given criminal act shouldn’t be given decisive weight. It’s not about whether the institution believes that the law in question is good, or how serious an offense the institution believes a violation of that law should be, or how favorably inclined the institution is towards the person charged with the crime; the institution doesn’t represent the people.

96

Timothy Scriven 01.16.13 at 2:10 am

Cian. Just to clarify I absolutely agree that prison should.be abolished for all and have done work on prison abolition.

97

Tim Wilkinson 01.16.13 at 1:09 pm

ezra abrams @71 (leaving aside the stuff about ‘he was asking for it’ (he wasn’t), with the vague implication that there is a limited stock of blame/responsibility which must all go to AS; the claim that 6 months in federal(?) prison and a felony conviction constitutes ‘a pretty sweet deal'; etc.)

I would also add that “information wants to be free” is a candidate for stupidest slogan of the century you must have quite a long longlist then.

I think the idea was originally supposed to be that the cost of reproducing info is ever dwindling. (Another idea is that it ‘wants’ to be free in the sense that its raison d’être is to be propagated.)

aside from the reification and anthropomorhization so do you object to such metaphors in the context of Darwinian theory, too, or only for ‘memes’?

information, via the second law [thermodymanics] is $; the idea that it should be free violates TANSTAAFL if so, then so do fruit trees, quite literally. Us Terrans are not in a closed system; the sun’s energy (and the kinetic energy of the earth and moon) is, for us, a great big free lunch. Even looking at the universe as a whole, there’s the big bang, source of all, er, ‘free energy’.

information is equivalent to a decrease in entropy except that informational ‘entropy’ isn’t actually the same as thermal entropy (and definitely isn’t clearly identical, as your proof would require it to be). The former is relative to human-like concerns, language, etc., and can’t simply be read off from the physics, contra, e.g. fallacious Intelligent Design arguments. A disassembled watch has no more thermal entropy than a whole one; ink splashes no more than writing, a lump of clay no less when it is made into a statuette and no more when its squashed back into a random-looking lump.

this requires inputs of energy, which is equivalent to inputs of money… only in the nightmare scenario in which all energy is charged for by someone, including sunlight.

Getting closer to concrete realities, asking for information to be ‘free’ does not entail that some entity must be lumbered with an unwonted obligation to disseminate it for free: only that those who are willing to put in the effort not be prevented, by legal, financial or practical obstacles, from doing so.

What is meant by ‘information’ here is something like ‘human knowledge encoded in language’. The function of that is indeed to be disseminated; and the cost of doing so tends to fall, since no particular physical substrate is essential to the process, energy is plentiful, and the process is run by living organisms which consitute little temporary pockets of local entropy-resistance – in both the informational and physical senses.

(I think the broad thrust of this is about right by the standard of quick blog comments – I look forward to learning from anyone who’s able to correct any misconceptions.)

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David J. Littleboy 01.16.13 at 3:04 pm

Wrt TW @97:

Distributing information is free, but creating it costs time and effort. Some of us would, lacking reasonable remuneration for our time, rather play guitar or go bowling. (Well, I don’t really create: I translate. But it’s somewhat similar.)

Now, I do think that the cost to consumers isn’t falling fast enough. Buying a Kindle book from Amazon ought to save me a lot more vs. the dead tree version than it does. But it can’t fall to zero, since the author, editors, and even the publisher deserve something. And academic papers, since they often have some fairly serious research behind them, involve quite a bit of money to create. Some of that money, being taxpayer money, is paid in advance, and such papers being free would make sense. But that requires agreements to do that in advance. And people are working on that. As we move away from the dead tree model of publishing, there are going to be glitches. It’s good we have people like Stallman and AS on this, but their positions are beyond what’s reasonable/sensible/practical.

RMS (Stallman) gets a lot of stuff exactly right: software patents are a horrifically bad idea: copyright is the right thing for mere mortals, copyleft even better (for those willing to do it), but this particular cause seems misdirected. Yes, the prosecution was excessive and off the wall, but JSTOR just don’t seem to me to be the bad guys AS decided they were. AS’s complaint that JSTOR was paying the publishers, not the authors, may be a good point, but it seems to me that that’s not necessarily JSTOR’s fault. And JSTOR is a non-profit. The rentier class doesn’t have their fingers in this till, other than to the extent they are charging too much to JSTOR.

So it looks to me that AS was tilting at the wrong windmill.

By the way, we’ve been here before. Robert T. Morris (creator of the Morris Worm) was also prosecuted, IMHO, excessively. (IMHO, the Morris Worm did way more good (by demonstrating that there was a nasty problem in UNIX*) than the very minor harm it caused.) Still, probation, community service, and a $10,050 fine are minor compared to what AS was facing. (Although Morris faced much more severe sentencing during the process.)

Oh, well. I’m probably coming off as a running-dog capitalist lacky.

*: which Morris father was a major contributor to!

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Cian 01.16.13 at 4:18 pm

And academic papers, since they often have some fairly serious research behind them, involve quite a bit of money to create.

Yes but the money goes to the entity that does the least to create them, the publisher. None of the money goes to the researcher, or the research funder. Meanwhile the profit margins for the seriously inefficient academic publishers are astronomical.

For the JSTOR stuff, the creation costs are long since paid off – but most of the money (around 80% if I remember correctly) is going to the publishers who contributed nothing to the digitization process.

The obvious answer to many of these problems is for the public sector to take over the (fairly minimal) costs. Unfortunately we live in an era of ideological stupidity, making this extremely unlikely due to the privatisation.

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Steve LaBonne 01.16.13 at 4:33 pm

Andrew F. doesn’t understand the first thing about the way prosecutors have to operate in the real world. There are never enough lawyers or money to even investigate, let alone prosecute, every act that may violate a law. Choices ALWAYS have to be made. Many things, including whether there are actual victims and how much they were harmed, and whether society was really harmed, can , should and must enter into these decisions. Moreover, let me be the umpteenth person to point out the obscene discrepancy between the way Swartz was treated an the way the masters of the universe who robbed millions of their livelihoods and retirement have been treated.

And David J. Littleboy doesn’t understand the first thing about how academic “content” is created, but Cian has already done a fine job of setting him straight. I would add only that in the world of natural science many investigators are actually paying page charges to publishers to get their papers published, out of grant funds that could otherwise be used to support their research. The public has paid and paid, via many avenues, by the time a paper is released. It’s OUR information.

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straightwood 01.16.13 at 4:37 pm

The college text and academic journal rackets are excellent examples of equilibrium systems that misallocate resources. Publishers have behaviorally gamed instructors and institutions such that the cost of texts has skyrocketed. Meanwhile, digital editing and distribution costs have plummeted. This is just taking money out of the pockets of students and parents and stuffing it into the bonuses of publishing CEOs, without adding significant value to society.

This is the “free market” at its worst. The developing world desperately needs education delivered efficiently, yet Capitalism drives the cost of private education steadily higher, DESPITE the presence of technologies that can dramatically reduce costs. Are the universities really so beholden to corporations that they cannot break up these rackets? What is to stop the emergence of an open texts movement?

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Matt 01.16.13 at 9:08 pm

For the JSTOR stuff, the creation costs are long since paid off – but most of the money (around 80% if I remember correctly) is going to the publishers who contributed nothing to the digitization process.

The obvious answer to many of these problems is for the public sector to take over the (fairly minimal) costs. Unfortunately we live in an era of ideological stupidity, making this extremely unlikely due to the privatisation.

It’s even worse than that. There are digital libraries that don’t charge the public anything for access, like the Internet Archive and HathiTrust. The only thing needed to make back issues of journals digitally available to the public is for copyright rentiers to get lost — but of course they won’t.

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Andrew F. 01.16.13 at 10:35 pm

Steven, I agree of course that prosecutors should weigh the seriousness of the crime, and the harm caused by such crimes, in deciding whether to prosecute. I was discussing whether MIT’s position should make a difference to that decision; for reasons stated, I think it should not be given decisive weight.

And while, again, I think the law in question needs to be changed, the law itself isn’t so immoral as to render the enforcement of it unethical. If you accept the facts as alleged in the government’s indictment, then it’s difficult to sustain an argument that the prosecutor ought not have allowed charges to be brought. So that brings us to how the prosecution behaved once Aaron was indicted.

It may be that the prosecution acted unreasonably for some period of time – perhaps for nearly all of the time. I don’t know what transpired during the negotiations.

But the ultimate offer of 6 months jail, and a guilty plea, isn’t indicative of a vindictive persecution. The worst part about it is the felony record, not the 6 months. However, it’s hard for me at least to see the prosecution backing off a guilty plea to a felony, given the indictment, and given that the facts would persuasively support it.

The prosecutor’s function is not to act as a second legislature, ignoring laws with which she disagrees and enforcing only those she endorses. Arguments about intellectual property regimes really are not relevant to an evaluation of her conduct. For all I know, she could be a passionate proponent of a more relaxed intellectual property regime; her duty with respect to the law would not be any different.

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Tim Wilkinson 01.16.13 at 11:03 pm

Just to address one point – The worst part about it is the felony record, not the 6 months</i.

You seem very sure. Ever been inside? (Don't answer that, but I doubt it.) I'm not familiar with the US penal system and the varying degrees of brutality of its various ways of incarcerating people (and, for example, to what extent different classes of 'felon' are segregated), but this would be a federal prison, wouldn't it, not what USians call 'jail'? My understanding is that federal time is considered especially hard. You may be a hardboiled, streetwise pugilist who could do 6 months standing your head, but a few months in that environment can destroy people who are not equipped to cope with it, and I'd certainly have put AS in that category.

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LFC 01.17.13 at 2:39 am

@TW There are different levels of federal prisons, depending, e.g., on severity of the crime and whether the inmate is considered dangerous, etc. (That said, I don’t think most people would want to spend time even in a minimum-security federal prison.)

@Andrew F.:
Your view seems to be that, in an ideal justice system, anyone who breaks any law should be formally charged with a crime. This seems to me to be unpersuasive on its face and also to render pointless the whole notion of prosecutorial discretion. As I understand it, prosecutors have discretion not just on *what* to charge, but also *whether* to charge. So the prosecutor’s duty, as I understand it, is not to “uphold the law” in a rigid, abstract, acontextual way, ferreting out every violation of every statute and charging it. I haven’t read the section of the US Attorney’s manual you linked at 80 and I certainly do not have first-hand experience here, but it seems to me that your notion of what a prosecutor’s ‘duty’ is is too rigid, and I cannot imagine that a manual’s definition of what constitutes a “substantial federal interest” in a case is anything more than a guideline, to be interpreted by a prosecutor in the light of various practical, contextual, and moral considerations.

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LFC 01.17.13 at 2:45 am

And if Kerr ever gets around to writing his post on how the prosecutors behaved here, I hope someone will mention it, because I have no interest in going over to Volokh Conspiracy otherwise.

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Rich Puchalsky 01.17.13 at 4:38 am

Kerr’s piece is up here The link was just a nofollow so I inserted what I think is the right one – JQ

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John Martin 01.17.13 at 4:49 am

Reading your collective comments I understand most of you are well educated. Let me give you another perspective, one of knowing what the inside of federal prisons are having been in four federal prisons from the lightest called a camper prison to maximum security. This is now place for a young man like Aaron Swartz to reside for any length of time. Aaron being Jewish would have to belong to the white tribe because in federal prison everyone belongs to either a white, black or hispanic tribe they don’t mix. As a Jew he would probably have difficulty assimilating into the white tribe since many of the whites are skin heads, etc. Perhaps they would send him to a NY prison with some Jews in it, which I’m not familar with. He would have to rely on using his technical skills to work in a prison factory or to train other inmates or correction officers. The bottom line is this bright young man would be extremely vulnerable and it he stay for over 2-3 years he would be damaged for life. MIT and federal prosecutors should be ashamed for pushing such a minor offense to this level of vindictiveness, I hope the MIT president and the justice officials making the decision to ellevate this prosecution are forced to resign in discrace.

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Sebastian H 01.17.13 at 5:39 am

I think Kerr is overly tepid on the case, but even given that he provides a number of useful points about how the computer law should be changed. And he is 100% correct that these were commonly used prosecution tactics even if I disagree that it excuses these particular prosecutors.

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Tim Wilkinson 01.17.13 at 6:22 am

looks like the url’s been stripped out. Here:

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

On a quick inspection, I notice that Kerr imports a particular understanding of the single phrase ‘civil disobedience’ into AS’s ‘guerilla manifesto’ so as to impose a reading entirely at odds with the rest of the document – which is about ignoring copyright (a civil matter when not done for profit?) so as to liberate data. Kerr suggests that AS is here advocating criminal conduct with the aim of changing the law: he does not do so. This ‘manifesto’ is about liberating information, by circumventing attempts to keep it private. That is not in itself a crime – even if the information is subject to copyright – and, indeed, no count in the indictment is about copyright ‘violation’.

(While I’m at it, I didn’t see much good argument in post 1 that fraud charges were appropriate. Playing a ‘cat and mouse game’ is not deception – quite the opposite. I’m also not entiorely convinced that the behaviour of network admins can be allowed to define ‘authorised access’ – this is (at least by analogy) an authoritarian view, baed on discretion, where one would normally expect ‘authorisation’ or rather ‘not being unauthorised’ here to be defined at least partly by contractual relations. Kerr mentions – this is still about post 1 – JSTOR’s ToS, but then says that AS circumvented mechanical, not legal, obstacles. If one is not legally barred from doing something, then one may attempt to do it even in the face of attempts to stop one – provided that the attempt is not unlawful in some further way. It’s not exactly unheard of for one party to a contract (e.g. British Telecom plc) to try and place obstacles (e.g. download limits) in the way of its counterparty (e.g. me) exercising its rights (e.g. unlimited downloads) under the contract, and if it does so, then it’s not obviously unlawful for the counterparty to attempt to surmount those obstacles. What the contractual relations were in this case is complex and unclear, but I’d guess that if AS did in fact conform to the letter of JSTOR’s ToS, then that might count as his consideration, in which case JSTOR’s quid pro quo might well be to provide the content. Dunno, but Kerr’s account seems a bit patchy in this area at least.)

So Kerr concludes that The evidence suggests to me that this was not a one-time mistake or an impulsive decision. Rather, Swartz was acting very deliberately with a quite far-reaching goal: he was intentionally breaking the law in the short run to achieve a long-run goal of nullifying the protections of a set of democratically-enacted laws that he opposed. He also seems to think, further, that not only was As’s access clearly ‘unauthorised’ (see parenthesis above), but makes an odd appeal to a the Rawlsian/masochistic conception of ‘civil disobedience’, which invites punishment, to argue that AS should be punished – though in fact acknowledging that AS’s conduct is at odds with this conception: The great tradition of civil disobedience is to intentionally violate the law and proudly bear the consequences in order to change public opinion and eventually change the law, not to violate the law in secret and try to render the law you oppose unenforceable while avoiding punishment. So I think some kind of criminal punishment is appropriate. I don’t know how that is supposed to work. Kerr could have just stuck with the evidence suggests to me that this was not a one-time mistake or an impulsive decision.. Why add the spurious stuff about civil disobedience?

