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The Lack Of A Legal Or Moral Basis For The Aaron Swartz Indictment Is Quite Troubling

from the what-are-the-feds-up-to? dept

There have been a lot of interesting discussions about the Aaron Swartz indictment, but I wanted to highlight a few key points on this, starting with an analysis of the actual legal points by Max Kennerly, who points out that the actual charges don't seem to hold up:
I'm not going to take the wire fraud claim under 18 U.S.C. § 1343 seriously. They’re going to have a lot of trouble proving Swartz “devised or intending to devise any scheme or artifice to defraud” by evading the IP restrictions imposed by JSTOR. As the Department of Justice’s Attorney Manual (USAM) notes, most courts interpret “defraud” as meaning “a scheme to defraud another out of money.” More from the USAM about the “specific intent” to defraud here.

The 18 U.S.C. § 1030(a)(4) claim requires the prosecutor show Swartz “knowingly and with intent to defraud, accesse[d] a protected computer without authorization, or exceed[ed] authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value.” The indictment claims the papers were “things of value,” but they’ve got the same problem: no intent to defraud. Bear in mind we’re talking about a computer hacking statute; the statutes don’t all just create liability for improper access, they create liability for specific “hacking” scenarios. Section (a)(4) was meant to prosecutor individuals who stole information for the purpose of fraud. Swartz, a long-time information activist, certainly didn’t download millions of research papers from JSTOR with the intent of defrauding people about Group Theory. That claim is likely going to lose.
That's just a taste. He goes through the full list of claims and basically finds all of them wanting from a legal basis.

But what I thought was more interesting was the way Kennerly opened his analysis, more by highlighting the moral question in the indictment. He starts out by quoting the famous speech by former Supreme Court Justice (and Chief Nuremberg Prosecutor) Robert Jackson about the importance of discretion from prosecutors, noting how a prosecutor can effectively destroy someone's life just by investigating them, and how important it is that prosecutors use that power judiciously, and only for the benefit of society. And then Kennerly notes:
I don’t see what societal interest Carmen Ortiz think he’s vindicating with the Swartz indictment. According to Demand Progress, JSTOR already settled their claims with him. What more needs to be done here? The “criminal violation” here arises not from any social duty — like, you know, our society’s communal prohibition on murder — but rather from Swartz “exceeding the authorization” imposed by JSTOR on its servers. Prosecuting Swartz criminally makes no more sense than prosecuting banks or telecommunications companies for violating their consumer agreements, and we all know that’s not going to happen any time soon.
Along those lines, there are two other discussions going on that are worth highlighting. Kevin Webb points out that pretty much anyone doing serious academic research these days almost certainly has to violate some sort of federal laws to do so, mainly because of the ridiculous setup of academic journals which basically lock up all kinds of research -- especially government-funded research, that other researchers need to build on:
I’ve lost count of how many hours I’ve spent sitting in basements of academic buildings, breaking federal laws in the pursuit of answers. And I was reminded of my colleagues who still spend their days painstakingly scraping data off the web–sometimes legally sometimes not–the name of academic inquiry.

None of us want to break the law. It’s simply that we don’t have a choice.

The mechanisms for sharing academic discourse are broken. They barely even function as systems for connecting interested parties within existing disciplines. Ask just anyone who spends their career writing and consuming scholarly work and you will hear a litany of complaints about how poorly suited the academic publishing industry is to modern day collaboration.
Of course, Webb's main point is in talking about copyright law and, as we've noted, the feds have carefully avoided using copyright law in its claims against Aaron, in large part because those claims are even weaker than the claims they're already using.

Separately, there's a slightly different, but important view from Tim Lee, who points out that Aaron Swartz's form of activism is reckless, and tarnishes the good work of others advocating for open research.
But the more lasting cost of Aaron’s actions will likely be to the reputation of the open access movement. Open access advocates have the natural high ground and are gradually winning the debate over the future of academic publishing. Change comes slowly, but things have been changing. Aaron’s actions are likely to slow that progress by allowing the bad guys to lump open access advocates in with malicious clowns like LulzSec. The incident makes JSTOR look like an injured, even magnanimous, party and gives them an excuse to make their policies more restrictive.
I actually think the lasting impact could be even more far reaching. Thanks to Aaron's role in founding Demand Progress, this move is unfortunately being used to tar and feather all of Demand Progress' efforts. We've already seen indications that supporters of PROTECT IP are now using the indictment to suggest that the approximately 60,000 letters sent via Demand Progress' website in opposition to PROTECT IP should be discounted. Never mind the fact (again) that Swartz isn't even being charged with copyright infringement, and the issue is totally unrelated to PROTECT IP, the lobbyists are using the whole situation to paint the entire protests against PROTECT IP as being in support of "piracy." This is unfortunate and inaccurate, but it's how politics works.

That being said, I'm not sure I completely agree with Tim on whether or not Swartz's actions were quite as "counterproductive" as he makes them out to be. I've already explained (earlier today in fact!) how counterproductive hacktivism can be in many cases, but I'm not sure I see it in Swartz's case. Now, to be clear, this is based on the belief that Swartz wasn't actually planning to release all the works he downloaded. If, however, evidence shows that he really did intend to distribute all these works, as alleged by the government, then I'm more inclined to agree with Tim. But, if as others have suggested, Swartz was using this to do additional research on open access/corruption issues, it's much more difficult to see why this is so problematic.

