DOJ Admits Aaron's Prosecution Was Political(tarensk.tumblr.com) |
DOJ Admits Aaron's Prosecution Was Political(tarensk.tumblr.com) |
The fact that something Aaron wrote "played a role" in the prosecution does not mean it was politically motivated.
It's a fundamental principal in our legal system that intent matters. Of course if you are charged with a crime the prosecutors will use whatever evidence they can to try and back their claims of what your intent was.
The HuffPo article explicitly states that this is what is being discussed:
> The "Manifesto," Justice Department representatives told congressional staffers, demonstrated Swartz's malicious intent in downloading documents on a massive scale.
So we're not talking about anything "political" here, they planned to use it as evidence. One can make a strong argument that it's lousy as evidence...but the fact that they planned to use it as evidence does not suggest any sort of political motivations (on it's own)...only that they are bad at selecting evidence for their case.
My comment should absolutely NOT be construed to say it wasn't politically motivated or that it was handled well....I'm strictly speaking about that one little line...you can't use that one line to support an assertion that it was politically motivated, because it's just not valid. Use other information to bolster the case instead.
Context error.
If Bob dies by falling off a bridge while I am grabbing at him, my intent matters a lot. Was it completely an accident, Bob slipped and fell and I tried to pull him back? Or did I hate Bob and plot for months to kill him and was pushing him? From a distance the two things may look the same - it's important to figure out what I was thinking.
But let's say I dislike Bob and even once wrote a blog post about him and his annoying toenail clipping habits several years ago. Some people might even speculate I would not be unhappy if annoying old "Toenail Bob" was dead. I haven't actually done anything to Bob though. Charging me with murder at this point because it is speculated I am thinking about killing Bob and might do so in the future on account of my having complained years ago about his toenail clipping habits would be prosecuting a thought crime. Even if I happen to have bought an axe and rope recently. Or maybe I even stole the axe. What about that? So I could be prosecuted for stealing the axe, that's fair. But prosecute me for killing Toenail Bob because I once disliked his clipping protocols? Claiming that is reasonable to charge people with things they may or may not be thinking of doing but have not actually done because "It's a fundamental principal in our legal system that intent matters." just doesn't make sense. Especially when there's plenty of evidence the axe and rope were for some other purpose, such as I buy a new axe every winter, I need the rope for my spelunking hobby, or I have an established and documented history of downloading large datasets as a professional academic researcher in order to do statistical analysis on them.
It would be more akin to attacking, but not killing, Bob after having publicly declared that "It is a moral imperative that we should kill Bob." You might then be charged with attempted murder. The law[1] recognizes attempt and conspiracy to attempt as crimes, just as it would if you had attempted to or conspired to kill Bob.
This is not "thoughtcrime", either: it still requires you to take a swing at him with your axe.
I have an established and documented history of downloading large datasets as a professional academic researcher in order to do statistical analysis on them.
Consider (again, because I mentioned this in reply to you once before) that Aaron did not make use of his status as an academic researcher when he did what he did. It might have made a good defense had he gone to trial, but it isn't a magic bullet that absolved him of scrutiny for what he was observed doing.
You seem to be rather severely misunderstanding my post - please read it again.
Edit: Sorry, not against you personally jsjunky, it's just that my mind is getting stretch marks from being twisted around. The all caps were it snapping back.
You're talking about something completely unrelated to what I am talking about.
4/5ths of Hacker News believed the day the news about Swartz came out, when we learned about the prison time demand, that this was what was happening. There has been no revelation, unless Taren or one of her peers was at the hearing and learned something different than the Huffington Post.
The DOJ's actions were heavy-handed in a way that has freaked out a lot of people who evidently never realized that the government was like this.
Anyone who has ever gotten a letter from the IRS or has been pulled over by a surly police officer knows well that even though there are laws which apply to everyone fairly, the way those laws are enforced is mostly left up to the discretion of whoever is enforcing them.