He didn’t break into the closet because he liked closets; he was trying to find a way to do what MIT and JSTOR were trying to block. – he didn’t break into the closet at all, did he? And in fact wasn’t he leaving his laptop there because the downloads took a long time (and obviously making some attempt to hide his unattended laptop)? It’s not clear to me that MIT did try to block him at all; only JSTOR. MIT (or the cops they finally called) actually allowed the download to go on while they set up cameras to await AS’s return.

He wasn’t hiding his face from the video camera in the MIT closet out of shyness; he knew that he was doing something illegal and he was trying not to get caught.

Once he saw the trap laid for him, he tried to avoid it – that doesn’t mean he thought he was – or that he was – doing anything criminal. Of course he might also not want to be ‘caught’ doing something tortious, or which might cause disciplinary measures, etc. And indeed he might not consider why the trap was laid, just know a trap when he sees one, and know that it’s best not to fall into traps.

I really wonder about Kerr when I see him making an inference from AS’s running away from the police when they approach him to consciousness of guilt of some offence.

I don’t think it would have been right to just let Swartz go ahead with his plan to intentionally violate the law, releasing millions of articles onto file-sharing networks, without the law responding at least in some way. But as noted above, that was the part which did not ‘violate the law’ – by which I assume Kerr means the criminal law.

OK i’m bored now and so are you I expect. But I am deeply unimpressed (FWIW, YMMV, IANAL etc.)

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Tim Wilkinson 01.17.13 at 6:23 am

other comments intervened

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Tim Wilkinson 01.17.13 at 6:28 am

also, MIT (or the cops they finally called) actually allowed the download to go on is probably wrong – but from accounts I’ve read, they took action only once AS’s laptop was unattended and outside his control. This too may be wrong. I’ll get me coat.

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Tim Wilkinson 01.17.13 at 6:32 am

except to say I really wonder about Kerr when I see him making an inference from AS’s running away from the police when they approach him to consciousness of guilt of some offence. should be strengthened further to say ‘earlier consciousness of guilt, of a specified offence, during the fact’.

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Steve LaBonne 01.17.13 at 1:50 pm

I work for a prosecutor’s office and with prosecutors (in my capacity as a forensic scientist). I can only repeat that Andrew F. has no idea at all how the whole business works.

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jonnybutter 01.17.13 at 2:15 pm

My understanding is that federal time is considered especially hard.

No. If you have to go to prison in the US, it’s far better to be in the Federal system than any state prison. Neither here nor there in terms of the topic at hand, but let’s get that straight. AS shouldn’t have faced time in any prison for what he did of course.

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Rich Puchalsky 01.17.13 at 2:18 pm

Kerr’s piece is better than I thought it would be, in that it at least acknowledges that our system does this kind of prosecutorial persecution routinely, and that people might be angry about that. Not that that is anything that people would work on, realistically! Kerr writes:

“That’s not to excuse what happened, but rather to direct the energy that is angry about what happened. If you want to end these tactics, don’t just complain about the Swartz case. Don’t just complain when the defendant happens to be a brilliant guy who went to Stanford and hangs out with Larry Lessig. Instead, complain that this is business as usual in federal criminal cases around the country — mostly with defendants who no one has ever heard of and who get locked up for years without anyone else much caring.”

But what does Kerr actually recommend doing?

“First, the felony enhancements for 1030(a)(2) are much too broad. I would significantly narrow them. Second, I would repeal 1030(a)(4), which is redundant as it only a combination of 1030(a)(2) and the wire fraud statute, 18 U.S.C. 1343. It therefore only leads to extra and redundant charges to confuse juries, and is better off repealed.”

In other words, let’s get rid of the part of the particular law that affects charismatic white well-off people, and the more important, broader problem can be addressed by being “angry”, as part of a utopian vision that we never do anything about.

I also note that Kerr’s piece confirms what every left-winger tends to say about these cases, turning conspiracy into policy. Namely, that the doctrine of “special deterrence” means that the appropriate punishment is considered to be whatever will keep the person from doing it again. It’s not related to the social harm caused by the crime, really. It’s strictly a method of social control, and the prosecutors will jack up the punishment to any height needed to make sure that they deter you.

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Henry 01.17.13 at 2:59 pm

On Kerr’s two posts, briefly.

The first post I am largely going to pass over, because it is detailed analysis of the current status of interpretation of a law, which I am obviously incompetent to respond to. The one place where I _do_ feel comfortable in challenging him is on his assertion that changing your MAC address is equivalent to using someone else’s ID and password, because it is “a case of circumventing code-based restrictions by circumventing identification restrictions.” This seems to me to be obviously incorrect on two grounds. First – MAC addresses, unlike passwords, are _not_ measures that were created in order to secure or restrict access to a network. They are instead technical features that are primarily intended to keep networks running smoothly, which can be readily changed (and are changed) for legitimate technical reasons (i.e. to allow machine virtualization), without any need for permission from the network administrator. Second, when one changes one’s MAC address in the manner that Aaron is alleged to have done, one is not claiming to be someone else – at most, one is obfuscating who one actually is. More precisely, one is engaging in a mild form of _suppressio veri._ Using someone else’s identity and password is a particularly unambiguous kind of _suggestio falsi_ – which is rather obviously more egregious. If one of our banned trolls on Crooked Timber changes their ID to try to comment again under a novel pseudonym, they are being a pain in the arse. If they change their ID so as to pretend that they are an established commenter, then it’s a different, and far worse matter. If I (as a protestor) seek to evade police arrest before getting to the protest by concealing my banner in a bag, I am not being criminal. If I try to get to the protest by dressing up as a policeman, badge and all, it’s a whole different kettle of fish.

Perhaps there’s case-law on this particular set of issues in computer lawpointing in the other direction – IANAL. But I’d like to see it, and to hear some analysis to be convinced that two forms of behavior which seem extremely different to me (and, I suspect, to most moderately experienced computer users) are in some deep sense equivalent to each other. This appears to be something that Kerr specifically believes – he is not saying that the prosecution has a colorable case, but that this is how we should analyse these issues.

On the second post – what I agree with is Kerr’s statement that if you are angry about this, you ought to be angry about a much more general phenomenon of prosecutorial abuse of discretion, stretching across many, many defendants who don’t have the friends that Aaron Swartz had. This is absolutely right (although it doesn’t save the prosecutors in this case from accusations of specific culpability as Kerr suggests; see below). This came up in Aaron’s funeral service, when Aaron’s father specifically spoke in his eulogy to the broader problem of prosecutorial bullying, and how it hurt multitudes people who didn’t have Aaron’s advantages. Jennifer Granick has an excellent longer post on this.

What I find rather startling, is his suggestion that there is some ambiguity about what sentence would have been sufficient to deter Aaron Swartz from doing this again. I will phrase this as mildly as I can – we already know what sentence was sufficient to precipitate him over the edge into committing suicide. We also have been told that (if MIT had behaved differently) an agreement could have been brokered for a deferred prosecution – perhaps this report is incorrect, and other facts will emerge over time, but I would suspect that there is at least something to it. This brings up the question of whether or not prosecutors should have taken the risk of Aaron’s suicide into account, a question which I am surprised not to see Kerr addressing. Very clearly, the prosecutors knew that there was a substantial risk of this happening – his defense lawyers made it clear, and there was also important external evidence (in Aaron’s publicly available writings) that this was not a spurious threat. The individual prosecutors seem to have responded to this concern with callousness and indifference. It seems plausible to me that there is a general tough guy culture among prosecutors, and strong incentives to pursue indictments, so that many other prosecutors would have behaved the same way. It also seems plausible to me that many prosecutors would have not. To the extent that this is true, the individual prosecutors are specifically culpable (for callously not taking the risk of suicide into their considerations) above and beyond the general questions of systemic culpability.

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Henry 01.17.13 at 3:01 pm

Also, I should say that Kerr’s suggestion that “Aaron’s Law” is weaker than it sounds at first seems highly plausible to me, and that Kozinski’s narrow interpretation seems better, although I would certainly prefer direct legislation which was stronger than Lofgren’s initial draft to relying on the Supreme Court.

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Henry 01.17.13 at 3:08 pm

Finally, building on Rich’s comment, Aaron’s death has been taken up by a multitude of people, each with their own interpretation of what the core problem was, and what one ought to do next. I’m entirely sure from knowing Aaron that if he were faced with the choice between collective action to free up information law and make life better for hackers, and action to remedy basic injustices and inequality in our society, he’d have pushed emphatically for the latter (he was interested in free information as an imperfect means to the end of remedying inequality, more than as an end in itself).

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William Timberman 01.17.13 at 3:12 pm

Can we stop people stealing chickens if we cut off the hands of those who do? Will putting people away forever on being convicted of stealing a car if they’ve previously been convicted of two other offenses do anything for us except overfill our prisons? It seems to me that civilized societies answered these questions a long time ago. The fantasy that draconian measures equal deterrence can only be attractive to those who are determined a) to disregard what we know about human nature, and 2) to defend a status quo which is unjust to everyone except the few who have a vested interests in its injustices.

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geo 01.17.13 at 3:14 pm

John Martin @108: Thank you for the first-person testimony. It can’t be said too often: our prisons are simply a stain on our humanity.

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William Timberman 01.17.13 at 3:23 pm

a, b…1, 2. This early in the morning I don’t seem to know the difference between counting and saying my abc’s. If only blog commenting software would let us repent at leisure. I know that there are plug-ins which allow WordPress blog commenters to edit their own comments for a designated period after posting, and to show that they’ve been edited, although not exactly how they’ve been edited. I do miss that functionality here, although I suppose that deploying it might be more trouble than it’s worth, given that everyone here is already smart enough to figure out what we were trying to say, and merciful enough to give us the benefit of the doubt on those rare occasions when the fog in our brains outwits them.

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salacious 01.17.13 at 4:54 pm

“This brings up the question of whether or not prosecutors should have taken the risk of Aaron’s suicide into account, a question which I am surprised not to see Kerr addressing. Very clearly, the prosecutors knew that there was a substantial risk of this happening – his defense lawyers made it clear, and there was also important external evidence (in Aaron’s publicly available writings) that this was not a spurious threat. The individual prosecutors seem to have responded to this concern with callousness and indifference. “

Without addressing the rest of the points in your comment, there are a lot of problems with the idea that prosecutors have an obligation to “take it easy” on depressed defendants. Although this conversation has obviously occurred only because of AS’s suicide, it’s not at all clear to me that his suicide, or the risk thereof, has any bearing on the justness of the prosecution….

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Andrew Burday 01.17.13 at 4:57 pm

Henry, 117, almost all of this is well said, but I’m not so sure about: “the question of whether or not prosecutors should have taken the risk of Aaron’s suicide into account, a question which I am surprised not to see Kerr addressing”. Can you clarify what principle you have in mind here?

I have two specific worries. (1) Should prosecutors take any possible serious harm that the defendant might do into account? Suppose the defendant is likely to do her/himself some serious harm short of suicide. Suppose s/he’s likely to do harm to others — e.g. suppose some defendant has in the past responded to stress by beating the hell the out of his wife. Should prosecutors have to take that into account when charging him? What keeps this from sliding into extortion by the defendant?

(2) Suppose Swartz had been able to pull himself through this (or imagine another defendant much like Swartz but able to do get through it). Would the prosecutor then be less culpable for having tried to extort a false confession through exaggerated threats, or for trying to suppress free expression over the net? (A confession would have been false at least in the sense of being insincere.) It seems to me those are the real issues, and it would make no difference to them if Swartz had pulled through.

Prosecution is organized violence. Prosecutors have to have some kind of “tough guy” attitude. Swartz’s father made exactly the right point about focusing on the general issue of prosecutorial abuse. It kind of sounds like you’re calling for a special exception for Swartz, based on his psychological disposition. If that’s not so, what is the principle you have in mind?

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Rich Puchalsky 01.17.13 at 5:33 pm

Here is something else that’s missing from Kerr’s piece. Jennifer Grannick writes (same link as above):

“It is also true that in my criminal law career, I found the U.S. Attorney’s office in the District of Massachusetts particularly immoral. In one case, I was told that if my client failed to enter a plea that day, the prosecutor would obtain a superseding indictment and add embarrassing pornography charges to my client’s computer crime case based on materials allegedly found on his hard drive but never disclosed to me in discovery. “

That’s why the discussion about whether Swartz really committed crimes is so pointless. It doesn’t matter whether he committed a crime or not. The prosecutors would have found something on him once they started looking, just as they can find something about anyone. Whether the actions he took were criminal or not is immaterial: the point is that they represented an intent that the prosecutors wanted to deter.

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bianca steele 01.17.13 at 6:17 pm

Henry: . . . _not_ measures that were created in order to secure . . . instead technical features that are primarily intended to keep networks running smoothly

I’m sure you can find someone better than me to come up with the analysis you ask for, but the distinction you make seems to me to have only academic validity. At least it makes little sense to me, unless I strain.

Your argument rests on whether it’s a fact that systems don’t use MAC addresses to identify specific devices at remote locations in the network, for instance to notice malfunctioning remote hardware. That’s an empirical question. OTOH, I think your earlier distinction suggests that the fact doesn’t matter, that if it happens, it is an example of low-level technicians abusing their discretion (if so, it’s not clear what the systemic remedy would be).

There are dozens of terrible injustices in this case, but whether those specific acts were things everybody does, and should be encouraged to do, and shouldn’t be punished at all, isn’t IMHO one of them. An undergraduate who did that, I think, even if his or her initial motivation was totally innocent or accidental, could lose computer privileges for a semester or more, and flunk out as a result.

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Henry 01.17.13 at 6:28 pm

salacious, Andrew – Kerr’s argument is (a) that they should have gone for the minimal sentence likely to deter him from doing similar illegal things in the future, but (b) that he has no clue what that was, and hence has no way of evaluating whether they went too far or not. First of all, I’m saying that the fact that his proposed sentence was enough to tip him over the edge into suicide suggests that this is not the mystery that Kerr says it is. Second, and more positively, I am saying that there are two issues about the more general principles. First and more broadly, I think Kerr is right in saying that this is a systemic problem, and that if we want to push back, we should push back at a more systemic level. That should, indeed, be the major emphasis here. But, to say that the system provides systematic advantages and incentives for individuals is not to provide a free pass for people who callously use this system in a way that creates unnecessary human damage. This seems to me to be one of those instances. The problems of creating bad incentives look minimal to me – because Aaron had already demonstrably been on the brink of suicide, this was not a situation where there was a likelihood of blackmail.

Many of us take on roles of authority in a much smaller way – I do, for example, when I have to deal with students who commit plagiarism (in my university I do not make the final decision, but my recommendations can certainly influence final decision). I think that there is a minimal demand on us not to become monsters when we do this, to try to balance our responsibilities to the collective with the human quality of mercy, and attention to individuals’ specific circumstances where those circumstances merit handling a situation with greater sensitivity. Striking this balance is difficult. And I think that it is hard, on a systematic level to mandate it, for many obvious reasons. But this does not mean that people who don’t show mercy and humanity, when mercy and humanity are appropriate, don’t bear some moral culpability for it. Institutions and institutional roles sometimes require us to act in ways that we do not like. But they do not (or should not) require us to become insensate monsters, and if they do, there is something very wrong with them.