Activism works because it pushes boundaries. Swartz may have a natural inclination to stick his middle finger up at authority when it gets in the way of things he believes should be more open, but that's kind of how activism works sometimes. I don't agree with the DDOS attacks of Anonymous, because they don't seem to have much of a point beyond "hey, we don't like these guys/these policies." But Swartz's activism always had a direct purpose and a clear statement and basis. And I don't consider that, by itself, to be reckless. At best, in this case, I can see how there might be a (physical) trespassing charge for Swartz for sneaking into a building in which he did not belong. But that's a minor issue. All the rest of the stuff seems like a more vindictive attack by the government for not liking Swartz and the way he goes about his activism.


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  1.  
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    Anonymous Coward, Jul 20th, 2011 @ 12:19pm

    All the rest of the stuff seems like a more vindictive attack by the government for not liking Swartz and the way he goes about his activism.

    annnd we come to the crux of the issue.

     

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    mike, Jul 20th, 2011 @ 12:32pm

    There are at least two things that are criminal in what Mr. Swartz did for which some punishment is due:
    1. Breaking into a locked network cabinet to install his own hardware.
    2. Effectively pursuing a DDoS against JSTOR

    If he hadn't done those things his case would be MUCH more sympathetic.

     

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    Hephaestus (profile), Jul 20th, 2011 @ 12:36pm

    If I was paranoid ...

    I would have to say this arrest is very coincidental, one of the people that rallies against PROTECT IP, that started demand progress, getting arrested. After what we read in the HB Gary emails, and what we have seen DOJ do recently. Do we actually believe that this isn't yet another abuse of power to push a political agenda.

    /Paranoia

     

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    Jeremy7600, Jul 20th, 2011 @ 12:42pm

    Re:

    Soooooooooo? What?

    Why hasn't MIT pressed charges on the 1st?

    And how does one "pursue" a DDoS by downloadng documents in bulk? While the result may have had these consequences in the end, it wasn't his intent, it just shitty network management by MIT. (Which is hard for me to believe in the very first place)

    None of this is the responsibility of the US to investigate or prosecute.

     

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    Anonymous Coward, Jul 20th, 2011 @ 12:44pm

    DDoS

    I don't think DDoS means what you think it means.

     

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    Anonymous Coward, Jul 20th, 2011 @ 12:47pm

    Re:

    Everyone who has the word hack associated to his name needs some sort of punishment in your world huh? Those dirty hackers! theys shuts down mah PSN for a whole month! what am i supposed to do for a whole month without CoD?

     

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    Anonymous Coward, Jul 20th, 2011 @ 12:48pm

    Re: If I was paranoid ...

    actually i'd forgotten about the crap in the HBgary stash about persecuting activists.

    shit now my tinfoil hat is glowing.

     

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  8.  
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    Max Kennerly, Jul 20th, 2011 @ 12:51pm

    Re:

    Indeed, breaking into a locket cabinet is likely a trespass. It's a state law misdemeanor, a whole different bag of beans from federal computer fraud felonies. The US Attorney has no business dressing up a trivial trespass as a major hacking prosecution.

     

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    jakerome (profile), Jul 20th, 2011 @ 12:53pm

    Moral equivalency

    He "broke into the wiring closet" in the same way he "stole the articles." That is to say, he didn't break in anywhere or steal anything. He did, however, copy some articles that were free to copy and access a computer he was free to access.

    He's basically being prosecuted for changing his IP address. This is the moral equivalent to using multiple computers to stuff the ballot box in some online poll.

     

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  10.  
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    Gabriel Tane (profile), Jul 20th, 2011 @ 12:54pm

    Re: If I was paranoid ...

    The problem isn't whether you're paranoid. The problem is that our government isn't paranoid enough.

    I think this is all coming too late. If this kind of thing happened long ago... I'm talking about the government abusing its power to punish the people... we could have a much better environment to deal with it.

    Look at the French Revolution. When the people were pissed enough at those in power to actually do something about it, people in power died. Now, I'm not one to advocate the death of anyone, but I will say that as a result of that, the French government fears its people. Which is how it should be.

    Here, we're nothing but little sheep being herded wherever they want us. We fear our government doing exactly this [points to article above] to us, so we all keep quiet and follow along lest we be next.

    If something doesn't happen as the result of this one (and picking on the founder of one of the biggest 'let's change things' activist groups probably wasn't the best of ideas), then we're going just see more and more of this. Me? I'm going to be sending letters to reps as a start. After that, I think my yearly charitable donations budget just got re-allocated.

     

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    Anonymous Coward, Jul 20th, 2011 @ 12:59pm

    Re: Re:

    @Jeremy

    Why hasn't MIT pressed charges on the 1st?

    Maybe because that is the US Attorney's job.

    None of this is the responsibility of the US to investigate or prosecute.

    The breadth of the indictment suggests otherwise.