Try being an immigrant and dealing with INS officers or a traveler dealing with TSA. Our government has created all kinds of thugs whose job it is to put on a big show of force to intimidate people.
Why are government buildings so big and grand? To create a show of force and make our government seem formidable. Why are there so many ceremonies involving soldiers, government officials, marching, etc. Simply to put on a show and create the impression of solemnity, gravity, and importance.
Governments must continually act to keep the power they have achieved. They do this mostly through propaganda and PR efforts. Every white gloved soldier in a ceremony is a PR stunt. Every wood paneled room, dramatic monument, motorcade, marble building, podium, flag and seal are part of the PR show.
The world is full of greedy people who seek power over others. Whether it's an ambitious Carmen Ortiz or an up-and-coming young congressman or a mild mannered traffic cop. Each seeks to control others as a very significant portion of his/her motivation and life's goal.
Most people who do startups just want to build something and work with interesting technology and so we often forget just what government is. We must wake up and realize that it's about control and force, and now and then the victim of this control and excess is a fellow hacker and we start to take it seriously for a few minutes before we forget about it again. Don't assume that you won't be the target, don't adopt that conservative worldview.
| The same law that says that anyone using a fake
| middle name on Facebook is committing a federal
| felony.
As somebody that took time out of his evening to address your prior comment with what I felt was sincerity and (I hoped) clarity, I'm sorry it came across to you as "snivelly equivocating".
that is just invalid here
It may help you to understand the relevance of intent better if you look at what Taren writes in the footnote: "His lawyers instructed him very strictly that he should never talk about motive with anyone before the trial, as it could play a key role in the defense and they didn’t want the prosecution to get any hint of what line of argument might be used."
As I said in my prior comment: In law, intent (if it can be proven) can make an enormous difference in what you get charged with or convicted of. Far from being invalid here, the importance of someone's intentions in a case like this is exactly why prosecutors would look at Swartz's prior writings and why his lawyers would instruct him not to discuss it.
If I, as a prosecutor, decide to charge you with felony assualt because I don't like the color of your shirt, it simply does not matter that you either A) Slapped someone in the face last year or B) Wrote on your blog that you intended to do it. My case is prima facie invalid - I am not allowed to charge you with felonies because I don't like the color of your shirt or because I don't like your philosopy on government transparency.
Aaron was an idealist that had some idealistic misconceptions about reality. Being an intelligent and nationally famous activist, which he was well on his way to becoming, is not something you can do without ruffling the feathers of some very powerful people. He knew it [1], but his idealism stopped him from understanding what it meant for him, personally. I'll admit I don't know much about "how Washington really works", but I wouldn't be surprised if those with such power over senators have some sway with prosecutors, as well.
1. "You don't just introduce a bill on Monday and pass it unanimously a couple of days later [...] but this time, it was going to happene [...] somehow, and the kind of thing you never see in Washington, the senators had all managed to put their personal differences aside, and come together to support one bill they were persuaded they could all live with, a bill that would censor the internet, and when I saw this, I realized, whoever behind this was good [i.e. powerful]". https://www.youtube.com/watch?v=Fgh2dFngFsg#t=411s
I increased the text size of this post because it started uncomfortably small (for me). Curiosity made me keep increasing the text size until it hit both ends of my browser, then I increased it some more and the text disappeared off the ends. The text did reflow as the size increased, within some internal margin set by the site's style, so it's clearly possible to reflow within the bounds of the window.
Why doesn't it reflow to stay inside the window, and why is this considered good? I vaguely recall that it used to be normal to reflow and keep everything visible.
I checked with FF and Chromium on linux, same behavior.
Developers can turn zooming off on mobile devices by specifying a fixed viewport which obviously upsets a large subset of people. (But then you potentially have the pinch gesture to yourself and it isn't intercepted by the system, but I digress..)