128

Henry 01.17.13 at 6:32 pm

Bianca – I’m not sure I get everything you are saying here – maybe you could spell this out at greater length. But I’ll fess up myself to having changed MAC addresses once or twice (not on my university system). And the question isn’t whether or not an administrative punishment should be imposed, but whether this should be treated as equivalent to stealing someone’s ID and password, for the purposes of determining whether a felony has been committed.

129

rea 01.17.13 at 6:46 pm

It doesn’t matter whether the prosecutor should or could have anticipated that Swartz would react by committing suicide. The prosecutor well knew that he was pushing for a result that would have drastic, life-changing consequences.

130

bianca steele 01.17.13 at 7:21 pm

Henry,
Is MAC address a unique identifier for the hardware? Other commenters have already shown that it is not. But most of the examples given assume it is a hardware identifier, and changing it is often done to make two devices appear to be the same device.

Should networks use MAC address to identify users, at a hardware level? Probably there is something else available to them. If MAC address isn’t designed to identify hardware, there are going to be inherent practical problems attempting to do so, at least in some circumstances.

Should networks block MAC addresses for any reason? I can think of two reasons they might, which might annoy some people: (1) a lab creating a modem, which the ISP determines is causing its own hardware to seize up, or (2) excessive use of bandwidth using the ISP’s modem, say, for downloading. In either case, I think, the MAC address might be blocked. This would seem to be a case involving terms of service. As noted above, there are inherent practical flaws in using MAC address for that purpose.

131

Mao Cheng Ji 01.17.13 at 8:26 pm

“Is MAC address a unique identifier for the hardware? Other commenters have already shown that it is not.”

It sure is, that’s the idea. But any identifier can be spoofed.

Suppose you are commenting on a blog under your real name, and you get banned. You could then try to continue commenting under a bogus name. Far from a criminal offense, of course, but the relevant authorities tend to get annoyed. They want to be respected, and they want to control things. And if they have enough power to hurt you, to make an example, they probably will. That’s universal.

132

Sebastian H 01.17.13 at 8:29 pm

Henry, I agree with you at 127. Expanding on 2 points:

Orin Kerr correctly notes that the prosecutors engaged in very typical tactics (overcharging, creating multiple overlapping charges for jury effect, applying intense pressure to avoid trial). From a sociological perspective it may be obnoxious that these tactics haven’t caused much outcry when routinely used in the drug war for example. But contra certain voices in this thread and the others who say in effect “where were you before Aaron?”, you leverage the case that catches the public eye if you can. I don’t agree with stretching a case purely to one’s own political motives. But no stretching is required to use Aaron’s case to highlight the problems of prosecutorial discretion, overcharging, and using unjust tactics to put notching a win over the public interest and private justice. Yes it would have been nice if some case 10 years ago had caught the public eye, but that isn’t any reason to put aside this case now.

Orin argues that the typical nature of Aaron’s prosecutor’s actions should personally insulate them from attack. His argument is based on the idea that prosecutors will learn the wrong the lesson: that they should be careful with high profile suspects and continue on as normal with low profile suspects. He fears that this will widen the poor/rich divide with respect to criminal justice.

I’m not convinced by that argument for a couple of reasons. First, prosecutors can’t always tell what story is going to be big on the internet. There is admittedly an element of randomness to it. If they feel that their discretion is restrained by this fear, that is a good thing in our system where prosecutorial discretion has almost no real check. Second, institutions rarely change without strong motivation coming from somewhere. Fear of having your reputation ruined is a strong motivation that would be appropriate to use, and is certainly easier to balance than other strong motivations I can think of (for example exposing prosecutors to increased legal liability for inappropriate prosecution).

We clearly need to do something about the way high level prosecutors function. The satanic child molestation daycare witch hunts got Janet Reno all the way to the Attorney General’s office, propelled numerous prosecutor’s careers and left a huge wake of innocent yet destroyed lives without even serious reputational damage. It is hard for me to believe that starting with reputation damage is already going too far.

133

Henry Farrell 01.17.13 at 8:46 pm

Thanks Sebastian – that is very helpful.

134

Tim Wilkinson 01.17.13 at 8:52 pm

re: changing MAC address

The key concept is ‘deception’ or ‘false pretences’ – the fraud charges depend on this element, and a charge of theft, which by constrast would not require any deception, only ‘stealth’ (intentionally acting without permission) was not available here*.

In this case, the MAC and IP addresses could saliently be used only 1) to prevent further access 2) – perhaps, and not very interestingly – to identify two presences detected on the network as coming from the same machine. Changing a MAC address might be presented as an attempt to deceive on the second score. This would not be plausible (why would AS care, or suppose that this would work?), but even if it were, such deception would not itself be a part of the method used for obtaining the ‘property’ or services in question.

[Insert analogy about a shoplifter (the theft bit is disanalogous of course) using a disguiseso as to avoid a store ban, or something]

*Very roughly and a touch constructively (IANA legal theorist, certainly not of any standing) I’d describe this as being because no intent to materially usurp self-regarding rights of ownership was involved – you don’t steal something just by gaining access to and copying it, unless you then go on to usurp further rights such as, notably, the right to the income. This is overly – probably incorrectly – systematised, and not based on a detailed study of legal materials from the jurisdiction. IANAL. But it is some kind of indication of the kind of considerations involved, I think.

135

Tim Wilkinson 01.17.13 at 9:03 pm

Also – not sure of relevance but (obviously) think there may be some – you don’t hear of ‘stealing’ services rather than goods – fraud can cover either. I suppose that might be conceptualised as being because (a) theft simply only applies to tangible goods, (b) providing services can’t really be done inadvertently – one consents to the narrow act of providing the service, it’s just that one’s consent might be vitiated by fraud, (c) in providing a service, on eis not depreived of anything (though I suppose this would reduce to (a)).

OK, that’s enough speculative legal theory from the man in the pub – but I agree with Henry that the basic point about deception stands up, and that we laypersons are in a position to be reasonably confident of that, it being toward the factual end of the law/fact continuum.

136

Tim Wilkinson 01.17.13 at 9:55 pm

One more before I really start pissing people off.

Here http://www.senecac.on.ca/library/Find_Articles/DB_Extra/jstor_licensing.pdf is an earlier version of JSTOR’s ToS – I assume they were changed after the fact to address activities like AS’s.

It’s just about possible that AS – rather than MIT – could be found not to have breached them by his downloading activity (though he presumably intended to by his planned dissemination activities).

Two parts he might have breached are: attempt to override, circumvent, or disable any encryption features or software protections employed in JSTOR (doubtful); download or print, or attempt to download or print, substantial portions of the entire run of a journal (probable but not certain).

It may be that AS was, under the then-current terms, an ‘authorised user’ – this concept attaching to persons and only indirectly and rather tenuously to their behaviour (“Authorized Users” are persons designated by your institution who have agreed to access and use JSTOR in accordance with the Terms and Conditions of Use.) Depending on what the T&Cs were at the time, he might well have had this status, since the current version defines ‘authorised users’ simply as individuals who are affiliated with an Institutional Licensee – which AS was.

I wouldn’t necessarily expect the courts to be very patient in listening to this kind of argument, which may not work even on the terms I describe – and no doubt various counterarguments could be made, especially when the whole of the T&Cs are taken into consideration. But still, it’s at least not crashingly obvious that AS was in material breach or ‘unauthorised’, and if he wasn’t, then it may be that JSTOR staff’s finding his access unwelcome and trying to prevent it doesn’t establish that his access was ‘unauthorised’.

137

Harold 01.17.13 at 10:03 pm

Not only that, but the closet in which he was said to have “trespassed” was not locked at the time.

138

rea 01.17.13 at 10:17 pm

Doors don’t have to be locked for entry without permission to be a trespass.

139

Rich Puchalsky 01.17.13 at 11:05 pm

I’ll repeat myself one more time too: the legality or otherwise of what he did makes no difference to anyone but the lawyers. Imagine that someone had the ability to search through all of your possessions and your computer and have detectives investigate your life, and then use the full power of the law to charge you with anything that they found that looked like it might be a crime under some legal interpretation. Of course they would find out something on any one of you, through which they could destroy you. For people with less socioeconomic power, if they can’t find something, they plant something, or coerce someone else to testify against them.

All that happened was that Aaron Swartz drew their attention to something that they didn’t want him to do. It doesn’t matter whether what he did was legal or illegal. Not to him, not to the prosecutors, and it shouldn’t matter to us either. It was just an exercise of power, just like the rest of our legal system.

140

Harold 01.17.13 at 11:44 pm

Doors don’t have to be locked — I assume that applies to a residence, but Aaron had permission to be in the building.

141

salacious 01.17.13 at 11:47 pm

139 is both wrong and counterproductive. American criminal justice is not a pure “exercise of power”; the pathologies of the system are more subtle and complex than that. Top-to-bottom cynicism misdiagnoses the problem(s) and breeds a festering cynicism in place of any impulse for reform.

142

bianca steele 01.18.13 at 2:14 am

I’m tempted to advise Harold to go into a wiring closet where he works and attach his laptop to it directly, and report back to us on which body part the IT guy chewed off, but that would be wildly inappropriate in this case.

143

Katherine 01.18.13 at 10:13 am

Tim Wilkinson @ 136 shows up beautifully the whole problem with this law and this prosecution. What he describes sounds like a problem on a first year undergrad contracts exam. It’s a civil, contractual matter, and should not be a criminal one.

People can argue backwards and forwards about whether what Schwarz did was “right” or “wrong” til the cows come home – clearly reasonable people disagree. But there are plenty of things that people do “wrong” that are not thereby criminal. Breaching a contract can cost you money if you are successfully sued, but isn’t going to cost you jail time and a criminal record.

144

Mao Cheng Ji 01.18.13 at 11:12 am

“American criminal justice is not a pure “exercise of power”; the pathologies of the system are more subtle and complex than that. Top-to-bottom cynicism misdiagnoses the problem(s) and breeds a festering cynicism in place of any impulse for reform”

I suppose one can could consider ‘justice system’ as an institution in and of itself, but it also seems reasonable to view it as a mere appendage, a tool of another, more fundamental institution.

Also, ‘military’. You could, perhaps, reform a military to the point where every soldier and every officer is super~honest and super~dedicated and super~honorable all ’round, but what is it exactly that this military is doing, whom is it defending, and against whom? Why, ask Smedley Butler…

145

Andrew F. 01.18.13 at 12:37 pm

LFC, obviously decisions must be made as to how law enforcement resources are allocated, and prosecution of some crimes are prioritized over prosecution of others. My point is that a prosecutor ought not decline the enforcement of a law simply because she would prefer a different law or prefer that the law in question did not exist.

I’m distinguishing between a prosecutor prioritizing resources on the basis of relative harm caused by different crimes, and a prosecutor prioritizing resources simply on the basis of other policy preferences.

For example, a prosecutor may want to prioritize larger tax evasions over smaller tax evasions (all else, such as the visibility and deterrent value of the cases, being equal), because the former result in more harm (dollars illegally withheld from the government) than the latter. But it would be inappropriate for the prosecutor to prioritize evasions of taxes on activity X over evasions of taxes on activity Y simply because, in her view, society would be better off if activity Y were not taxed (or were taxed less). That a prosecutor believes that we’d all be better off if capital gains were not taxed is not an appropriate reason for him to decline prosecution of evasions of capital gains taxes.

Now, does it always work that way? Of course not. Prosecutions can happen, or not happen, for lots of unethical reasons.

Given the laws in question, a reasonable view that the violation of them caused and threatened a significant amount of harm, and a view that the individual accused had the requisite knowledge and intent, it’s hard to see an initiation of prosecution as unethical. But that does not mean that the manner in which the prosecution was conducted is ethical. I don’t know the answer to that question. None of the facts of which I’m aware persuade me that the answer is yes, but I also don’t know enough about the case to say no.

I will say that the question of what the prosecutors knew about Aaron’s state of mind during the prosecution is a tricky one.

Thus far, all we know is that a defense attorney claims that he mentioned, at one point, that Aaron is a suicide risk to the prosecution. Presumably, this was in connection with negotiations for a more lenient plea agreement. But an unsubstantiated claim such as that, delivered by an advocate to pressure for a better agreement, isn’t enough to establish the claim as true. So I’m not sure we even need to reach the question of what a prosecutor should do if he has knowledge that his insistence on what he otherwise believes to be an appropriate plea will jeopardize the health of the defendant.

But let’s say that the prosecution does have such knowledge. If we assume that there are no other measures to address the defendant’s illness, then as a matter of humanity, I think that a prosecutor may be morally obligated to consider altering his range of acceptable agreements. However, that assumption is unlikely to be the case. There are treatment options for depression other than a better plea agreement; if it can be determined that the defendant is nonetheless likely to seriously harm himself, or if the defendant’s consents, then he can be committed to a hospital for treatment.

146

Andrew F. 01.18.13 at 12:39 pm

LFC, obviously decisions must be made as to how law enforcement resources are allocated, and prosecution of some crimes are prioritized over prosecution of others. My point is that a prosecutor ought not decline the enforcement of a law simply because she would prefer a different law or prefer that the law in question did not exist.

I’m distinguishing between a prosecutor prioritizing resources on the basis of relative harm caused by different crimes, and a prosecutor prioritizing resources simply on the basis of other policy preferences.

For example, a prosecutor may want to prioritize larger tax evasions over smaller tax evasions (all else, such as the visibility and deterrent value of the cases, being equal), because the former result in more harm (dollars illegally withheld from the government) than the latter. But it would be inappropriate for the prosecutor to prioritize evasions of taxes on activity X over evasions of taxes on activity Y simply because, in her view, society would be better off if activity Y were not taxed (or were taxed less). That a prosecutor believes that we’d all be better off if capital gains were not taxed is not an appropriate reason for him to decline prosecution of evasions of capital gains taxes.

Now, does it always work that way? Of course not. Prosecutions can happen, or not happen, for lots of unethical reasons.

Given the laws in question, a reasonable view that the violation of them caused and threatened a significant amount of harm, and a view that the individual accused had the requisite knowledge and intent, it’s hard to see an initiation of prosecution as unethical. But that does not mean that the manner in which the prosecution was conducted is ethical. I don’t know the answer to that question. None of the facts of which I’m aware persuade me that the answer is yes, but I also don’t know enough about the case to say no.

I will say that the question of what the prosecutors knew about Aaron’s state of mind during the prosecution is a tricky one.

Thus far, all we know is that a defense attorney claims that he mentioned, at one point, that Aaron is a suicide risk to the prosecution. Presumably, this was in connection with negotiations for a more lenient plea agreement. But an unsubstantiated claim such as that, delivered by an advocate to pressure for a better agreement, isn’t enough to establish the claim as true. So I’m not sure we even need to reach the question of what a prosecutor should do if he has knowledge that his insistence on what he otherwise believes to be an appropriate plea will jeopardize the health of the defendant.

But let’s say that the prosecution does have such knowledge. If we assume that there are no other measures to address the defendant’s illness, then as a matter of humanity, I think that a prosecutor may be morally obligated to consider altering his range of acceptable agreements. However, that assumption is unlikely to be the case. There are treatment options for depression other than a better plea agreement; if it can be determined that the defendant is nonetheless likely to seriously harm himself, or if the defendant’s consents, then he can be committed to a hospital for treatment. These options should come first.