     

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  12.  
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    Anonymous Coward, Jul 20th, 2011 @ 1:08pm

    Re: Re: Re:

    Well
    1) yes generally when a crime involves a third party, like say assault, that party has to press charges against the offender, the prosecution can press its own charges if it believes it nessasary, such as the victim being too scared to press charges, but generally is supposed to abide by the victims wishes.

    to which this is a victimless crime anyway, he copied too many files for which he had proper clearence to copy, just not in the ammount he did. they tried to stop him, halfheartedly at best, he went around them.

    2)The number of the charges does not predispose the US attorney to prosecute.

    3)you are a giant dick, please go die in a fire, people like you should be euthenized, there I said it.

     

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    Mike Masnick (profile), Jul 20th, 2011 @ 1:15pm

    Re: Re: Re:

    Maybe because that is the US Attorney's job.


    Yes, but if neither JSTOR nor MIT seem that upset about it... just what good is this prosecution?

     

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    txpatriot, Jul 20th, 2011 @ 1:24pm

    @Masnick: Have you ever served on a grand jury?

    If so, then you'd know grand jurors hear testimony from witnesses in support of each and every count brought to them before issuing a "true bill". Whether or not the allegations are in fact true is up to a petit jury to decide; the grand jury decides only if the govenment has met their burden of presenting enough evidence to proceed with a felony prosecution. OTOH, pundits like you and others of your ilk, don't have the benefit of that grand jury testimony, yet you render your unqualified opinions as if you have the last word.

    Thank goodness our legal system doesn't operate that way . . .

     

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    Anonymous Coward, Jul 20th, 2011 @ 1:28pm

    Re:

    yea because juries are without wrong in and of themselves

     

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    Hephaestus (profile), Jul 20th, 2011 @ 1:29pm

    Re: Re: If I was paranoid ...

    This bit from that article reminds me of here, every time we get swamped with AC's and anti-mikes ...

    "How many times have you seen a diary get posted that reports some revelatory yet unfavorable tidbit about someone only to see a swarm of commenters arrive who hijack the thread, distract with a bunch of irrelevant nonsense, start throwing unsubstantiated accusations and ad hominem attacks to where before you know it, everyone's pretty much forgotten what the diary said in the first place."

    Makes my tin foil hat glow also

     

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    Anonymous Coward, Jul 20th, 2011 @ 1:35pm

    Re: Re: Re: Re:

    Well

    1) yes generally when a crime involves a third party, like say assault, that party has to press charges against the offender, the prosecution can press its own charges if it believes it nessasary, such as the victim being too scared to press charges, but generally is supposed to abide by the victims wishes.


    At some point, someone called the cops. Otherwise how would they know what is going on within the MIT network? If you call the cops to report a burglary and they review your security cameras and identify the culprit- I bet you're past the point where you can say, "Oh, never mind".

    to which this is a victimless crime anyway, he copied too many files for which he had proper clearence to copy, just not in the ammount he did. they tried to stop him, halfheartedly at best, he went around them.

    This is probably the reason the cops were called in the first place- by the way, your spelling is atrocious.

    2)The number of the charges does not predispose the US attorney to prosecute.

    Offense severity has more to do with prosecution than just numbers. Note the potential 35 years in the can and $1 million fine.

    3)you are a giant dick, please go die in a fire, people like you should be euthenized, there I said it.

    Interesting debate style, loser. The object of your affection made a tragic miscalculation. He's high profile and he's about to become the poster boy for why you shouldn't break into other people's networks. Personally I don't think his conduct warrants incarceration, however tacking him to the wall sends a bigger message than chasing around anonymous teenaged hackers no one's ever heard of. His actions have also done incalculable damage to the Demand Progress anti-Protect IP campaign. It will even easier to dismiss the validity of the petitions and messages forwarded by them as being questionable, if not mostly bogus.

     

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  18.  
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    Anonymous Coward, Jul 20th, 2011 @ 1:39pm

    Re: Re: Re: Re:

    "Maybe because that is the US Attorney's job."


    Yes, but if neither JSTOR nor MIT seem that upset about it... just what good is this prosecution?

    At some point, one or both of them called the cops to report the crime and investigate. Kind of hard after that to unring the bell and say, "Never mind".

     

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  19.  
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    Anonymous Coward, Jul 20th, 2011 @ 1:41pm

    I'm actually hoping that all of this attention to Swartz has the opposite effect, in that it results in more and more people finding out about PROTECT IP and what it stands for.

     

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  20.  
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    Anonymous Coward, Jul 20th, 2011 @ 1:44pm

    Re: If I was paranoid ...

    I would have to say this arrest is very coincidental, one of the people that rallies against PROTECT IP, that started demand progress, getting arrested. After what we read in the HB Gary emails, and what we have seen DOJ do recently. Do we actually believe that this isn't yet another abuse of power to push a political agenda.

    /Paranoia


    It appears that the underlying behavior and perhaps investigation took place before the bill was even introduced. No matter, he won't be the first high-profile person who did something really stupid and got crucified for it. I'm not saying I agree with that approach, but it was fairly predictable.

     

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    Chosen Reject (profile), Jul 20th, 2011 @ 1:55pm

    Re: If I was paranoid ...

    That's what I was thinking. He stopped downloading back in January. JSTOR has said publicly that they don't mind what he's done and they aren't going to press charges. I doubt MIT cares since JSTOR doesn't care, though I haven't heard them say anything publicly about the matter. But as PROTECT IP starts getting some serious opposition, suddenly one of the founders of a large opposing groups gets charged.