Alternatively percentage based and max-width css can be used on containers and then you can probably start to get the behaviour you're looking for. I'm not 100% sure if browsers will scale max-width. You can probably set pixel widths on containers and use percentage based sizes for fonts, but then a) you're assuming the default font size is 16px forever and b) the results are still going to depend on whether the browser scales text or zooms the entire page.
In this website's case it probably wouldn't be very helpful if the text scaled up without the design going wider, though. Maybe one or two steps but at a point the main column width gets ridiculously narrow.
Oh and obviously you can just never give containers widths, but then you probably get that html 1.0 look where text just goes all the way from one edge of the screen to the other.
I don't think it really is a solvable problem in a way that will make everyone happy all the time.
A lot of people think the Democrats are lot more socially and politically liberal than they really are. Look no further than their repeated reiteration of punitive "War on Drugs" policy. The Democrats play that tune during elections, but it's a scam... as much as the Republicans and their Jesus babble. (Karl Rove is an atheist.) Both parties are absolutely status quo parties. Since the Reagan era, their stances have differed significantly only on hot-button "culture war" issues-- because these issues are really just tools to segment the electorate. On issues that matter to money and power they differ little if at all.
Your comment might be warranted in five to ten years if she does indeed define herself that way.
After a decade, it will be a far fainter association, current trajectories of life being held equal. Beyond that...say after 3 decades? There will be a new generation of whipper snappers saying all sorts of stuff that barely intersect with today's actors. (They will intersect with the issues and choices we make today)
She will not be defined by it unless she chooses to pursue that path.
Do blame them for bringing down the sledge-hammer though.
Specifically, in this case, I do not understand how the shills are hoping to keep justifying the use of the manifesto as proof of intent to distribute the articles, when he has NOT actually distributed them? How can that be possibly relevant?
Or is it the case that we are not only not allowed to read research that we paid for but now are potentially all guilty of thought crimes as well?
Which it very clearly has, or more precisely in this case it can be described as "Abetment to suicide"
There are a million and one worse things perpetrated and supported by this government that they actually do happily admit to and which are actually /really bad/ - i.e. resulting in the murder of tens of thousands innocent children.
I refuse to pity self entitled pricks who should have known what they were doing and taken some responsibility for the relatively tiny consequences of their actions instead of topping themselves.
Disrespectful tone fully intended.
So stop being a chump. Stop voting in the same career politicians from one of two sides of the same political coin. A coin that's entirely beholden to corporate interests and only nominally beholden to the people.
Insanity is doing the same thing over and over again but expecting different results
I think insanity has to do with how one perceives reality, rather than one's aptitude for inferring future results based on past ones. Wouldn't this more aptly be characterized as naivety?
Page 42:
http://www.justice.gov/usao/reading_room/reports/asr2011/11s...
In short: to keep themselves from looking bad.
I wasn't sure, before I read this, that I actually wanted to see Ortiz and Heymann fired. Now I'm starting to think I do. Putting someone in prison just so you don't have to publicly admit that you shouldn't have been prosecuting them in the first place... I can hardly think of a worse reason.
http://news.ycombinator.com/item?id=5264200
Unlike Mashable or Techdirt, WBUR did actual reporting, talking to multiple defense attorneys that handled Ortiz-managed prosecutions, tracking down judges admonishing Ortiz, even finding people who had recommended Ortiz for the post who have since backed away. The WBUR investigation is packed full of details.
They don't paint a pretty picture! There is good reason to be concerned about Ortiz. There are concerns about the way she manages her office, sets up incentives for AUSAs, oversees cases, and handles transparency. The story they build is of a US Attorney appointment that is simply not working out. It's damning enough that I actually started to reconsider whether Heymann was really the root of the problem; if he'd been reporting to a different US Attorney, things might have worked out differently.