147

Dan Hardie 01.18.13 at 12:45 pm

Just after Aaron’s death, someone set up a petition on the White House site to remove US Attorney Carmen Ortiz from office for her vengeful and excessive behaviour in this case. (Yes, I know Steve Heymann was the point man in this case, but Ortiz was his boss and signed off on a number of gung-ho statements about Aaron’s arrest, and later ones gloating how much jail time he faced.)

The Obama administration had previously pledged that it would issue a formal response to any White House online petition that gained more than 25,000 signatures: which the Ortiz petition managed to do, three days ago. And now the Obama administration has announced that it will respond to any White House online petition that gains more than….100,000 signatures.

This is really small-minded, cowardly behaviour, and the Obama administration deserves to lose this particular fight. Online petitions aren’t always very effective as a campaign tool, but the fact that the White House upped the threshold right after the Ortiz petition passed it almost certainly shows that this is something they are trying to avoid.

I’m not an American citizen myself, so I haven’t signed the petition and won’t. But if you are a US citizen, please go to the site, get a White House log-in and sign. One more time, the link is here
https://petitions.whitehouse.gov/petition/remove-united-states-district-attorney-carmen-ortiz-office-overreach-case-aaron-swartz/RQNrG1Ck.

148

Dan Hardie 01.18.13 at 12:51 pm

And the petition is currently up to 42,000 signatures after less than a week in existence, so it really isn’t a hopeless battle.

Yes, people angry about Aaron Swartz’s death should try to take action about more general matters like prosecutorial abuses or absurd Federal computer laws. But that’s no reason not to hold this particular prosecutor to account for her thuggish actions: it’s a worthwhile action in its own right and it’s a good way to start mobilising people for a wider campaign.

149

Rich Puchalsky 01.18.13 at 1:53 pm

Actually, that petition is still going by the old threshold, as far as I can see. When they raised the threshold to 100,000, it was for new petitions, not existing ones. Not that the existence of that petition means that anything will be done, or even that it will be known of at any high level of the government, based on replies to previous petitions visible on the site.

People who want to say that the system isn’t just about power can look at lots of other contemporary cases, like the people currently in solitary for refusing to answer Grand Jury questions about their social contacts.

150

ajay 01.18.13 at 1:53 pm

Imagine that someone had the ability to search through all of your possessions and your computer and have detectives investigate your life, and then use the full power of the law to charge you with anything that they found that looked like it might be a crime under some legal interpretation. Of course they would find out something on any one of you, through which they could destroy you.

Nope.

151

Andrew F. 01.18.13 at 2:21 pm

LFC, obviously decisions must be made as to how law enforcement resources are allocated, and prosecution of some crimes are prioritized over prosecution of others. My point is that a prosecutor ought not decline the enforcement of a law simply because she would prefer a different law or prefer that the law in question did not exist.

For example, a prosecutor may want to prioritize larger tax evasions over smaller tax evasions (all else, such as the visibility and deterrent value of the cases, being equal), because the former result in more harm (dollars illegally withheld from the government) than the latter. But it would be inappropriate for the prosecutor to prioritize evasions of taxes on activity X over evasions of taxes on activity Y simply because, in her view, society would be better off if activity Y were not taxed (or were taxed less). That a prosecutor believes that we’d all be better off if capital gains were not taxed is not an appropriate reason for him to decline prosecution of evasions of capital gains taxes.

Given what we know, it’s hard to see the initiation of prosecution here as unethical. But that does not mean that the manner in which the prosecution was conducted is ethical. I don’t know the answer to that question. None of the facts of which I’m aware persuade me that the answer is yes, but I also don’t know enough about the case to say no.

Re Aaron’s state of mind:

Thus far, all we know is that a defense attorney claims that he mentioned, at one point, that Aaron is a suicide risk to the prosecution. Presumably, this was in connection with negotiations for a more lenient plea agreement. But an unsubstantiated claim such as that, delivered by an advocate to pressure for a better agreement, isn’t enough to establish the claim as true. So I’m not sure we even need to reach the question of what a prosecutor should do if he has knowledge that his insistence on what he otherwise believes to be an appropriate plea will jeopardize the health of the defendant.

But let’s say that the prosecution does have such knowledge. If we assume that there are no other measures to address the defendant’s illness, then as a matter of humanity, I think that a prosecutor may be morally obligated to consider altering his range of acceptable agreements. However, that assumption is unlikely to be the case. There are treatment options for depression other than a better plea agreement; if it can be determined that the defendant is nonetheless likely to seriously harm himself, or if the defendant’s consents, then he can be committed to a hospital for treatment. These options should come first.

152

Andrew F. 01.18.13 at 2:24 pm

I appear to have submitted the same comment, and then an edited form, multiple times. Apologies – none of the submissions appeared in my browser until just now.

Please just use the last (least verbose) comment.

153

Tim Wilkinson 01.18.13 at 2:55 pm

Rich, 139 – It doesn’t matter whether what he did was legal or illegal. Not to him, not to the prosecutors, and it shouldn’t matter to us either. It was just an exercise of power, just like the rest of our legal system.

Well my remarks were intended primarily just as criticism of Kerr as, functionally speaking, an apologist. Even accepting your general approach, it surely does make a difference to point out the particulars of how the mechanisms of control you describe have in fact been applied in a given case – especially for the benefit of those who don’t find all this stuff as blatantly obvious as you do. If you want to convince people that the legal system is just an execerise of power, I would havethought providing examples would be quite important.

Also I tend to agree to an extent with salacious @141. The great strength of the US system of control is that it is not presented as naked power, unlike say the 3rd Reich which really involved internalisation of a might-is-right attitude and an official dictatorship. Of course a dictator or any small ruling class can’t really dominate by sheer physical domination; they need cadres and/or ideology – this is quite important for understanding the subtleties involved.

Even if you suppose that the whole constitutional rule-of-law framework is essentially a sham, regarded as such by those who really matter, you would presumably accept that there seem to be quite a number of naive dupes staffing this elaborate charade, as well as very many others subject to varying degrees of hypocrisy and self-deception, which psychic defences cannot be stretched indefinitely. And that, along with the need to make some modicum of effort to head off public cynicism, means that the putative charade has actually taken on some degree of reality. Making it look good does involve allowing it actually to be somewhat good, and there’s always the possibility that the lunatics might one day be able to take over the asylum.

At this point I trot out my favourite Conspiracy Theory-related quote:“Don’t let them see us! Don’t tell them what we are doing!” Are these the words of the all-powerful boards and syndicates of the earth? It is a theoretical implication of even the most grandiose global conspiracy theory that those in control are not all-powerful and omniscient and the populace are considered capable of resistance, that they think they have to go to the trouble of conspiring to make it look good to the rest of us. And it is a pragmatic implication that it is possible for at least some people to see through the deception at least up to the point of suspicion. Each of these implications is relatively speaking somewhat encouraging.

And the same kind of considerations apply once we scale things down to more realistic and subtle theses about covert social control. Mao Cheng Ji’s honourable soldiers would actually impose real limits on what can be done. Of course the solution for the Cheneys of this world is to destroy the culture that underlies peoples’ ability to recognise and resist corruption and tyranny. We (in the UK and US) are at present certainly on a downward trajectory so far as this is concerned, and I’s agree with salacious that an all-encompassing cynicism is likely to accelerate rather than retard or reverse that process.

—-

Katherine – yes, and Kerr seems strangely insensitive to this difference, for example when he’s speculating about AS’s supposed consciousness-as-of-criminality, or indeed inferring his actual criminality, from some vaguely furtive behaviour.

Of course the charges based on ‘unauthorised access’ do mean that the the conditions in a contract may become relevant to the criminal law. It’s not unique in that – there are (in English law) even common law offences which have this feature: burglary entails trespass which entails the absence of a privilege of entry, which privilege might be conferred by contract. But unlike burglary, and like the fraud charges laid in this case, the offence of “unauthorized access to a computer to obtain information valued more than $5,000″ do not require that any detriment or harm would be imposed on the supposed ‘victim’ by the intended conduct, nor that said conduct has a character that would independently be recognised as a moral crime in itself.

One final complication is of course that the term ‘authorised’ & cog. occurring in a contract should not be assumed to have the same meaning as homonymous terms in the definition of a criminal offence.

154

Rich Puchalsky 01.18.13 at 5:05 pm

Tim Wilkinson, I don’t mind that other people have different ideas about how to approach this problem. If someone else thinks that figuring out whether someone in a particular case really committed a crime or not according to our current system would be helpful, then go to it. I just generally don’t think it’s as helpful as people tend to think it is.

I don’t agree that “there seem to be quite a number of naive dupes staffing this elaborate charade”. Look back at Kerr’s piece, where he says that this kind of prosecutorial overreach is widespread and common, and then blithely goes on to his particular legal sub-specialty. Everyone staffing the system knows that our system is unjust. It’s just that it’s their job to staff it nevertheless. I don’t think that there’s really any pretense left.

So getting into a dispute about the question of whether someone is guilty according to the latest absurd law is something that lawyers have to do, but that no one else really has to do. Lawyers have to do it because they get paid for it, and of course they like to argue within their field of expertise. But it’s all just a job-related task. That’s why you can have someone like Martin Lederman who can attack the legal arguments for Bush/Cheney expansion of executive power and then supply the legal justification for Presidential assassinations as soon as he goes to work for Obama. Any justification can be supplied for whoever is paying the bills.

155

MPAVictoria 01.18.13 at 5:10 pm

“Nope.”

You are way too confident of that ajay.

156

Mao Cheng Ji 01.18.13 at 5:26 pm

“Mao Cheng Ji’s honourable soldiers would actually impose real limits on what can be done.”

Nah, I don’t think so. Not without questioning the ideological foundation. Which is exactly what honorable soldiers don’t do. They defend the king, the faith, the freedom, the socialist motherland, the people, the constitution, or whatever else it may be, against all enemies, external and internal. And that’s all there is to it.

157

Tim Wilkinson 01.18.13 at 5:31 pm

Well, yes the psychology of those involved is complex – we can distinguish the approach of wide-eyed college leavers from that of jaded hacks, and especially of those who rise to the top. Of course even the official ideology may be warped (e.g. in other areas the idea of market ‘freedoms’), and the process of warping it further is under way. prosecutors engaging in the tactics under discussion certainly don’t necessarily see themselves as acting on behalf of oppressors. Various combinations of ignorance, rationalisation and moral decay can help them overlook their place in the wider context.

Suggesting that all involved are entirely self-aware, willing servants of an oppressive regime is in any case going to be prima facie unconvincing to many, and to return to my main point, trying to show that the justifications supplied are highly dubious even by the internal standards of the official doctrine system is a non-circular route to exposing the corruption of the system. That doesn’t preclude any other useful rhetorical strategy I can think of.

158

ajay 01.18.13 at 5:46 pm

You are way too confident of that ajay.

Yeah, I am pretty confident that even full police access to my hard disk would not produce enough evidence of any crime to get me convicted by a British jury and sentenced to thirty years in prison. Good grief, what do you think I do in my spare time?

159

Tim Wilkinson 01.18.13 at 5:51 pm

Mao Cheng Ji – well, there was some resistance to Hitler among senior German army officers – some of it, apparently, due to conscience rather than patriotic prudence. But I was more thinking of the fact that honourable soldiers disobey illegal orders. I’m not suggesting that this would prevent any particular objective – except perhaps a clearly illegal one – from being pursued, just that it would constrain the means for doing so, which could in turn render the otherwise feasible unfeasible.

The key issue is that pervasive cynicism risks being a self-fulfilling prophecy, allowing even hypocritical tributes to basic decency and justice to wither away, leaving only nihilism. IIRC, JQ expressed a similar opinion in his recent Buchanan post.

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Mao Cheng Ji 01.18.13 at 6:15 pm

Tim, it’s the concept of ‘private property’ what’s the issue here.

If AS is a hero, then basic decency dictates one course of action, but if he is a monster, destroying, deliberately and maliciously, a perfectly legitimate piece of property worth millions of dollars, – and furthermore, he is leading an extremely dangerous movement that aims to destroy more, much more, – then it’s a completely different story, isn’t it? That’s what I’m saying; does it sound nihilistic?

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MPAVictoria 01.18.13 at 6:44 pm

“Yeah, I am pretty confident that even full police access to my hard disk would not produce enough evidence of any crime to get me convicted by a British jury and sentenced to thirty years in prison. Good grief, what do you think I do in my spare time?”

You ever illegally download a song Ajay? Use a piece of clipart/picture that wasn’t in the public domain? Break a software license agreement (not that you would know even if you had as no one could read the bloody things)?

The point is that we all break the law in a dozen different ways just by going about our lives.

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Tim Wilkinson 01.18.13 at 6:54 pm

ajay, well, as an exercise as much as anything: you can get 10 years for possessing (e.g. having in your web cache) “information of a kind likely to be useful to a person committing or preparing an act of terrorism”. I bet there’s something there that can be made to fit that bill, given the right framing.

A trial on that kind of offence is going to involve a lot of theatre, and if MI5 and the rest were really out to get you, you could expect them to use all their resources and dirty tricks (let’s pretend for a moment that it’s not absurd to suppose that the security types have influence in the media, police, legal system etc., and are willing to lie when anonymously giving evidence, etc.) to build a fictitious case around your real web history, a case which might well be enough for a carefully selected judge to get a majority verdict out of a British jury – maybe not a Snaresbrook one, but, say, Harrow or something.

Multiply by three counts, with that judge giving consecutive sentences and you have 30 years. Sounds ridiculous no doubt, starting from here, but as things closed in around you, the media got behind the authorities, barefaced lies became received wisdom etc, it would appear perfectly reasonable to those who don’t know you.

As in a similar fantastic scenario I once discussed here – the invasion of Belgium by the US – it’s necessary to bracket off the implausibility of Their actually wanting to get you – that’s a precondition assumed true – and of course in such a situation, the reasons why they want to get you might well provide the kernel around which a spurious case would be built.

—–

Mao Cheng Ji – it seems to be implying nihilism with respect to the rule of law, procedural rights, proportionate sentencing and all that, which is the relevant domain.

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Katherine 01.18.13 at 7:19 pm

Yeah, I am pretty confident that even full police access to my hard disk would not produce enough evidence of any crime to get me convicted by a British jury and sentenced to thirty years in prison.

(A) there are very few crimes in the UK that would result in 30 years’ imprisonment, since our system is far far less punitive than that of the US.

(B) if Parliament passed a law declaring that each visit to crookedtimber.org would result in 1 year’s imprisonment to be served consecutively, you’d probably rack up 30 quite easily. It would be a preposterously unjust law, but law it would be. That’s rather the point.

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Rich Puchalsky 01.18.13 at 7:37 pm

Upthread I cited an actual quote from an actual defense attorney who’s dealt with the same prosecutors in question in the Swartz case. “In one case, I was told that if my client failed to enter a plea that day, the prosecutor would obtain a superseding indictment and add embarrassing pornography charges to my client’s computer crime case”. Maybe ajay is one of those people who’s never looked at porn. Or how about taxes? If someone went over your income taxes for the last decade, would they find that you always filled them out exactly right? Or, for what’s more common for the people who have the most contact with the criminal justice system, could they search where ajay lives and find no recreational drugs at all? None from any of his/her family, roommates, friends etc.? Remember, that includes cold medicine.