    This looks like a really large scale ad hominem attack.

     

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  22.  
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    Jeremy7600, Jul 20th, 2011 @ 1:57pm

    Re: Re:

    This was my point. Thank you for putting it more succinctly :)

     

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  23.  
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    Hephaestus (profile), Jul 20th, 2011 @ 1:57pm

    Re: Re: If I was paranoid ...

    "If this kind of thing happened long ago... I'm talking about the government abusing its power to punish the people... we could have a much better environment to deal with it."

    We are in a much better place now, than we were five or ten years back. Ten years ago we wouldn't have even heard about the indictment of Aaron Swartz. Anything we did hear, would have been filtered through as a government press release, and handled by local and national new outlets.

    Today we have blogs, we have e-mail, everyone heard about it, the news spread through social media in less than a day, and 35,000 people sign a letter of support.

    Today, one day later, we have a legal analysis of the Indicment showing how this is bull shit. Tomorrow, the legal analysis will have spread far and wide. More than likely someone will start a campaign to email the United States Attorney for the District of Massachusetts, Carmen M. Ortiz, and peoples representaties. Eventually someone will point out to the US Attorney how much bad press this is getting, the charges will be reduced, and he will Aaron will be offered probation.

    To go back to what I was saying. The government is now under a microscope, everything they do in public is getting scrutinized, by everyone. This is the perfect time for the government to start acting even worse than it normally does.

    This is the dawn of social media, and very soon we will be able to make informed decisions about, who to vote for, and who to vote out of office.

     

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    TDR, Jul 20th, 2011 @ 1:59pm

    Dunno if DH has said this yet or not, but to all who understand the ridiculousness of this whole mess and who support organizations like DP and what they stand for, may the Swartz be with you! ^_^

     

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  25.  
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    TDR, Jul 20th, 2011 @ 2:01pm

    Re: Re: Re: If I was paranoid ...

    That would be nice if our vote actually meant anything. But as the machines themselves are rigged and the boxes are routinely stuffed, our elections are a farce.

     

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  26.  
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    Anonymous Coward, Jul 20th, 2011 @ 2:03pm

    Re: Re: Re: Re: Re:

    Interesting that all you have to throw at me is inferences that I am a fanboy, and personal attacks against my self and my spelling.

    I didn't even know who this douche was till this story broke, but I will throw a shit fit about him getting prosecuted for this shit, at worst he should be tried for trespassing, a reasonable person(read: not you) would just ban him from the network/premises and go back to buisness.

    literally the only reason he is getting tried by the feds is because someone handed the US attorney a suitcase filled with stacks with a note saying

    Burn him, please.
    -MPAA, RIAA


    lets break down your arguments

    At some point, someone called the cops. Otherwise how would they know what is going on within the MIT network? If you call the cops to report a burglary and they review your security cameras and identify the culprit- I bet you're past the point where you can say, "Oh, never mind".

    If some dude punched me in the face, I'd call the cops too, if he then pulled out his wallet handed me a suitable amount of cash and said sorry, I would not press charges. but the cops would still come, and they might even pressure me to press charges, but i have resolved the situation outside of their help and without letting the government get a cut, s they might take some pictures of my face and his hand and take him to court anyway so they can steal his money, and waste alot of other peoples money feeding and housing him for the rest of his days as a con/ex-con.

    and you don't see the problem here?

    This is probably the reason the cops were called in the first place- by the way, your spelling is atrocious.

    No shit my spellings bad, guess who has a keyboard and doesn't give a fuck...this guy.

    and to debunk your point, a private entity provided him limited access to some information(that should probably be free and open anyway, but thats another point)and he circumvented their stops. this is unlikely why the feds were ever involved in the first place.

    undoubtably the feds are constantly watching MIT's network, this would be prudent for them becuase they fear technology and its MIT.

    also undoubtably some sysadmin saw his traffic skyrocket, a metric shitton of data moving aroudn the network, freaked out and called the feds.

    Offense severity has more to do with prosecution than just numbers. Note the potential 35 years in the can and $1 million fine.

    So trumpt up charges are trumpt up?

    Interesting debate style, loser. The object of your affection made a tragic miscalculation. He's high profile and he's about to become the poster boy for why you shouldn't break into other people's networks. Personally I don't think his conduct warrants incarceration, however tacking him to the wall sends a bigger message than chasing around anonymous teenaged hackers no one's ever heard of. His actions have also done incalculable damage to the Demand Progress anti-Protect IP campaign. It will even easier to dismiss the validity of the petitions and messages forwarded by them as being questionable, if not mostly bogus.

    and finally a bunch of penis waving because you think your masters will succeed in their plan of dominating the human spirit.

    Guess what? You'll still be a slave.

     

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  27.  
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    Hephaestus (profile), Jul 20th, 2011 @ 2:24pm

    Re: Re: If I was paranoid ...

    "It appears that the underlying behavior and perhaps investigation took place before the bill was even introduced."

    Thanks, I didn't know that. For the past week or two I have been trying to comment on blogs, with out doing research, just parroting other people opinions. It weird how often assumptions and other peoples facts are wrong. And now I am jonesing to google if what you said is correct. But I won't, my experiment ends on Saturday.