The most disquieting thing Ortiz says in the WBUR show is an offhand comment. "It's an adversarial system" she says, defending her aggressive handling of prosecutions. But while that's true at one level (prosecutors are technically & mechanically adversaries of defense attorneys), it's deeply untrue at the level she seems to mean it on. She comes off as believing that her job is to present the most aggressive possible case for conviction and let the judge & jury sort out the truth. But that's not the prosecutor's role in the US! Prosecutors have discretion over what cases they bring and are required to use it. It's very worrying when a US Attorney implies that it's not their job to deploy that discretion.
I'm not sure why you've chosen to attack his comment on these spurious grounds. It'd be more interesting to discuss why it engendered an emotional response from you, or perhaps if you disagree with it then make a coherent criticism of his main point: that there exists a formidable power structure in our society and many of us chose to remain unaware of it.
And which of those things was Carmen Ortiz doing?
One of government's very effective dodges is to point at the truly good things it is doing and playing the hell out of them like they are the bulk of the work. But go look at a budget; how much of the budget of the federal government is actually spent on those things? Even just the discretionary budget? And when you see umpty billion dollars going to the "Justice Department", don't forget that nowhere near all of those umpty billion dollars are actually going to things like that. Only a fraction.
Yes, I acknowledge that I want a police force that adequately protects me. But after decades and decades of bloated growth, that is now no more than a mere sideline of government, not its core task.
One could easily argue that none of the "reputable" news sources you mentioned would report on this because it would be damaging to the administration that they feverishly backed and helped get elected. Regardless of your political views, if mainstream media reported a factual account of what happened to Aaron Swartz, the "warm and fuzzy" image of the Obama administration would go right out the window.
This case is truly disturbing, and it shows prima facie evidence of an extremely dark and hypocritical underbelly to the current administration that I don't think most people believe could possibly exist. Some of the what has gone on in this particular case can only be described as evil, and I'm not sure that even the best PR spinners would be able to spin this in any other way.
Honestly, I look at all my childhood friends who became cops and such and I do see a correlation to their social statuses.
The activist does not strive to get 100% of the vote, only the requisite majority to pass a law, thus forcing the minority to abide by a law it does not support. Consider pre-Brown-v-Board black students who had to follow the law and attend segregated schools. They were in the minority subjected to the will of the majority. The same goes for poor students today who are unable to obtain a school voucher b/c they are in the political minority and so must attend vastly inferior schools.
So my statement is trivially true for all efforts to create legislation that is not unanimously supported, regardless if history decides the majority view is enlightened or backward.
Some people want to start a business so that they can positively change the world. Many people who work for corporations and the govt may have similar aims in life. After all, this may be the only chance at life that you get.
My family comes from a country where the government has little authority (Bangladesh). It's not a good thing. People don't respect the law, and it's a deep moral failing of the country. It's a contemptible characteristic of the people. It's a hindrance to collective prosperity. I note with some amusement that tons of people like my father got the hell out of Bangladesh and moved to a country where he paid much more taxes, where there was much more regulation, much more oversight of society by government. Yet, not very many people seem to want to do the opposite.
In my view, the government is just the gang that drove out all the rival gangs and got rich enough to start laundering its reputation, rewriting history, etc.
Even in 2013, the atrocities committed by the US government are worse than those of nearly any criminal gang in the world. Consider rendition. Consider drone attacks on children.
But notice
http://www.businessinsider.com/a-third-of-people-manipulate-...
with
About A Third Of People Have A Fundamental Desire To Manipulate Others Max Nisen | Dec. 4, 2012, 7:07 PM
So if there is 1/3rd in the general population, the fraction in 'fitting' parts of gumment might be much higher, still not 100% but high enough to underline the grandalf theme.
http://www.wbur.org/2013/02/20/carmen-ortiz-investigation
(Seriously worth a read; even if you skim, be sure to read the case descriptions in full. They're pretty shocking.)
They play the thug, always threatening their own constituents with less services, longer lines, less safety, and if all that doesn't work they go after your freedoms. The insinuate, they investigate, they intimidate.