None of us are safe, all of us live on sufferance and luck. I don’t find that to be nihilistic at all, just a true description of our society.

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Andrew F. 01.18.13 at 8:18 pm

I understand why you may think we all live on sufferance and luck, but legally at least, that’s not the case. There are vague laws, and clearly there are overly punitive laws, but for the most part, imho, the laws constrain the government and provide reasonable predictability as to its actions (this is emphatically not to deny that government employees have opportunities to act outside those constraints, and that some do).

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Tim Wilkinson 01.18.13 at 8:23 pm

But that’s a matter of degree, and to the extent that this isn’t recognised, neither is the possibility of trying to reduce that degree.

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Tim Wilkinson 01.18.13 at 8:25 pm

(that addressed to Rich)

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Barry 01.18.13 at 8:45 pm

Andrew: “There are vague laws, and clearly there are overly punitive laws, …”

And that’s not enough?

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Rich Puchalsky 01.18.13 at 9:28 pm

I’d be more sympathetic to arguments that the system mostly works if the U.S. didn’t have the highest (known) incarceration rate of any country in the world. I’m not just talking about anecdata, but about statistics. People have this inculcated, propagandistic feeling that the U.S. may have some problems but its legal system is really better than that of a one-party state dictatorship like China, but really, it’s not. They don’t arbitrarily imprison as high a percentage of their population as we do. How much of a matter of degree are we supposed to be talking about? We lock up a 6 times higher percentage of our population than China does.

Or maybe that’s not supposed to be arbitrary, and we have six times the number of people who deserve to be locked up. You could make that argument, if you wanted.

So, getting back to Aaron Swartz, what would have happened if the government hadn’t had the law they got him with? Well, they searched his stuff, and they would have found something else. We’d all be talking about whether he was really guilty of, I don’t know, some financial problem among his various nonprofits and income sources. And it would be equally not important in terms of what was actually going on.

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Salient 01.18.13 at 9:50 pm

Yeah, I am pretty confident that even full police access to my hard disk would not produce enough evidence of any crime to get me convicted by a British jury and sentenced to thirty years in prison. Good grief, what do you think I do in my spare time?

But WTF, ajay, we’re talking narrowly about the insane U.S. law (or maybe the insane U.S. interpretation of the sane law). If your point is simply that the comparable British law is comparatively sane, okay. But that’s really a dodge, dude. You know we’re talking about American law as applied to American citizens. (And that’s more about bringing excessive charges as an intimidation tactic, than about securing convictions. Granted, you weren’t the person who emphasized convictions, but we should walk that back — I’ve had two acquaintances targeted with IP/Internet charges, and neither case would have resulted in conviction. The point is to threaten you with impoverishment; in both cases, the PA carefully computed the cost of weathering a lengthy trial and presented this information to the defendant as part of their plea bargain discussion. It’s a reliable way to get someone to accept a guilty plea with fines and probation.)

So let’s envision American Ajay. Did he ever save a wallpaper/background picture from the Internet on his computer without checking the license and ensuring you have the right to display it? You know that technically you can get arrested for that in America, right? That using it as your background is technically an instance of public display, the same category as projecting it onto a theater screen for show? And did you know the value of the property–the property that American Ajay stole, by saving it; the property that American Ajay destroyed the value of, by displaying it–is named unilaterally by its owner as the price at which they’d transfer all their rights to it, meaning that a single picture file could be considered a theft of $100,000? (I vaguely remember a case in which the court-identified value of the intellectual property was $220,000 for seven files, admittedly only memorable because 22/7 approximates pi. You can look around on your own for plenty of cases where each file obtained without securing rights is valued at tens of thousands of dollars. The IRAA is not shy about promoting this.)

Has hypothetical American Ajay ever used Google Image Search to obtain an image, clicking through to get the file without visiting the hosting site and ascribing to their terms of service? Are you sure that the entity hosting the image had secured the right to do so, as well as the right to transfer rights to you? (Obtaining an image from an entity that is not entitled to transfer it to you is obtaining stolen property.)

Most disgusting of all — I really can’t imagine the horror — has American Ajay ever emailed a picture to someone else that he had obtained via the Internet, without having secured the rights to do so? That’s a multi-decades jailable offense if there ever was one, especially if it was emailed to lots of people.

Please forgive some amount of sarcastic exaggeration, in what’s above — it’s somewhat unavoidable, because there’s so much uncharted territory, and because the interests making full use of these powers change rapidly over time. What’s astonishing today is commonplace yesterday, or vice versa. And obviously these laws, in their breathtakingly absurd full-force wait-wut-it-can’t-possibly-mean-that prosecutorial implementations, are only brought to bear on very, very few people. It is emphatically not a coincidence that those very, very few people are either (1) explicitly identified as people to be made example of or (2) are noteworthy advocates against exactly these excesses of American intellectual property law.

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Salient 01.18.13 at 9:58 pm

Oh and that reminds me, random protip — if you [are American and] look for an image via Google Image Search and discover one that is hosted by Photobucket, do not click it, do not save it, and do not ‘mouse over’ it if your computer/google is set to automatically enlarge images on mouseover. And for the love of what is good in the world, do not do not do not email the picture to another person, institution, or mailing list. Doing so without securing the right to do so from Photobucket is a terms of service violation and a breach of property rights. In particular, mouseover enlargement counts as ‘downloading’ the image, even though there’s a pretty stark difference from a user point of view. (Hopefully google will be quick about adapting their functionality and conveying the details to chillingeffects.org, but FFS be careful in the meantime. So far they’ve changed what happens on a click-through, but not on a mouseover.)

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SC 01.18.13 at 11:04 pm

158
“The point is that we all break the law in a dozen different ways just by going about our lives.”

Yup. However, I’m not sure that’s unique to, say, just using your laptop. Jaywalking, for example, is illegal, common, rarely prosecuted, and sometimes abused. The problem with recent laws governing internet/computer/copyright/terror/information is that the penalties can be severe and the prosecution is almost always abusive.

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bianca steele 01.18.13 at 11:21 pm

There is, it seems to me, an enormous difference between the illegality of jaywalking, on the one hand, and lawyers’ and legislators’ seriously considering whether caches should be illegal because Hollywood feels the whole “data on the desktop” thing is disrespectful of their property rights from square one, on the other. But I suppose Rich would say it doesn’t matter because we’re all already on sufferance and (in the good old lefty tradition) trying to fight individual unjust laws that after all only affect middle class people is a waste of time.

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Sebastian H 01.19.13 at 12:01 am

You should be reading Radley Balko on criminal justice anyway, but if you haven’t been, he has an excellent post on the broad direction of problems in the US system here.

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Rich Puchalsky 01.19.13 at 1:07 am

I didn’t say that it would be a waste of time to fight individual unjust laws. If people won, any victory is a victory. But the main problem with what happened to Swartz, in my opinion, involved prosecutorial overreach, and that will not go away if the CFAA does.

Radley Balko’s article, linked to above, makes the same points that I did, more coherently and expertly than I did. Here’s something I hadn’t known: “The civil libertarian and defense attorney Harvey Silverglate has argued that most Americans now unknowingly now commit about three felonies per day.” And ignorance of the law is no defense.

So we’re all guilty. All that separates those of us in prison from those not is who has annoyed a prosecutor.

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Henry Farrell 01.19.13 at 3:20 am

This response to Orin Kerr is worth reading.

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John Quiggin 01.19.13 at 4:15 am

@Henry This point struck me particularly when I read Kerr’s piece

Orin suggests that we must find a punishment sufficiently harsh to deter such behavior, presumably a stronger punishment precisely because of the idealism than that applied to the average Holmesian bad man. (One shudders to think of what would happen had this theory of prosecution been applied to Martin Luther King or Rosa Parks. What would it have taken to stop them personally from breaking the law?)

and I’m glad to see it emphasized in James Boyle’s response.

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John Quiggin 01.19.13 at 4:23 am

Ajay’s location in the UK (I assume) won’t help him unless he can organize a large-scale public campaign against extradition, preferably with the support of the rightwing press

http://www.dailymail.co.uk/news/article-2218872/Gary-McKinnon-extradition-US-outrage-hacker-wont-American-authorities.html

The US government claims the power to indict and try anyone in the world for computer crimes, not to mention the unlimited power to seize or assassinate any non-US resident for any reason it sees fit. Best to rely on the fact that, as someone who regularly backs the US state on issues of this kind, ajay is unlikely to be a target.

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Harold 01.19.13 at 5:13 am

Someone who might possibly possess superior intelligence and the ability to utilize moral suasion must be neutralized in the bud to forestall the emergence of a popular (i.e., populist) leader.

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Sebastian H 01.19.13 at 9:21 am

I want to push back, a little, on the characterization of Orin as some kind of apologist. He doesn’t agree with me entirely, but he does seen to think that the laws in question are to broad, and that prosecutorial powers in general are to reaching. He is exactly the kind of person we need if we are going to get anything done about this. Being dismissive is missing out on opportunities. Can’t we disagree but include? Mormons, evangelicals and Muslims don’t get along that well but cooperate on abortion. Can’t we learn from that?

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Tim Wilkinson 01.19.13 at 10:31 am

But I don’t think anyone is suggesting that Kerr be excluded from making helpful contributions to anything.

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bianca steele 01.19.13 at 3:17 pm

So on the one hand, if I have this correct, there’s Silverglate, who apparently believes things are illegal if someone, once, prosecuted someone else for them, even if they were acquitted; and on the other hand, there’s Kerr, who believes things are NOT illegal even if the statute includes them, if common sense would tell the prosecutors not to pursue them. (I haven’t gone back and re-read Kerr’s piece, and anyway, if I got that wrong, I’ll just back off and claim I was using “Silverglate” and “Kerr” as names for general tendencies, good enough for a comment box.) Kerr’s theory is consoling, while Silverglate’s is helpful for overzealous prosecutors and lazy defense attorneys, and I suppose would at least encourage people to try hard to keep their noses clean, which would be largely beneficial for society.

And there’s Puchalsky, who wants to keep turning the discussion to a claim that the Government holds that we’re all guilty, and what this means, for whose purposes both strands of the argument are convenient.

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bob mcmanus 01.19.13 at 3:42 pm

And there’s Puchalsky, who wants to keep turning the discussion to a claim that the Government holds that we’re all guilty

We are not all guilty, not at all. We are all subjects, abject, the ruled not the rulers, and at this time this must be made overt and public. Power has become property, you don’t own any of it, they are leasing it, licensing it, letting you use it under terms and conditions. This includes your body and your mental production.

abu Ghraib and Aaron Swartz. The message has been sent.

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Rich Puchalsky 01.19.13 at 4:07 pm

bianca, I don’t mean to flame, but I think that you have essentially all of your characterizations wrong. Even attaching general tendencies to your names, you have lawyerly general tendencies saying things that lawyers very rarely say. First of all, something is illegal if someone was prosecuted for it, unless the acquittal happened in such a way as to discredit that interpretation of the law. An acquittal could be for many other reasons. Second, I don’t know of any lawyer who will say that something is not illegal even if a statute includes it if common sense would tell a prosecutor not to pursue it. In that case, it’s still illegal, you’re just depending on the common sense, ie. the sufferance, of whatever prosecutor you happen to encounter not to charge you with it.

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Rich Puchalsky 01.19.13 at 4:40 pm

“Orin suggests that we must find a punishment sufficiently harsh to deter such behavior, presumably a stronger punishment precisely because of the idealism than that applied to the average Holmesian bad man. (One shudders to think of what would happen had this theory of prosecution been applied to Martin Luther King or Rosa Parks. What would it have taken to stop them personally from breaking the law?”

It’s good that this was mentioned, but this is what always happens. The people currently in jail in the Pacific Northwest for not answering Grand Jury questions aren’t there because they’ve been charged with any crime. They are there in order to coerce them to answer questions, nothing more. For that matter, I find the whole sentiment quoted above to be a bit too flattering to the legal profession. Of course Orin Kerr’s “special deterrence” was used on MLK Jr. when he was arrested. He was in jail for only 16 days because, as wiki says, “King’s arrest attracted national attention, including that of corporate officers of retail chains with stores in downtown Birmingham. After King’s arrest, the chains’ profits began to erode. National business owners pressed the Kennedy administration to intervene. King was released on April 20, 1963.” If it had been up to the legal system, special deterrence would have kept him there indefinitely.

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bianca steele 01.19.13 at 5:52 pm

Rich,
I don’t know what your point is supposed to be.

The WSJ review of Silverglate’s book describes a case that the book describes, in which an ISP operator was prosecuted on wiretap laws because the e-mail functions of an ISP includes the software making copies of messages (which no human ever looks at). The case went to trial and was dismissed, possibly on appeal, I don’t remember. If this is supposed to be one of those “everybody commits three felonies daily” examples, the conclusion to be drawn is that operating an ISP with a store-and-forward e-mail function really does constitute wiretapping. In other words, the fact that the first review of the prosecutor’s actions concluded that he had untenable ideas about computers, including whether and how the law should treat the internals of computer software differently from the internals of “physical” things, means nothing. The prosecutor was right to say it was a felony.

I hear the voice of the seventy-year-old authoritarian, and the gen-y smart-aleck contrarian, grinning and saying “yes it really is illegal,” and I suspect the long-historied idea that there is something inherently immoral about computers, even (or especially) when they’re smaller than mainframes and involve direct Internet connections. I hear an assumption that “copy” has some quasi-platonic objective reality that wouldn’t be affected by whether anyone looked at the copy or not, or whether the copy only had reality as voltages inside a microscopic piece of sand. On the hand, I hear Orin Kerr’s belief that discretion could be formalized using law-review articles and Supreme Court arguments. I don’t hear a genuine or substantive attempt to figure out how the law should handle computer software, or even a real belief that it could be possible.

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Rich Puchalsky 01.19.13 at 6:26 pm

My point is that getting involved in the details of how we commit felonies, as Aaron Swartz may have, does not really solve the problem of people like Aaron Swartz being destroyed by the system. That problem really has nothing to do with computer software or computer files. The problem isn’t even really about criminal behavior. The problem is that prosecutors destroy people and can always find some arbitrary reason to do so if one of them wants to. And they are socialized — if you take the trouble to read Kerr’s piece — to think that this destruction is in fact their duty, that the proper response to someone doing something you don’t like or that important businesses don’t like is to use whatever legal punishment seem likely to deter them from doing it again.

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straightwood 01.19.13 at 10:08 pm

The vast grant of power to government to “keep us safe” after 9/11 has resulted in a sharp reduction of civil liberties in the US. Daniel Ellsberg has said that the illegal measures taken against him during the Nixon administration are all legal now. The issue before us now is how to roll back this unreasonable aggrandizement of government power to spy, prosecute, and imprison, not how to justify the treatment of accused “criminals” like Aaron Swartz.

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JW Mason 01.20.13 at 3:39 am

Orin suggests that we must find a punishment sufficiently harsh to deter such behavior, presumably a stronger punishment precisely because of the idealism than that applied to the average Holmesian bad man.