    Back to being uninformed blogger dude ... ;)

    "No matter, he won't be the first high-profile person who did something really stupid and got crucified for it. I'm not saying I agree with that approach, but it was fairly predictable."

    We keep seeing this from the current administration. More so than any other in the past. Disagree with the agenda, or fight back in anyway and have charges filed against you.

    It must be great to have someone in the US attorney generals that has no quams about harrasing people for political gain. And deporting someone from the UK even though what he is accused of is legal there. And have no quams what so ever about ignoring due process, violating at least 4 constitutional amendments, and act like prior restraint doesn't exist.

     

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  28.  
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    Josh in CharlotteNC (profile), Jul 20th, 2011 @ 2:31pm

    Re: Re: Re: Re: Re:

    Kind of hard after that to unring the bell and say, "Never mind".

    So you're saying that once one party initiates a lawsuit, they must see it through to the bitter end until a guilty/not guilty verdict is handed down? That they can't decide that there wasn't a problem, nor can they decide to settle for a lesser charge/amount?

     

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  29.  
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    Chosen Reject (profile), Jul 20th, 2011 @ 2:42pm

    Re: Re: If I was paranoid ...

    The investigation might have occurred previous to the introduction of the PROTECT-IP Act. However, the charges weren't brought until after mounting opposition to it. Also, the investigation occurred after COICA failed. Certainly Patrick Leahy (who introduced both bills) knew he was going to introduce a follow up to COICA.

     

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    Dark Helmet (profile), Jul 20th, 2011 @ 2:55pm

    Re:

    Son of a bitch. I can't believe I didn't come up w/that on my own....

     

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    Anonymous American, Jul 20th, 2011 @ 3:17pm

    Re: Re:

    what am i supposed to do for a whole month without CoD?


    Kill Osama bin Laden?

     

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  32.  
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    Anonymous American, Jul 20th, 2011 @ 3:19pm

    Re: Re: Re: Re: If I was paranoid ...

    our elections are a farce

    But at least with the Deibold voting machines you know atleast two weeks ahead of time who's going to win the election.

     

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    out_of_the_blue, Jul 20th, 2011 @ 3:24pm

    Despite sound and fury above, question remain unanswered:

    What WAS Swartz up to in this?

    It's counterproductive in sum because there's NO productive side to be seen. And it's certainly going to be personally counterproductive for Swartz.

    I've a tip for all who want to fight the power: be loud right out in the open, not sneaking around "liberating" documents. Once you've identified tyranny for certain, details don't matter.

    Also, don't think that you're invulnerable to being tripped up by the small stuff; stay as squeaky clean as you can.

    My guess for what happened: The sole goal of police and prosecutors now is to put people in jail. They LIKE wasting time and money on "trivial" matters like this, and if they figure that you oppose gov't, then they strain after every charge. All prosecutors are essentially power mad, and get brownie points from the Establishment by going after its enemies, doesn't have to make sense or be legal.

     

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  34.  
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    Anonymous Coward, Jul 20th, 2011 @ 3:26pm

    Re: Re: Re: Re: Re: Re:

    BUT LAWYERS!!!

     

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  35.  
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    Anonymous Coward, Jul 20th, 2011 @ 3:39pm

    Re: Re: Re: Re: Re: Re:

    "Kind of hard after that to unring the bell and say, "Never mind". "

    So you're saying that once one party initiates a lawsuit, they must see it through to the bitter end until a guilty/not guilty verdict is handed down? That they can't decide that there wasn't a problem, nor can they decide to settle for a lesser charge/amount?

    My God are you slow. Civil lawsuits are different entirely than criminal complaints. Plea bargaining is different than settling a lawsuit between parties. If you don't know what you're talking about, please feel free not to prove it.

     

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  36.  
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    Anonymous Coward, Jul 20th, 2011 @ 4:02pm

    Re: Re: If I was paranoid ...

    .... the French government fears its people. Which is how it should be.

    Three strikes??.... you're full of shit.

    If something doesn't happen as the result of this one (and picking on the founder of one of the biggest 'let's change things' activist groups probably wasn't the best of ideas), then we're going just see more and more of this. Me? I'm going to be sending letters to reps as a start. After that, I think my yearly charitable donations budget just got re-allocated.

    Demand Progress has no weight in DC. None. Until now, they were dismissed as professional malcontents. Now they are tainted by the spectre of criminal charges against the founder. There had already been skepticism over the legitimacy of the petitions and messaging over Protect IP. Now those are totally discarded as part of the political calculus.

     

    reply to this | link to this | view in thread ]

  37.  
    identicon
    Anonymous Coward, Jul 20th, 2011 @ 4:07pm

    Re: Re: Re: Re: Re: If I was paranoid ...

    Diebold got out of the voting machine business after they won the election... just so you are up to speed.

     

    reply to this | link to this | view in thread ]

  38.  
    identicon
    Anonymoose Custard, Jul 20th, 2011 @ 4:45pm

    Re:

    Just because the Grand Jury was convinced that they have a case doesn't mean they'll convince a Judge of the same.