To use a favorite term of the political class but in a different way, we have a government too big to fail.
Also:
>interpreting breach of ToS as a Federal crime effectively allows companies to set the bar for what is a Federal crime
Reminds me of something Larry Lessig said during his speech last Tuesday: The alternative interpretation is that it's a violation when someone violates code-based restrictions, right? So you're still allowing companies to set the bar for what is a Federal crime, they just have to do it in code instead of in contract. Write some nominal piece of code whose stated purpose is to prevent the thing you want to prohibit, even if it's facile and trivially bypassed, and now bypassing it is apparently back to being a federal crime again. Is this really something we want to allow? Shouldn't the law require prosecutors to prove there was some actual harm before we go throwing people in federal prison?
Sorry to pedant, but a case will typically not get to the Supreme Court at all unless two circuits come to different conclusions.
But, wait, isn't that unworkably fuzzy? Who gets to decide what is reasonable? Ultimately the answer would be a judge or jury of your peers.
I'm not sure what I think about this, but here's a real-world analogy to consider. Suppose I have a storefront, and I keep the doors unlocked, but I put a small sign on the door saying you can't enter unless I've issued you a membership card. Should it be a crime to enter without one? Probably not. Now let's say I get a card reader-based lock, so you can't enter without a card. Even if the lock is easily bypassed (let's say I've left a window open), isn't it reasonable to consider it a crime to do so?
Yes, intent only matters if you've committed a crime, but it's not at all difficult to argue that Swartz probably did commit a felony under the CFAA. If you can't see that, imagine he had downloaded loosely protected private emails or credit card account lists.
You are not saying much here. The CFAA is so broad that one could argue that any Internet user has violated it at one time or another. We might as well pass a law that says, "You are a criminal if the government does not like you."
"If you can't see that, imagine he had downloaded loosely protected private emails or credit card account lists."
Hm, I see where you are going. You are saying that if a business posts a bunch of credit numbers on its website, and says to everyone, "Please only download these numbers one at a time by manually clicking on the links on our website," it should be a felony for someone to write a script that automatically downloads all the numbers.
That said, I agree that since the prosecution was taking the position that it was a crime, it's not surprising or particularly concerning that they were looking at his past statements as evidence for establishing intent. That is a normal and expected thing for prosecutors to do.
However, we now know that he was a target for a political trial, so it was clearly imperative that some 'bad intent' be found to boost the charges to 14 counts with the total of 50 years in prison that had driven him to suicide. Having laws that make an intent alone (to make publicly funded work available to the public) into a crime has made this possible, of course.
Anyone trying to justify this, while making a living off the technological revolution made possible by free exchange of scientific knowledge which Aaron was trying to defend, is a shill in my book.
Respectfully I don't think that's a great argument. That what he did is in the public interest (imo) is central to the issue. You can't just ignore that.
First world problems, in the extreme.
Citation needed
> relatively tiny consequences of their actions
So we can send you to jail for 30 years? It would only be a minor inconvenience if we did so?
The one thing learned from the Vietnam war being made so public seems to be 'control the media better' rather than 'war crimes are wrong'...
Any source of figures I quote is going to be suspect so I invite you to find your own an make your own judgement. I prefer Wikipedia to demonstrate how easily uncovered this information, or at least the suggestion of it is. Some official statements on the matter downplay the issues even by 2 or 3 orders of magnitude...
A quick browse of wikipedia on these matters gives a good overview of how confused the situation is... In particular even US allies do not agree with various statements from inside the US that the number of innocent deaths is as low as 'double figures'.
http://en.wikipedia.org/wiki/Drone_attacks_in_Pakistan
For Iraq I believe the consensus is that civilian Iraqi deaths outweighed US military deaths somewhere between 15 and 250 times. There is a nice table with cited sources again on Wikipedia...
http://en.wikipedia.org/wiki/Casualties_of_the_Iraq_War
The cleanest cut case is perhaps Israel, where many Israeli organisations themselves keep track of figures. I think nobody disagrees that the IDF have killed more Palestinian children, than Israelis in total have ever been killed by Palestinian terror attacks. This is an organisation which is funded in part by US aid at a time when the money could be better spent back home helping the economy...
e.g. http://www.btselem.org/statistics/fatalities/any/by-date-of-...