Like Boyle and John Q., I also found that part of Kerr’s argument horrifying. Is it established doctrine among prosecutors that the severity of punishment should be whatever it takes to compel obedience? Think about the implications — never mind civil disobedience, by Kerr’s logic, if someone steals to feed their starving family, they should be punished *more* harshly for that reason. The punishment needs to hurt them even more than seeing their kids go hungry would.

Can Kerr really believe this?

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Rich Puchalsky 01.20.13 at 6:09 am

Here’s what Kerr writes about it:
“Given that commitment, I think one appropriate benchmark for the proper punishment is based on what legal scholars call “special deterrence.” In plain English, the question is this: What is the minimum punishment that was needed to persuade Swartz not to do this sort of thing in the future? To my mind, the answer to that question provides a reasonable benchmark to determine the proper punishment. “

Classically, locking people up in prison is justified as retribution, incapacitation, deterrence, or rehabilitation. It has to be recognized that this concept of deterrence is more morally outrageous than basing punishments on revenge. If someone commits a serious crime, and gets a long prison sentence, people tend to think that is just. But deterrence in which the punishment is based on stopping people from doing it again is fundamentally unrelated to the seriousness of the crime. It’s only related to effectiveness of social control.

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Harold 01.20.13 at 6:45 am

Severity of punishment is simply a reversion to barbarism and has long been known not to have a deterrent effect — contrary to the assumptions offered here.

wiki:

Research has shown that increasing the severity of a punishment does not have much effect on crime, while increasing the certainty of punishment does have a deterrent effect. “Clearly, enhancing the severity of punishment will have little impact on people who do not believe they will be apprehended for their actions.”.

The use of ‘heavy’ punishment has been described as “the least effective and least fair principle of sentencing”. A study by a Canadian criminologist Paul Gendreau brought together the results of 50 different studies of the deterrent effect of imprisonment involving over 300,000 offenders. The report said: “None of the analyses found imprisonment reduced recidivism. The recidivism rate for offenders who were imprisoned as opposed to given a community sanction was similar. In addition, longer sentences were not associated with reduced recidivism. In fact the opposite was found. Longer sentences were associated with a 3% increase in recidivism. This finding suggests some support for the theory that prison may serve as a ‘school for crime’ for some offenders”.

A 2000 study by Uri Gneezy and Aldo Rustichini, A Fine Is a Price, has shown that introducing a fine for a previously unfined behavior may increase, rather than decrease, the unwanted behavior. This happens as the fine replaces a previous set of moral or ethical norms, and if it is low enough, it is going to be easier to overcome than the non-monetary criticism was. In other words, putting a price on something previously not on a market changes its perception drastically, and on occasion it can change it contradictory to what a deterrence theory would predict.

I agree with Richard Stallman that not only the administrators of MIT but also certain lawyers ought to be groveling on their knees, begging forgiveness.

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Matt 01.20.13 at 7:28 am

Harold- for what it’s worth, the study you mention is about general deterrence, while Kerr was talking about specific deterrence. That’s the difference between deterring a particular person or people in general. In this case, Swartz knew he’d be punished and the question that Kerr suggests is relevant is how much punishment (out of the possible amount authorized by the statute) would be the right amount needed to prevent him from doing the same or a similar thing again. Given that the probability of punish was clearly high, the relevant issue was Swartz’s motivation to act, which is just what he looked at. The bit on fines also isn’t really relevant for this issue.

J.W. Mason has a somewhat more interesting question, but I don’t think it necessarily cuts the way he thinks. Suppose I steal something out of need. How much punishment is necessary to deter me from doing it again? Perhaps none, or little. I didn’t steal the thing because of disrespect for the law, lack of respect for the rights of others, etc., but because of a situation that, hopefully, won’t come up again. Again, the question Kerr is looking at here is special deterrence, not general. So, that analysis is particularized. It’s not a clean-cut issue, but at the least, I think that when you’re clear on what Kerr is getting at hear, it doesn’t have the implications suggested by these comments.

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Mao Cheng Ji 01.20.13 at 7:54 am

“Clearly, enhancing the severity of punishment will have little impact on people who do not believe they will be apprehended for their actions.”

Yes, clearly. However, this only applies to “the average Holmesian bad man”; the idealists, typically, are not planning to get away with it. So, logically, as Kerr suggests, from heightened political repression you might indeed expect higher social stability. For a while. Up to the point of mass martyrdom: self-immolations, suicide bombings, and armed insurgency. But even then, he’d still have options: death squads and barbed wire.

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JW Mason 01.20.13 at 8:11 am

Matt, you’re missing the point. Perhaps on some planets poverty is only ever a passing misfortune, but here on this one it seems to be a permanent condition for many people. And if it is the case that these poor people are more likely to steal, from necessity, then by your logic they should face steeper penalties for theft, simply because they are poor. That’s required by your theory of deterrence, but is abhorrent to my (and I hope most people’s) ideas of justice.

You and Kerr seem to have lost sight of the idea that criminal law needs to be just, and not just to compel obedience.

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Tim Wilkinson 01.20.13 at 9:39 am

This argument about special deterrence as a basis for determining sentence is highly dubious, bordering on the demented. What is being described is not ‘what sentence will prevent reoffending’, but either ‘what sentence would, if predicted, have deterred’ or ‘what sentence will, if promised next time, deter’. Neither of these is relevant to what the current sentence should be, unless by some further inference – and I’m having trouble trying to formulate reasoning that a convicted person might go through to get there, still less a rule-based (esp. reasonably simple, promulgable) way of doing this. The idea is stupid as well as providing a cover for cruelty and injustice, and since Kerr seems too endorse it without reservation, well..

If a severe but unpredictable punishment is supposed to prevent reoffending in the future, that is not through rational meand like deterrence, but through some kind of ‘short sharp shock’ brutalistic method of instilling obedience.

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Andrew F. 01.20.13 at 1:33 pm

Kerr is obviously assuming that Aaron’s conduct shouldn’t be repeated – that while the law should be modified, the conduct in question here falls within the ambit of a law that is not morally offensive and the violation of which can cause significant harm.

The Rosa Parks analogy is inapposite here, since the law in that case was unjust and the conduct didn’t pose significant harm. Intellectual property law is not Jim Crow, and destroying a non-profit’s IP is not the same as refusing to sit in the back of the bus.

Tim, a federal prosecution that insists on a felony conviction and some jail time is a good signal that the federal government takes the conduct seriously, and that therefore a repeat offense would be greeted by a more punitive stance. The possibility of a repeat offense is a large part of why criminal history, character, and remorse can be important factors in everything from a prosecutor’s plea offer to a judge’s sentencing to a consideration for a pardon.

Personally, I think that the prosecution was considering deterrence in a much broader sense – that the specific prosecution in this case is one instance of a general policy that “hacktivism” won’t be given special treatment if violates the law. And having made that decision, they pursued this case in their ordinary fashion.

Worth mentioning that one assumption in the US system is that the government, when engaging with a defense attorney, is bargaining with a sophisticated adversary, and not simply a frightened defendant. To some extent, this is where the “tough guy” attitude Henry referenced earlier among prosecutors derives from (although, the exercise of having to shield oneself from the myriad special considerations that each defendant will claim, and from the dramatic, life-altering consequences of just the decision to initiate prosecution, much less pursue it to a sentence, may play a much larger role). It’s also why the initial bargaining position of the prosecution isn’t necessarily where the prosecution wants to end, or, at least, thinks they’ll end.

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Rich Puchalsky 01.20.13 at 2:59 pm

“Kerr is obviously assuming that Aaron’s conduct shouldn’t be repeated […] Intellectual property law is not Jim Crow, and destroying a non-profit’s IP is not the same as refusing to sit in the back of the bus.”

Nonsense. Here’s what Kerr wrote: “The evidence suggests to me that this was not a one-time mistake or an impulsive decision. Rather, Swartz was acting very deliberately with a quite far-reaching goal: he was intentionally breaking the law in the short run to achieve a long-run goal of nullifying the protections of a set of democratically-enacted laws that he opposed.” Rosa Parks intentionally broke democratically-enacted laws, and so did MLK Jr. Many white people of the time felt quite strongly that the laws that they broke were protective. The only difference is an appeal to “reasonableness” or “common sense” — in other words, the prosecutor as an authoritarian who can choose to imprison or tolerate based on his or her feelings about whether the crime should be punished or not.

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Matt 01.20.13 at 3:20 pm

You’re misunderstanding me, JW Mason (and, I think, Kerr, though I can’t say for sure.) (I’ll add that the theory of punishment is a area on work on, so not something I need explained to me. I was also not expounding my own views at all.) The part that you’re missing in Kerr’s account is that, first the prosecutor functions within set bounds of penalties. (If things were up to me, the set bounds would be narrow, and much, much lower across the board.) Much of the issue you’re worried about is best dealt with via a low bound an a narrow bound. The question then becomes, _in this particular case_, what penalty is necessary? This, of course, also leaves room for mitigating factors to be considered, if one thinks that’s a good idea. That deals with the other main part of your objection. (Kerr didn’t say this was the only factor to be considered, and did mention some mitigating factors- that Swartz didn’t have a criminal record.) (My thought, and perhaps Kerr’s, though I don’t want to speak for him, is that most of the things said in Swartz’s favor in these posts, while true, are not properly mitigating factors in a criminal case.) But, I think a more plausible reading, and a clearer view of the process, doesn’t commit Kerr to the view you suggest.

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Rich Puchalsky 01.20.13 at 3:24 pm

And I’m sorry to double post, but I should add that in another 50 years, the idea that someone could be sent to jail for copying a database of published scientific papers is going to look as obviously unjust to people as the Montgomery bus ordinance does now. It’s easy to look back and dismiss the laws of another time, now that activists and movements have done the hard work of discrediting them. But this kind of dismissal only serves to protect the injustices of our time.

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Tim Wilkinson 01.20.13 at 3:32 pm

Andrew F: a federal prosecution that insists on a felony conviction and some jail time is a good signal that the federal government takes the conduct seriously, and that therefore a repeat offense would be greeted by a more punitive stance

Broadcasting ‘signals’ about how punitive the system is not the same thing as this ‘special deterrence’ business. This area seems to be one especially rife with mushy thinking and confusion (e.g. Matt stating that a study into the effect of punishment on recidivism is about general and not specific deterrence.)

The possibility of a repeat offense is a large part of why criminal history, character, and remorse can be important factors No, the likelihood of a repeat offence is something which might be inferred from character, but such an inference is not part of the justification for a punishment, which is (on the most charitable interpretation of actual practice) ultimately general deterrence.

Character is relevant because a person who acted out of character is (a) less deserving of punishment (the aim of general deterrence is obviously limited by considerations of proportionality; illustrative examples left as an exercise), and (b) a member of a one of those reasonably clearly defined classes of 0ffender (those acting out of character, where this is inchoately understood to mean that their behaviour doesn’t exhibit ordinary means-end rationality) that can be excused (full) punishment without undermining the general deterrent function of the universal threats embodied in prospectively-promulgated penal provisions. Other such classes of offender are the outright insane, those otherwise lacking mens rea, those who merely prepare and don’t attempt.

(If one goes deep enough into constructive interpretation of the practice of criminal law, (a) and (b) are likely to come out as quite intimately connected, but happily I needn’t try and go into that.)

Also, destroying a non-profit’s IP?

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JW Mason 01.20.13 at 4:24 pm

he part that you’re missing in Kerr’s account is that, first the prosecutor functions within set bounds of penalties.

No, I’m not, because prosecutorial discretion has nothing to do with the issue here. Orin Kerr wrote:

it seems like Aaron was committed to a long-term plan to continue to engage in such conduct, including through unlawful means. In his view, this was not a one-off, or an impulsive decision. Rather, he felt that there was a moral imperative to violate laws that he saw as unjust. … Given that commitment, I think one appropriate benchmark for the proper punishment is based on what legal scholars call “special deterrence.” In plain English, the question is this: What is the minimum punishment that was needed to persuade Swartz not to do this sort of thing in the future?

Kerr is explicitly stating here that when someone violates a law out of a strongly held moral principle, they should be punished more harshly for that reason. I think that’s deranged. Whether this deranged principle is implemented by prosecutors, by judges, or is explicitly written into the law, has nothing to do with the issue. Frankly, it comes across as a deliberate effort to muddy the waters.

I’ll add that the theory of punishment is an area on work on

On the internet nobody knows you’re a dog.

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Sebastian H 01.20.13 at 4:35 pm

I’m not a fan of special deterrence as a punishment concept. It can lead to perverse outcomes, and much more quickly than edge cases from other theories of punishment. Retributive theories of punishment function better than deterrence theory when you focus on the individual level. Special deterrence ramps up quickly, while retribution is supposed to be measured to the severity of the offense. Retributive theories put a cap on relatively harmless legal offenses like this because retributive theories are where the idea of proportionality of the offense and the punishment are grounded.

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Harold 01.20.13 at 4:59 pm

Perhaps someone with expertise will come up with a study showing that s0-called “special deterrence” works differently and is more effective than ordinary deterrence. As far as I can see, the theory that severe punishments tailored to specific individuals (before usual punishments have been tried) constitute “special deterrence” and must of necessity be more severe, is just an unproven, immoral, and self-serving theory.

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Harold 01.20.13 at 5:14 pm

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Tim Wilkinson 01.20.13 at 6:12 pm

Harold – yes, cf 195, last para: If a severe but unpredictable punishment is supposed to prevent reoffending in the future, that is not through rational means like deterrence, but through some kind of ‘short sharp shock’ brutalistic method of instilling obedience.

The outright incoherence of the idea of special deterrence – as using a punishment (retrospective) to apply an incentive (prospective) – is encapsulated in Kerr’s What is the minimum punishment that was needed to persuade Swartz not to do this sort of thing in the future?. Certain kinds of ‘sanctions’ may be capable of altering poeple’s future offending – but that’s mostly going to be through reforming them (which is not best achieved by punitive measures), or by reducing their ability or opportunity to reoffend. Any deterrent impact of a punishment in an individual case is going to have to be, as Andrew F acknowledges, via some kind of ‘signal’.

That could be a signal about general sentencing practice. This: (*) implies that the system has failed to promulgate its threats; (*) does not justify unusually harsh punishment (*) is an unacceptably brutal way of conveying information and (*) is redundant given that in cases where this applies, the system is supposed to mandate the usual punishment anyway. And is not relevant to special deterrence.

Alternatively it could be a signal that the offender has been marked down for specially harsh punishment should they reoffend. This too is an unnecessarily brutal way of communicating – or as tub-thumping conservatives like to say with unsettling enthusiasm, ‘sending a message’ – even bearing in mind the supposed need not only to declare the intention, but also to credibly commit, to imposing such harsh punishment in future.

In fact, there are a number of other mechanisms that perform this function (in English law: conditional discharge; suspended sentences; probation; binding over to keep the peace) without requiring a completely realistic pre-enactment of such future punishment. There is also of course the practice of taking into account past offending when passing sentence. I think this is probably one of the things Sebastian has in mind: since the seriousness of past offending is generally read off from the severity of the sentence, an ordinary sentence for a first offense already indicates that cet par future offending will be dealt with more harshly; to ramp up the sentence for ‘signalling’ purposes means a kind of double-counting occurs whereby a second sentencing judge will be led to exaggerate the degree of ‘required’ punishment.

