MIT and Aaron Swartz

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.

https://petitions.whitehouse.gov/petition/remove-united-states-district-attorney-carmen-ortiz-office-overreach-case-aaron-swartz/RQNrG1Ck

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.

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.

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.

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.

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.

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.

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.

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

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.

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?

“…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.

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.)

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

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.

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?

“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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

…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.

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…

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.

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.

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.

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

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.

“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.

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?

“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.

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.

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.

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

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!

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.

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.

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.

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.

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.

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.)

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.

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.

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.

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.

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.

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?

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.

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.

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.

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.

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’.

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

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

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.

“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…

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.

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.

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.

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.

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.

“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.

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?

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?

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.

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.

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.

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

And that’s not enough?

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.

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.

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.

This response to Orin Kerr is worth reading.

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.

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?

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.

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.

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.

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.

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.

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.

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.

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.

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.

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?

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.

http://psycnet.apa.org/index.cfm?fa=buy.optionToBuy&id=2011-27146-004

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.

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.

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.

“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.

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?

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.))

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.

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.

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.

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…”

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

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.

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.

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.”

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.)

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.)

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.