... and yes, going to prison in the US for 30 years would be an improvement in quality of life for most of the world's population.
There is a reason why the US is so often loathed by Arabs and its nothing to do with Islam, fanaticism or oil...
The whole point is that it's not true! It's just something HuffPo, et al. are spinning out of a much less controversial statement about what evidence they considered to establish intent. The strongly-conclusive headlines do not match the actual story here. Defending the bullshit headlines doesn't make them true--that's not how truth works.
If you look at the law, it's the combination of the actions that we all tend to agree that he did (the downloading and what that entailed) with the (alleged) intent of republishing them that constitutes the crime he was charged with.
Except...no. He wasn't charged with copyright infringement, he was charged with violating the CFAA and wire fraud. How is whether or not he would have subsequently infringed copyright by publishing the papers to the world relevant to whether he committed those crimes?
That's why this is a big deal. The DoJ came in and said "we think he's going to commit a copyright crime after downloading all these papers, look at his politics" but they couldn't prove that (or else why didn't they charge him with it?), so they poked around for something entirely different to charge him with even though their motivation in prosecuting him was to punish him for the thing they couldn't prove he was going to do. Raise your hand if you think that's how prosecution decisions are supposed to be made.
Can you cite any court opinion interpreting the CFAA that says anything resembling that?
>But, wait, isn't that unworkably fuzzy? Who gets to decide what is reasonable? Ultimately the answer would be a judge or jury of your peers.
Or more likely your local prosecutor, since the vast majority of cases never go to trial. And given that, shouldn't we try to do better than "unworkably fuzzy"?
All law is fuzzy because human concepts of morality and right and wrong are fuzzy. That is why we rely on human judges and juries to interpret them.
How about the DMCA prohibition on circumvention of DRM in light of the process set out in 17 U.S.C. 1201(a)(1)(C) regarding the Librarian of Congress exempting DMCA circumvention from criminal liability in specific circumstances. The very existence of the latter admits a violation of your second sentence, because if the law did not prohibit such things in the general case then there could never be anything to request an exemption for. And the possibility of an exemption being granted doesn't disprove the point because any act falling into your category when the "code" is DRM remains prohibited unless an explicit exemption is both applied for and granted, and then renewed every three years. The exemption for jailbreaking phones that recently expired provides a concrete example of that not happening.
>All law is fuzzy because human concepts of morality and right and wrong are fuzzy. That is why we rely on human judges and juries to interpret them.
This is a popular refrain used in response to engineering types who naively expect the law to be so fully specified that it can be subject to mathematical analysis or proved to be internally consistent, etc. And it's true that for pragmatic and practical reasons we can't have laws that are perfectly clear and utterly unambiguous. But that doesn't mean we can't have laws that are more clear and less ambiguous, especially where the starting point is something as overly broad and unclear as the CFAA.
I think you are greatly underestimating the criminal organizations of this world. Look into the Zetas cartel in Mexico, for example. Sure, American military strikes kill civilians, but we don't have a policy of targeting innocent civilians.
Also, don't be deceived and think that "smart" bombs and missles are smart enough to avoid lots of civilian casualties. They may be better than the previous technology was, but they are far from perfect, and considering that they are used outside of an actual war (targeted strikes in mostly civilian areas) there is definitely the deliberate tradeoff being made to commit some very horrible atrocities in the hope that the actual (though still extralegal) target is the one who gets killed.
And, when you consider the horrible regimes we support and fund (yet also turn on when their atrocities are exposed) it becomes clear that the US Government is the largest sponsor of human suffering in the world.