In theory, some mechanism could be introduced whereby judges attach notes to their sentencing decisions, explaining that part of the sentence imposed is, y’know, rhetorical and not meant to be taken literally (in some cases, probation services etc may provide this kind of input of course, but as pointed out this is nothing to do with ‘special deterrence’). But things don’t really work like that; for one thing, judges do not generally pass sentence on the basis of clear, consistent and widely agreed-on theories of punishment, or at least certainly not this weirdo doctrine of special deterrence.

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Bruce Wilder 01.20.13 at 6:16 pm

The legal and economic order under which Swartz was being persecuted (sic) is a novelty, and I presume that special deterrence is meant to have a wider audience than one recalcitrant individual. It isn’t that long ago that failing to profit from a violation of IP law was a defence against criminal charges. Legal prosecutions are political negotiations, and not just because of the decadence of the plea-bargaining system. The U.S. has become a significantly more authoritarian state since Reagan (it’s always since Reagan, isn’t it?), and now we are moving that authoritarianism into the neo-feudal realm, where certain privileged institutions, in unquestioned possession of arbitrary economic rents instituted by law, not nature, are authorized to use the criminal law to police the arrangements they dictate. Lawyers still dress these things up in the language of “contract”, but the “terms of service” under which an individual deals with a large corporation, whether a university, a pharmaceutical giant, a frakking oil prospector, a foreclosing bank, a credit card provider, a software or “content” publisher, has long since slipped from the territory of mutual agreement into dictation. An employer or a bank or any number of other corporations charging for services, their business model underpinned by overweening IP law, can legally change their “agreement” with you unilaterally, and, as a practical matter, without prior notice(!).

Schwartz was challenging that novel neo-feudal order. And, he was met with the heavy hand of the authoritarianism used to make that neo-feudal order the new normal.

Distracting us with the details of technical legal principles, focusing our attention on the tree bark, so that we fail to notice the shape and nature of the growing forest, is Orin Kerr’s service to that neo-feudal order he has worked tirelessly to promote and create.

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Harold 01.20.13 at 7:59 pm

According to Michael A. Foley in Arbitrary and Capricious: The Supreme Court, the Constitution, and the Death Penalty , p. 12. , “special deterrence” is a punishment reserved for convincted felons, which Aaron Swartz was not. http://books.google.com/books?id=vz8SEbbZfrgC&pg=PA12&dq=special+deterrence&hl=en&sa=X&ei=LTL8UOyTLoOm8QSTpoCQAg&ved=0CFkQ6AEwBzgK#v=onepage&q=special%20&f=false
Therefore, it is highly inappropriate even to mention this kind of deterrence in Swartz’s case as Orin Kerr, a law professor with a background in math and engineering who now styles himself an expert in Computer crime, now does.

According to an article in another book, Critical Issues In Crime and Justice, edited by Albert R. Roberts (also searchable on google books), the death penalty is in itself an instance of “special deterrence.”

As to how far we have come from any notion of justice or human rights associated with civilized nations, Res ipsa loquitur.

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LFC 01.20.13 at 8:50 pm

I don’t want to get into this discussion too much, esp since I only read the opening summary of Kerr’s post (the second one), but the passage quoted by JW Mason above does not say that (Mason’s words) “when someone violates a law out of a strongly held moral principle, they should be punished more harshly for that reason.”

All the quoted passage can be fairly read to say, at least as I read it, is that when someone evinces an intent to violate a law or laws repeatedly (as opposed to once), for whatever reason, it may take more to deter that person. I’m not defending Kerr’s post or the IP law in question, just making a comment about what Kerr is saying in that particular passage.

To repeat: I am not defending Kerr’s post. I glanced through Boyle’s post and what he said about sympathy seemed right to me.

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JW Mason 01.20.13 at 9:21 pm

People who want to read the passage in context can do so. I think that most will agree that my summary (or Boyle’s very similar one) is indeed fair.

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JW Mason 01.20.13 at 9:26 pm

I only read the opening summary of Kerr’s post (the second one)

I suggest that before you tell other people they are reading Kerr wrong, you explore the possibility of reading his posts yourself. They are extraordinarily vile.

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LFC 01.20.13 at 9:43 pm

@ JW Mason
You quoted a passage and said that it said X. I was just saying I didn’t read the passage that way. However, perhaps in the context of the full post I would read the passage differently.

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Rich Puchalsky 01.20.13 at 10:22 pm

“when someone evinces an intent to violate a law or laws repeatedly (as opposed to once), for whatever reason, it may take more to deter that person”

In practice, that’s saying the same thing as what JW Mason wrote. Plain criminals, when caught, generally try to say that they have reformed and won’t do it again. People who break laws for moral reasons are generally the only ones who obviously plan to do the crime again.

And people with long criminal records who the justice system believes will go on to re-commit a pattern of serious crimes tend to get locked up under theories of incapacitation, not special deterrence. Of course, Kerr can’t use incapacitation as a reason in this case because it would sound even worse for him to say that Swartz would have to be locked up for decades so he wouldn’t be able to do his copying again.

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Person of Choler 01.20.13 at 10:41 pm

Tell it to Eric Holder. You whooped for his boss so you might have some influence with him.

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Yarrow 01.21.13 at 2:57 am

213: “Tell it to Eric Holder. You whooped for his boss”, apparently in reply to Rich Puchalsky at 212.

You’re accusing Rich Puchalsky of whooping for Obama. The mind boggles.

New in town, are you?

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John Quiggin 01.21.13 at 3:12 am

“when someone evinces an intent to violate a law or laws repeatedly (as opposed to once), for whatever reason, it may take more to deter that person”

On this argument, there is no need to prove that the person has actually committed the offence even once. Intent is sufficient to justify special deterrence.

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js. 01.21.13 at 5:52 am

I’ll also cop to only having read the summary of Kerr’s second post. But, other than the bizarro-world special deterrence, this is what really jumped out at me:

1. “When someone engages in civil disobedience and intentionally violates a criminal law to achieve such an anti-democratic policy goal through unlawful means — and when there are indications in both words and deeds that he will continue to do so — it is proper for the criminal law to impose a punishment under the law that the individual intentionally violated.” (emph. added–js.)

Umm, getting over the speechlessness aspect, Boyle is absolutely right about the MLK/Rosa parks analogy. Given the implicit construal of a “democratic policy”, they were obviously pursuing an anti-democratic agenda. What’s really jarring (and galling), though, is the blithe assertion of the premise that Swartz was pursuing an “anti-democratic policy goal”.

(Well, also the bit about the “if you want to end these tactics, don’t just complain about the Swartz case” blah blah blah, but seriously, who the fuck is doing that? It basically seems like a way to railroad genuine complaints about various aspects of the prosecutorial system that, for understandable reasons, suddenly got a lot more traction when someone like Swartz got trapped in and by them. (Cf. Newtown, Conn., and gun control.))

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anon/portly 01.21.13 at 6:34 am

JW Mason:

Kerr is explicitly stating here that when someone violates a law out of a strongly held moral principle, they should be punished more harshly for that reason.

My reading is that the words “strongly held moral principle” should more accurately read “desire to nullify the law.” (I think someone characterizing Kerr’s views as “extraordinarily vile” has a special duty to render them accurately).

Also “should” I think more accurately would be “could,” but this is perhaps a quibble.

Kerr:

And critically, he didn’t want to violate those laws in a symbolic way just to bring attention to laws he saw as unjust. Swartz was not acting in the grand tradition of civil disobedience in which one willingly draws punishment to bring attention to the unjustness of the law. In his own words, he didn’t want to “just send a strong message opposing the privatization of knowledge.” Rather, he wanted to change the facts on the ground to make his preferred world a fait accompli. That is, he wanted to make the laws unenforceable, winning the debate unilaterally outside of Congress. In his words, he wanted to act so that the democratically-enacted laws that allowed privatization of knowledge would become “a thing of the past.”

Given that commitment, I think one appropriate benchmark for the proper punishment is based on what legal scholars call “special deterrence.” In plain English, the question is this: What is the minimum punishment that was needed to persuade Swartz not to do this sort of thing in the future? To my mind, the answer to that question provides a reasonable benchmark to determine the proper punishment. By all accounts, Swartz was a tremendously brilliant guy with an incredibly bright future. His death is a tremendous tragedy. But had he lived, we would all have been better off with a future in which Swartz directed his incredible talents to pursuing his ideas through lawful means rather than unlawful means. Many people — and many readers of this post in particular — share Swartz’s sense of good social policy. But we live in a democracy. We might not like all the rules in a democracy, but the way to change those rules is through democratic change. Swartz could have tried to be punished under the law to bring attention to the law in the hope of changing it through the democratic process. But instead he had something anti-democratic in mind. I think it’s pretty clear that in a democratic system, that kind of anti-democratic cause is something that we should disfavor. You can break the law to draw punishment, but the ultimate goal of traditional civil disobedience is achieving change through the legal means of democracy. Swartz had something else in mind, it seems; changing the law de facto by his unilateral action. Given the importance of the difference, a punishment that was the minimum sufficient to persuade Swartz to follow the law in the future seems appropriate.

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Matt 01.21.13 at 8:25 am

I don’t understand the characterization of giving away a copy of the JSTOR archive as destroying their business. Not that Aaron ever redistributed JSTOR in the first place. The customers for electronic journals are overwhelmingly institutions, not individuals. Librarians decide what to subscribe to. Articles purchased by non-subscribers on a retail basis represent a minute fraction of the revenue for Elsevier and ACS, and presumably JSTOR too. Universities aren’t going to stop subscribing through paid channels when there’s a pirate version floating around by bittorrent. Don’t worry, electronic piracy can’t endanger the ludicrous pricing schemes of academic journals.

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Andrew F. 01.21.13 at 8:48 am

Tim, you write: Broadcasting ‘signals’ about how punitive the system is not the same thing as this ‘special deterrence’ business. This area seems to be one especially rife with mushy thinking and confusion (e.g. Matt stating that a study into the effect of punishment on recidivism is about general and not specific deterrence.)

I was talking specifically about signalling to the defendant, which would be an instance of “special deterrence.” But a signal that is communicated to defendant and others would be a component of both “special deterrence” and “general deterrence.”

As to character, criminal history, and remorse considerations, I said that a large part of the reason why these are considered relevant is because of the light they (are thought to) shed on the probability of repeat offenses. Certainly, these factors are also important because of their role in broadly held theories of retributive justice.

Generally, we’d want to look at 18 USC 3553(a)(2) and its interpretation, which sets forth the purposes of criminal sentences (encapsulating retributive justice and deterrence, both general and special):

(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

Rich, the question of a prosecutor’s moral obligations when the law to be enforced is unjust isn’t considered in Kerr’s posts, and is obviously a deep and complex issue. I think it’s unreasonable to assume that the view he expressed about the appropriate reasoning in this case would apply without alteration or consideration in instances where there are additional relevant factors. Imho, the Rosa Parks analogy is a red herring at best.

I understand your view that one day it may seem obviously ethical to access a private database, made available only in a restricted way to those paying a subscription, and copy that database in order to distribute the database freely to everyone, obviating any need to pay the owners of that private database a subscription fee. From my perspective, I’m much more dubious; the particular portion and interpretation of the law that forbids the conduct as alleged doesn’t seem unjust.

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Bruce Wilder 01.21.13 at 9:03 am

anon/portly @ 217

I think Kerr is broadly correct in outlining Swartz’s ambitions, but wrong in how he characterizes those ambitions. Kerr’s vision is a remarkably tendentitious and authoritarian view for a supposed libertarian; Kerr’s fans among liberals might take note. Kerr is wrong to suggest that Swartz’s actions are necessarily politically illegitimate or anti-democratic, just because they don’t fulfill Kerr’s peculiar, jerry-rigged prescription for proper civil disobedience. And, his invocation of “special deterrence” to justify prosecutorial persecution is outrageous. The most remarkable thing to me is the failure to acknowledge Swartz’s martyrdom was a sacrifice for a political cause. But, the authoritarianism of Kerr’s view is what should frighten all of us.

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Tim Wilkinson 01.21.13 at 12:13 pm

Andrew F – yes, my compressed statement was intended to point out that any such signals are of their nature ‘broadcasted'; and that this is why deterrence justifies punishment: it demonstrates to everyone that the prior threats are not empty, and can imply further threats about how sentencing will be done: punishing more harshly when the offence includes aggravating feature x could be construed as sending the signal ‘do not add aggravating feature x to your offending’, though if there really were a sentencing policy involved, one would expect that some kind of verbal communication would be broadcast – sentencing guidelines, a new offence with a higher tariff etc. But the message ‘do not be especially hard to deter’ is not a sensible one to broadcast.

On the idea of using sentencing as a means of communicating with the convicted defendant who is standing right there in court, see #205, pa 4-5. There is no reason to use a harsher sentence just to warn a defendant about future sentences.

You provide a list of the four standard justifications for state action against offenders: retribution, deterrence, prevention, reform. It doesn’t in fact mention special ‘deterrence’ under (B), and in fact if special ‘deterrence’ were to ‘persuade’, as Kerr puts it, it would not be via the incentive effect of threat of punishment but some kind of brutalistic, ‘only language they understand’ mechanism akin to aversive conditioning or breaking a person’s spirit. That wretched practice would have to go under one of the two heads (C: prevention, or D: reform) that have little to do with punishment per se at all.

Of course a huge amount of research has been done which shows that punitive measures are ineffective at preventing recidivism. (It’s not my fault that those conducting this research sometimes present it as about ‘deterrence’ – that may be because 1. since it involves fairly clearly punitive measures, it’s not natural to consider it as an attempt at ‘reform'; 2. those involved may be aware of this special deterrence doctrine, and can explode it a fortiori, since if (e.g.) prison doesn’t reform at all, it doesn’t do so via so-called special deterrence 3. they want to do research into general deterrence, but that is extremely difficult.)

I give fair warning that any further dissent may be met with an extended discussion of Cohen, Elster and possibly Sobers on functional explanation and generality.

—-

I would point out Kerr’s studied use of ambiguous terms like ‘unlawful’, ‘protections’ and indeed ‘violating laws’ which blur the distinction between civil and criminal laws, and reiterate that it’s far from obvious that AS was committed to engaging in criminal conduct.

—-

(I like ‘jerry-rigged’ – a mental blip, presumably, but aptly combining ‘jerry-built’, ‘jury-rigging’, and ‘gerrymandered’.)

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Barry 01.21.13 at 12:19 pm

Bruce, Jim Henley once opinedthat Eugene Volokh’s attitude, except on the first and second amendments, was to strain mightily before ‘reluctantly’ coming to the conclusion that the State should get its way.

I have that feeling about the entire Volokh crew.

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Barry 01.21.13 at 12:21 pm

Andrew F, please note that the same arguments don’t seem to be used by these prosecutors (and by the DoJ) when the malefactors are of great wealth.

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LFC 01.21.13 at 2:49 pm

JQ 215
On this argument, there is no need to prove that the person has actually committed the offence even once. Intent is sufficient to justify special deterrence.