     

    reply to this | link to this | view in thread ]

  39.  
    icon
    Rose M. Welch (profile), Jul 20th, 2011 @ 5:13pm

    Re:

    There are at least two things that are criminal in what Mr. Swartz did for which some punishment is due:
    1. Breaking into a locked network cabinet to install his own hardware.
    2. Effectively pursuing a DDoS against JSTOR

    If he hadn't done those things his case would be MUCH more sympathetic.


    If he had been charged for those actions, his case would be much less sympathetic. As is it, those things don't have any bearing on this case.

    Using your logic, someone who is charged with copyright infringement should be looked at differently if they had legally downloaded porn that was illegal to view in their state. Sure, it's bad, but is it relevant to the copyright infringement charge?

     

    reply to this | link to this | view in thread ]

  40.  
    icon
    Rose M. Welch (profile), Jul 20th, 2011 @ 5:14pm

    Re: Re: Re: Re: Re: Re: If I was paranoid ...

    Diebold simply changed their name.

    Just so you're up to speed.

     

    reply to this | link to this | view in thread ]

  41.  
    icon
    Rose M. Welch (profile), Jul 20th, 2011 @ 5:17pm

    Re: Re: If I was paranoid ...

    It appears that the underlying behavior and perhaps investigation took place before the bill was even introduced.

    Yes, the search for smear material against potential opponents usually does occur before you need it or use it which means that the timing is irrelevant to determining whether or not these charges are politically motivated.

     

    reply to this | link to this | view in thread ]

  42.  
    identicon
    Anonymous Coward, Jul 20th, 2011 @ 5:20pm

    Re: Re: Re: Re: Re:

    No, it's not.

     

    reply to this | link to this | view in thread ]

  43.  
    icon
    Rose M. Welch (profile), Jul 20th, 2011 @ 5:27pm

    Re:

    Yes, because your average Grand Jury is totally capable of determining whether or not a prosecutor has met the burden of presenting enough evidence on a hacking charge.

    This is totally true, as long as you're using the new definition of hacking, which is:

    hack
    vb
    1. to cut and clear (a way, path, etc.), as through undergrowth
    2. to cough in short dry spasmodic bursts
    3. to manipulate a computer program skilfully, esp, to gain unauthorized access to another computer system
    4. to use a computer in a way that observers do not fully understand or do not like

     

    reply to this | link to this | view in thread ]

  44.  
    icon
    Rose M. Welch (profile), Jul 20th, 2011 @ 5:30pm

    Remember...

    ...the definition of 'hacking' has been updated.

    hack, verb
    1. to cut and clear (a way, path, etc.), as through undergrowth
    2. to cough in short dry spasmodic bursts
    3. to manipulate a computer program skilfully, esp, to gain unauthorized access to another computer system
    4. to use a computer in a way that observers do not fully understand or do not like

     

    reply to this | link to this | view in thread ]

  45.  
    icon
    Josh in CharlotteNC (profile), Jul 20th, 2011 @ 6:26pm

    Re: Re: Re: Re: Re: Re: Re:

    Civil lawsuits are different entirely than criminal complaints. Plea bargaining is different than settling a lawsuit between parties.

    Of course they're different - I never said they were the same. You're the one making completely stupid and unsupportable comment that once a crime is reported, nothing can stop it being investigated and prosecuted. My statement was meant to be completely absurd because yours was.

    Perhaps I should have chosen my words more carefully and said "Once one party engages the justice system, they can't back out until a verdict comes down." That's still absurd without getting caught up in the difference between civil and criminal law. We know its absurd because the police and DAs drop investigations, cases, and charges every single day.

     

    reply to this | link to this | view in thread ]

  46.  
    identicon
    Anonymous Coward, Jul 20th, 2011 @ 6:53pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    Josh,

    you're all over the map on this. And don't claim that you were being deliberately absurd, it's the most lucid thing you've said all week.

    Are you the same Josh who used to talk about the government planting chips in people's heads? If not you sound a lot like him.

    Someone called the cops. The cops investigated and turned the results over to the US Attorney. The US Attorney decided the case should be prosecuted. Did MIT waffle? Maybe. But at this point the heavy lifting is done, the case looks good, the US Attorney presents to the grand jury. If the US Attorney thought it was a stinker, he'd have passed.

     

    reply to this | link to this | view in thread ]

  47.  
    identicon
    Anonymous Coward, Jul 20th, 2011 @ 7:18pm

    Academics Are Like Abused Wives

    Academics need to get themselves free of the abusive academic journals. We should not be hearing things like "you will hear a litany of complaints about how poorly suited the academic publishing industry is to modern day collaboration". It is like a battered wife explaining why she chose to stay with her abusive husband.

    If he beats you up, he does not love you. Leave him.

    Likewise, if the journal does not help your academic work, regardless of the reason why they do that, they do not have the advancement of your subject at heart. Stop using them, use another means.

    Try the following clip:

    http://www.youtube.com/watch?v=aVXX6NFpcT8&feature=related

    It helps if you play it on big speakers at +90dBA. Come on, you academics, you are supposed to be intelligent and capable.

     

    reply to this | link to this | view in thread ]

  48.  
    identicon
    Anonymous Coward, Jul 20th, 2011 @ 9:17pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Probably not.

     

    reply to this | link to this | view in thread ]

  49.  
    icon
    G Thompson (profile), Jul 20th, 2011 @ 9:27pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Wow, you don't like ad=hominem attacks but you do like to make them.