Yes, an oversight. I shd have said: “When a person has committed a particular offense and evinces…”

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Rich Puchalsky 01.21.13 at 4:52 pm

Andrew F: “I understand your view that one day it may seem obviously ethical to access a private database, made available only in a restricted way to those paying a subscription, and copy that database in order to distribute the database freely to everyone, obviating any need to pay the owners of that private database a subscription fee. From my perspective, I’m much more dubious; the particular portion and interpretation of the law that forbids the conduct as alleged doesn’t seem unjust.”

MLK Jr., 1967: “I am convinced that if we are to get on the right side of the world revolution, we as a nation must undergo a radical revolution of values. We must rapidly begin the shift from a thing-oriented society to a person-oriented society. When machines and computers, profit motives and property rights are considered more important than people, the giant triplets of racism, materialism, and militarism are incapable of being conquered.”

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Tim Wilkinson 01.21.13 at 7:07 pm

Which of course posed the question “what would it take to persuade MLK not to do this sort of thing in the future?”

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Harold 01.21.13 at 7:46 pm

“Special Deterrence” happened to MLK.

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Stephen 01.21.13 at 8:51 pm

Rich Puchalsky @225:
I share some of Andrew’s doubts. In particular, there is one problem about Mr Swartz’s actions that I have not seen discussed.

[preliminary disclaimer: like most others, I am saddened by the loss of such a bright talent, I feel pity for the great grief of his family and friends, I regard this whole sad business as additional proof (if any were needed) that the US system of criminal justice, or at any rate law, has egregious faults that are capable of drastic improvement.]

But: I don’t know what would have happened if Mr Swartz had succeeded in setting up a complete copy of the JSTOR archive. I would suppose that, given his published views, he would have wanted this copy, ASTOR, to be freely available to anyone who wanted to use it. At which point, to judge by my experience, many academic institutional administrators who care for nothing but their institution’s finances would soon cancel their institutional subscription and tell anyone distressed by that to link up to ASTOR.

One might argue that using ASTOR would be made illegal, and wouldn’t happen. If so, Mr Swartz’s friends might perhaps explain why creating, or taking steps to create ASTOR would be expected to be legal while using it would not.

But assuming free and legal use of ASTOR largely or entirely replaced use of JSTOR, and thereby caused the demise of JSTOR: would that be, even from Mr Swartz’s point of view, entirely a good thing? I can see that it would be if all the scholarly articles that have ever been written, or will be written, have already been digitised and made available by ASTOR; or will be equally and freely available when they are written. For all I know, that may in fact be so for the sort of studies that interested Mr Swartz. For many other fields of research and scholarship, it is not so. Therefore, by liberating – as he saw it – articles currently on JSTOR, he would have imprisoned many others that are not yet on JSTOR, but would without his actions become more or less free.

I have not, I repeat, seen anyone yet discuss this aspect.

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Rich Puchalsky 01.21.13 at 9:12 pm

Stephen, assuming that we’re going to look at this as a pragmatic problem of “what maximizes access”, there are all kinds of problems with how you’ve set this up.

1. If ASTOR is a one-time copy, then it’s an archive, but it (presumably) won’t be getting new submissions, unlike the ArXiv. If so, no administrator could cancel their institution’s subscription to JSTOR, because if they did, they would never get new articles. No university could function if its members couldn’t read new articles.

2. If, on the other hand, ASTOR got buy-in from the community of researchers so that people starting submitting all of their new work to it, there would be no need for JSTOR. If administrators cancelled subscriptions to JSTOR, no one would be losing anything.

3. It’s a straw man to say that it would only be a good thing “if all the scholarly articles that have ever been written, or will be written, have already been digitised and made available by ASTOR”: all scholarly articles are not available through JSTOR or any other single system.

4. Ideally, a database that presents these kinds of papers would present both old and new work. So if the community of people who actually generate the work ever want to stop the middlemen from charging people for it, they can coordinate to send their work to a new database. But they can’t completely switch unless someone puts the archive of their previous work into the new system.

You wanted to talk about this part of it, so I wrote you a reply, but I don’t think that the moral aspect can be dismissed. It’s ludicrous that “copying data” equals “destroying intellectual property” for academic papers, which ideally should be available to everyone. I am confident that in another couple of generations, people will look back on this as another barbarism of our time.

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Tim Wilkinson 01.21.13 at 9:52 pm

Partly redundant now given Rich’s comment, but FWIW:

Stephen – Either there would be remaining valuable ‘digitisation’ (are there any existing journals which do not publish digital copies?) or republication work potentially to be carried out by JSTOR as new articles reach the 6-year-old window (or whatever it is these days) or there wouldn’t. You seem to imply that there wouldn’t be, so institutional subscribers would not pay for subsequent JSTOR services, and instead risk being sued for profiting from hosting material in breach of copyright (it is a premise that there would still be copyright still owned by journal publishers, right?). But at the same time you suppose there would be, so this supposed demise of JSTOR would have ill-effects.

Perhaps your idea is that journal publishers would refuse to license JSTOR to use their old articles, and institutions would only subscribe to journals directly through the publisher. Phase 2 of the freeing of articles then commences, and those like AS having access to the journals start leaking those to ASTOR, just as people leak their review copies of films (screeners) to the Pirate Bay. ASTOR being dependent on institutional access, not all institutions can cancel their subscription to a journal or the information will be unavailable. If they do we are in crisis territory and the real problem – the corporate parasites who oligopolise journal publication – has to be addressed. If they don’t, the articles start to be made available via ASTOR. If enough institutions are willing to rely on ASTOR’s leakers to provide article access, journal publication becomes unprofitable and again something has to be done about the corporate oligopoly – perhaps the institutions form a consortium to buy up the unprofitable journals, and run them themselves, rather than paying subscriptions to them.

Perhaps a new model of article publication emerges, with institutions publishing the articles emerging from their own faculties, and various structures emerging to replace anonymous peer review and the journals’ selectivity and ‘prestige’ rankings.

As well as leakers, AS was advocating other moves such as (IIRC) academics publishing their own material freely and refusing to sign away their copyright. Tha plan was not just to republish all of JSTOR (or if you want to look only at the one tactic that AS actually started to implement, you will need to posit a willingness on the part of universities to tell their students to search for articles on the Pirate Bay and sites like Scribd or search to see if any copies are available in some other corner of the internet. (I do this already via Google scholar – a small but significant minority of papers are available in one fo5rm or another, often posted by the author on insitutional web space. I’m not sure of the legal status of such copies, which are often late drafts which don’t differ from the published version except in formatting – I suspect the publishers are willing to overlook this because suing the author of a paper for publishing a copy of it, or an institution for hosting it would really start raising awkward questions and threaten the goodwill/inertia which leads the current situation to be tolerated.

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Tim Wilkinson 01.21.13 at 10:00 pm

The further info section of the Wiki entry linked by Rich has some links which I found useful – in particular http://en.wikipedia.org/wiki/List_of_academic_journals_by_preprint_policy which relates to the status of authors’ self-publication/submission to various databases.

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Matt 01.21.13 at 10:04 pm

But: I don’t know what would have happened if Mr Swartz had succeeded in setting up a complete copy of the JSTOR archive. I would suppose that, given his published views, he would have wanted this copy, ASTOR, to be freely available to anyone who wanted to use it. At which point, to judge by my experience, many academic institutional administrators who care for nothing but their institution’s finances would soon cancel their institutional subscription and tell anyone distressed by that to link up to ASTOR.

This experiment has already been run and answered in the negative. With a few minutes of searching you can find complete archives of high-profile journals from science, mathematics, and engineering shared via P2P services and file lockers. Liberating JSTOR would be novel mostly in that non-STEM topics are currently underrepresented in the pirate archives. I challenge you to identify a once-subscribing university where administrators decided that instead of carrying institutional subscriptions to journals they would tell students and researchers to “just use the Russian torrent sites.”

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bianca steele 01.21.13 at 11:10 pm

I don’t think there is awareness of the fact that most of the data is unavailable to almost everybody. I think the existence of the unauthorized sites contributes to that[1]. People say “X information is on the Internet” and lots of people probably don’t know what its status is. I’ve had professionals tell me, when I asked them for information, to go research it for myself on the Internet–to find that the information I’d asked for is not available to non-professionals. And I know people who are strict, strict law-abiders in some contexts, including on-line contexts, who seem to find it hysterical to think that some Internet sites are less than “legit.”

[1] Though so do sites that disappeared behind firewalls as soon as monetizing them became feasible–of course this was only noticed by people who didn’t have legitimate reasons to pay already before the firewall was moved outward.

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bianca steele 01.21.13 at 11:25 pm

Though I also don’t think people on the other side realize how easily the open-data rhetoric can be used by those who think the state ought to decide who gets the information, whether through security clearances (military-industrial with the emphasis on military), or some more abstract form of official authorization. All it says is that YOU may be using data you don’t have a right to. Maybe because you aren’t right with the government, or maybe because you don’t have a proper relationship with the real originators. Maybe because you didn’t realize the corporation owns everything you do 24/7 and you didn’t bring it to the table where you work. Or, maybe, because you’re trying to make a profit, keep the information for itself, aren’t contributing it to society as a whole. (The open-data perspective.)

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Barry 01.21.13 at 11:30 pm

bianca @237, I don’t understand the theme of that paragraph. What are you trying to say?

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bianca steele 01.22.13 at 12:17 am

Barry: bianca @237, I don’t understand the theme of that paragraph.

Sorry, my error-correcting algorithm is failing on the sentence above. I can see that the checksum is wrong, but there’s not enough information to tell me what the correct content should be. (Is that what you meant to say to me? I wouldn’t want to look ridiculous by walking straight into an ipse dixit.)

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John Quiggin 01.22.13 at 12:46 am

@LFC But why is it an oversight? If a minor offence is a sufficient pretext for 50 years imprisonment (as threatened by the prosecution) on grounds of special deterrence (as claimed in Kerr’s apologia) why even bother with proving the offence? Swartz’ intent was clear regardless of whether he could be convicted of a crime in this case.

As observed by Harvey Silverglate, Swartz had almost certainly committed felonies on a daily basis, just like everyone else – presumably one of them would have done just as well to meet the requirement that he be convicted of something before being sentenced.

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Tim Wilkinson 01.22.13 at 3:56 pm

Yes; so-called special deterrence is the only punitive measure which in the individual case is not justified by the punishee’s past conduct. I leave to one side for the moment all the other objections to ‘special deterrence’, and to applications of it that are grossly disproportionate by any standard, and focus just for the moment on this point and its relation to John’s comment.

Considering again the 3 traditional goals of imprisonment (which is what those indulging in normative penology almost always have in mind when they talk loosely of ‘punishment’ – the main exception being killing, which is for good reason usually treated separately and needn’t be condsidered here):

2. Deterrent punishment. I’ve outlined why this does not include ‘special deterrence’ – essentially because in the absence of an iterated process, it requires those supposedly deterred to believe in backward causation. General deterrence has the form: offence o justifies penalty p because (penal practice P deters offences of type O), where o is an instance of O and p of P. Special deterrence would have to have the form: offence o justifies penalty p because p deters o2. But p, being an individual instance of punishment, cannot deter anything once it has been meted out – only something feared, thus in the future, can do that; in the general deterrence schema, P is an ongoing practice which includes future instances, so can deter.

3. Reform. Despite the name, this is in fact only arbitrarily linked to past conduct, so you might think special deterrence could be justified by ananolgy with this. But reform is only arbitrarily linked to imprisonment, and it is definitely not a kind of punishment – even if some would like to use punishment to ‘knock some sense into’ people, it is both contingent if true, and anyway false, that this is an effective strategy. Not many would be willing to endorse such a view as explicitly as I describe it anyway, with good reason. The actual methods used to ‘reform’ are in fact things which people benefit from, and might be expected to welcome if they had been (as they should be) available before any offending had occurred: training, education, careers advice, mental health services, drug rehab.

4. Prevention – this typically refers to imprisonment, though other forms of monitoring such as tagging and indeed surveillance are available. Like reform, it is not necessarily punitive, thus not a counterexample.

However, incapacitation is almost inevitably unwelcome, and is only applied to those who have already offended (unless they are diagnosed as mentally ill). The existing official practice is sometimes to include an incapacitatory component in prison sentences while not applying unwelcome/forcible methods to incapacitate those compos mentis who may be predictable offenders but haven’t offended yet. (To the extent that methods of ‘reform’ are unwelcome/forcible, this is true of them, too, but that can be left aside since my arguments about incapacitation will cover them a fortiori.)

So, the argument might go, since it’s OK to include an additional incapacitatory component in de facto punitive sentences, special deterrence must escape the objection under consideration here (other decisive objections still stand – incapacitation is a more justifiable response to the hypothetical openly and adamantly determined reoffender).

This is nearly but not quite true, but en route to explaining why, I’d challenge the premise. I don’t accept that even de facto punitive measures are justified by the goal of prevention. Preventative detention is the obvious case: Robert Nozick has discussed this, and holds that while such a practice could be justified on grounds of public safety, the person detained to prevent merely predicted future offending must be fully compensated for their detention. One need not agree to see that this possibility establishes that preventative detention is not essentailly punitive: it could work just as well if it were fully compensated for. Special deterrence by contrast is essentially punitive – a punishment which was fully compensated for could not perform the supposed function of special deterrence, which is to deter. Given that incapacitation need not be punitive, it should not be if that is possible, and the fact that it is is something to be avoided – given that we are talking of incapacitation as the primary aim, rather than a side-effect. There is in nay case clear difference here, and if harsh preventive measures are to be positively justified, it will not be on the same basis as that supposedly justifiying special deterrent punishment.

There is another idea or family of ideas which I suspect probably underlies LFC’s explicit, and/or others’ implicit, willingness to accept special deterrence for past offenders but not for the unconvicted: the ‘us and them’ approach whereby offenders plave them,selves beyond the pale of civil society, or as it is sometimes put by the more outspoken advocates of this kind of view, ‘give up all their rights’. Clearly most such views, though popular in a knee-jerk, scapegoaty kind of way, are rankly uncivilised. One variant might be based in the idea – aslso to be found in Nozick (I tend to cite Nozick first, mainly because I’m so familiar with it) that desert (justifiable retribution) places an upper bound on justified punishment, which may be ‘drawn against’ in order to subserve positive, goal-based justifications, notably general deterrence.

Here the idea is that the offender does not lose all rights, but ‘opens the door’ to a certain level of punishment, so far as that can be justified by other considerations. So on this view ‘special deterrence’ could be used up to the maximum ‘deserved’ punishment. The problem here is in determining what that deserved punishment is – unless one just stipulates that this is equal to the maximum sentence – which is obviously not right – one is still faced with the basic problem that the factors which determine desert – including character and remorse, etc – all relate to the past offence, while special deterrence is independent of past conduct, as I’ve tried to explain.

(One could go on to examine how ‘retribution’ rather than being an independent justification for punishment is, on a deep, reflective analysis, actually the end product of actually operative justifications – in a Millian vein, our understanding of what is deserved in the individual case is actually founded on and informed by the underlying goals of punishment; notably general deterrence. But never mind that.)

The final possibility I’d consider is the idea that somehow offending behaviour is a necessary part of an admissible or feasible way of determining that a person will offend in the future – and mon-vacuously so, i.e. there is such a way which does make this determination in some cases. This is not at all plausible and I don’t think anyone is likely to defend it, once it’s stated explicitly.

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