    As for plea bargaining being the only way the prosecution can drop, reduce, or even tack on more charges you are absolutely wrong.

    The prosecution in any criminal matter can at any time up until a verdict is presented by an appropriate authority (judge or jury) reduce, change, update, or drop with or without prejudice any or all charges. Though it is highly frowned upon by the courts if this is done during trial, it still can be done.

    Also I don't think you understand the concept of a hostile witness which in this case having read the public and therefore known statements from both alleged victims the defence will absolutely make them out to be hostile and use that against the prosecution.

    Oh and just because a US Grand Jury gave the go ahead means nothing, as most lawyers know a "A good prosecutor could get a grand jury to indict a ham sandwich." [Introduction, 1st paragraph]

     

    reply to this | link to this | view in thread ]

  50.  
    identicon
    Anonymous Coward, Jul 20th, 2011 @ 10:30pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    As for plea bargaining being the only way the prosecution can drop, reduce, or even tack on more charges you are absolutely wrong.

    Who said anything about the only way?

    The prosecution in any criminal matter can at any time up until a verdict is presented by an appropriate authority (judge or jury) reduce, change, update, or drop with or without prejudice any or all charges. Though it is highly frowned upon by the courts if this is done during trial, it still can be done.

    Thank you Your Honor.

    Also I don't think you understand the concept of a hostile witness which in this case having read the public and therefore known statements from both alleged victims the defence will absolutely make them out to be hostile and use that against the prosecution.

    What? MIT and JSTOR appear to want to forget the whole thing even though they instigated the investigation. If anything, I'd expect them to go namby-pamby on the stand and not try to bury Swartz. You totally lost me.

    Oh and just because a US Grand Jury gave the go ahead means nothing, as most lawyers know a "A good prosecutor could get a grand jury to indict a ham sandwich." [Introduction, 1st paragraph]

    While true about the grand jury, few prosecutors like ending up with shit on their faces. I doubt the US Attorney will bring a case he expects to lose.

     

    reply to this | link to this | view in thread ]

  51.  
    icon
    Gabriel Tane (profile), Jul 21st, 2011 @ 5:49am

    Re: Re: Re: If I was paranoid ...

    "Three strikes??.... you're full of shit."
    You're right... I didn't take that one into consideration. But look at their other laws... They have universal healthcare(for better or worse, depending on who you listen to) because they wanted it. Go ask a French legislator about the idea of taking away that healthcare... see what he or she says. I would love to see private industry try to bribe that one away like has happened here.

    And for the record, 'you're full of shit' is not the best way to engage in reasonable debate. You sound like a petulant 12 year-old using curse words because you're out of mommy and daddy's earshot (or because you're on Xbox Live).

    "Demand Progress has no weight in DC. None. Until now, they were dismissed as professional malcontents. Now they are tainted by the spectre of criminal charges against the founder. There had already been skepticism over the legitimacy of the petitions and messaging over Protect IP. Now those are totally discarded as part of the political calculus."
    [citation needed] And, again for the record, you're opinion isn't going to go far with me as a 'citation'.

     

    reply to this | link to this | view in thread ]

  52.  
    identicon
    Anonymous Coward, Jul 21st, 2011 @ 6:23am

    Re: Re:

    Rose, I think you are playing the "ignorance" card a little hard here.

    Did Swartz use a system to bypass protections in place to limit system access? Did he do so knowing that he was bypassing a system put in place to limit his access?

    Was his additional access above and beyond what the system administration had deemed valid?

    Answer yes to those, and you have hacking. The mere act of illegal or unpermitted access is a "hack". He had to bypass a block to get into the system, and did so repeatedly.

    Explained in those terms, it's not hard to understand. I am sure that a grand jury of your peers could figure it out, unless you think that you are just way more smarter than they are.

     

    reply to this | link to this | view in thread ]

  53.  
    icon
    ComputerAddict (profile), Jul 21st, 2011 @ 6:53am

    I read this part:
    Prosecuting Swartz criminally makes no more sense than prosecuting banks or telecommunications companies for violating their consumer agreements, and we all know that’s not going to happen any time soon.
    and thought Maybe that's EXACTLY what they are trying to get out of it. Be able to hold consumers liable for their BS T.O.S agreements that change without warning or notice.

     

    reply to this | link to this | view in thread ]

  54.  
    icon
    sumquy (profile), Jul 21st, 2011 @ 8:10am

    well, yes your honor, i did rob that bank. but i was only going to use the money for a research paper on, um...oh yeah, the distribution of dollars with specific serial numbers and their disbursement in the banking system.

     

    reply to this | link to this | view in thread ]

  55.  
    icon
    Rose M. Welch (profile), Jul 21st, 2011 @ 8:33am

    Re: Re: Re:

    Was his additional access above and beyond what the system administration had deemed valid?

    And had the admin let him know this? I mean, reading all of the clock-and-dagger stuff that MIT was doing just makes me laugh. Why bother to chase him 'round the site when you can just send him written notice that he's been kicked off of the system? As far as I'm concerned, until they do that, he's allowed on.

    Answer yes to those, and you have hacking.

    Then my daughter (and the thousands of children with Gmail accounts) are also hackers and should be prosecuted by the DoJ. Do you think that is equally true?

    The mere act of illegal or unpermitted access is a "hack".

    No, it's not. Unless you're using the new definition, anyway.

    He had to bypass a block to get into the system, and did so repeatedly.

    So? What's your point? He has permission to be there. And unless you can show me that they told him, preferably in writing, that his access was being yanked, then he had every right to be there.

    Explained in those terms, it's not hard to understand.

    Too bad that those terms are:

    a. not correct (See: Lori Drew), and
    b. horrible (See: Child hackers).

    I am sure that a grand jury of your peers could figure it out, unless you think that you are just way more smarter than they are.

    Statistically, it's extremely likely that I'm smarter than your average juror. More importantly, it's a cinch that I'm significantly more knowledgeable about anything computer-related than your average juror.

     

    reply to this | link to this | view in thread ]

  56.  
    identicon
    Anonymous Coward, Jul 21st, 2011 @ 9:07am

    Re: Re: Re: Re: If I was paranoid ...

    "Three strikes??.... you're full of shit."

    You're right... I didn't take that one into consideration.

    So you are on a board where tech policy is the major focus and seem to have 'forgotten' about the French three strike law, which is probably the most draconian piracy law on the books? You have a convenient memory when it comes to your sweeping contention that the French government is afraid of its citizens.

    But look at their other laws... They have universal healthcare(for better or worse, depending on who you listen to) because they wanted it. Go ask a French legislator about the idea of taking away that healthcare... see what he or she says. I would love to see private industry try to bribe that one away like has happened here.

    That's all about the political climate. We currently have social security and Medicare/Medicaid only because it was brought into law in a different era. Today, there's little chance of those being taken away because it is the status quo.

    On the other hand, in the current climate none of those programs would have a prayer of being initiated. Look what happen to something as simple as single payer health care reform.

    And for the record, 'you're full of shit' is not the best way to engage in reasonable debate. You sound like a petulant 12 year-old using curse words because you're out of mommy and daddy's earshot (or because you're on Xbox Live).

    Are you really that frail and delicate?

    "Demand Progress has no weight in DC. None. Until now, they were dismissed as professional malcontents. Now they are tainted by the spectre of criminal charges against the founder. There had already been skepticism over the legitimacy of the petitions and messaging over Protect IP. Now those are totally discarded as part of the political calculus."

    [citation needed] And, again for the record, you're opinion isn't going to go far with me as a 'citation'.

    On this subject, I know what I'm talking about. Having my credibility questioned by the guy who ignores the existence of three strikes legislation in his insistence that the French government fears its electorate is not particularly damning.

     

    reply to this | link to this | view in thread ]

  57.  
    icon
    Gabriel Tane (profile), Jul 21st, 2011 @ 10:31am

    Re: Re: Re: Re: Re: If I was paranoid ...

    "So you are on a board where tech policy is the major focus and seem to have 'forgotten' about the French three strike law, which is probably the most draconian piracy law on the books? You have a convenient memory when it comes to your sweeping contention that the French government is afraid of its citizens. "
    No, I have a poor memory… there’s a difference. I didn’t purposefully overlook something that was counter to my point… you can tell that by the fact that I said “oops, my bad… you’re right” instead of ignoring your point or trying to drown it out with insults or subject changes.

    And my ‘sweeping contention’? Are you saying that their government does not do as they want (with some exceptions, such as the 3-strikes)? When you look at us, you see time after time AFTER TIME where our government is actively working in the interest of corporations and lobbies (and, shamefully, churches at times) and NOT in our interest. Now look at France… do you see the same thing to the same extent?
    "That's all about the political climate. We currently have social security and Medicare/Medicaid only because it was brought into law in a different era. Today, there's little chance of those being taken away because it is the status quo. "
    I disagree… if enough private health care companies greased enough palms, SS and Medicare/caid would be gone tomorrow. Hell, look at the Federal Income Tax. It was introduced to relieve post-war financial pressures (in a different era) and was only intended to be there for a limited time. Now that the time has long past, there are many who don't want it around (largely, the worker who see's Uncle Sam taking all his/her money). So, if you're right and the political climate ruled the hill, you'd see a lot more politicians campaigning on the promise to do away with income tax.

    Of course, all of that is my opinion and you can agree or disagree; I really don’t care.

    "On this subject, I know what I'm talking about. Having my credibility questioned by the guy who ignores the existence of three strikes legislation in his insistence that the French government fears its electorate is not particularly damning."
    So I'll just take your word for it then? You are anonymously posting a statement about a political group being not just powerless, but completely powerless… and all without a shred of proof to back that up? You don’t even have credibility for me to question in the first place. I don't even have to try to damn that with questions... it does that itself just fine on its own.

    In the end, I no more care about your opinion of me then you care of mine. If you want to argue with insults and condescending derision, that's your call... Others will weigh the value of your statements accordingly.

     

    reply to this | link to this | view in thread ]

  58.  
    icon
    BeeAitch (profile), Jul 21st, 2011 @ 11:21am

    Re:

    Except that robbing a bank is a form of theft and copyright infringement is not.

    Other than comparing apples to oranges, your analogy is spot on.

     

    reply to this | link to this | view in thread ]


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