This is too bad, and it's escalated under Obama. Our militarism is out of control to the point where a massive propaganda effort must be used to keep the public supporting it. Smart bombs are actually propaganda bombs, b/c the footage can occasionally be used as part of the "good guy" narrative that is fed to the public.
I'm quite ashamed of this as an American citizen !
He was charged with unauthorized access to a computer network and wire fraud.
Given your idea of what jail means for rich white kids like Aaron though, I'd just like to recommend that you actually look into the U.S. prison system (at worst you'll find out what's actually wrong with it and not have to make stuff up).
When some guy comes to your porch and does not go away, what would you do? Would you try to push him out on the street, or you will chase him with a gun in attempt to put him in a cell? What would you do if the same guy already stepped on your porch and broke your chair? Will you threaten him with death? Or you will ask policemen and court to do that dirty job for you?
Lets say, I steal a wallet from you. You ask policeman to catch me and provide some evidence that I indeed have stolen the wallet. Now policeman chases me and presses to return the wallet. I do not return the wallet. Policeman pushes me to the car, I try to protect myself physically, he takes out a gun and kills me.
If you understand this before calling armed policemen to catch me, how can you "not have intent of murder"? This is exactly what you want: you want to threaten the guy with murder (by yourself or via 3rd party) so he does what you want.
If you are interested in how you can resolve conflicts without being a sadist or murderer, then there are a lot of books on the topic (I recommend http://www.freedomainradio.com/FreeBooks.aspx). However, many people simply blindly assume that by using external force they are "clean" and that the violence is the only way to solve problems when people disagree. Which is, of course, total bullshit and complete intellectual corruption. Because if you have a hard problem and instead of trying to solve it, you take out a gun and then claim that this is the "solution", you are worse than the stupid soldiers. Because you use your intellectual capacity to produce a false justification and gain brutal support from people less smarter than you.
The world is full of greedy people who seek power over others. Whether it's an ambitious Carmen Ortiz or an up-and-coming young congressman or a mild mannered traffic cop. Each seeks to control others as a very significant portion of his/her motivation and life's goal.
That does imply that everyone who ends up in a position of government power does so in order to control other people. That's the problem when someone uses such strident language and paints with such a broad brush - its very easy to just call them out on their lack of nuance and over-generalization
The semantics leave space for people in power to work against that power. It does not imply what you believe it does.
You seem to take issue with questioning power at all.
What you propose is vigilante justice (though without the violence we normally ascribe to it) and though I too am often sympathetic to that, the legal system is not (and we as a society have chosen that on purpose).
The intent is absolutely a factor at the decision to prosecute stage.
You're trying to equate an act in the public interest (freeing academic information), with an act with clear criminal intent (credit card fraud). They simply aren't treated the same way and nor should they be.
The internet includes just as varied a spectrum of activities as does private property, so the implications and consequences of violating the ToS for a given site are, or should be, equally varied.
Edit: removed incorrect example - thanks seebee
The Simple or complex circumvention of rules, which cannot themselves be considered valid expectations of usage, should be weak grounds for prosecution.
It's up to the people who hold the knobs on the incentives to make the changes they want to see.
Outside the government people use peaceful dispute resolution organizations, reputation systems, rating agencies and insurance companies.
Um, yeah. That's exactly the law[1] I am referring to. That's why I linked to it before and why I'll link to it again. Go read it. Because the rest of your comment is just plain ignorant, and please understand: I don't mean that as an insult. You may mean well, but it's really counterproductive to make up your mind about something while remaining untethered to reality.
[1] http://www.law.cornell.edu/uscode/text/18/1030 (You may find the phrase "and with intent" to be relevant to answering both of your questions.)
Edit: squatting was I believe a special case as squatters gained rights as residents. If you are asked to leave and don't, I believe the police could then be asked to remove you.
http://www.roberthjackson.org/the-man/speeches-articles/spee...
In addition to being a Supreme Court justice, Robert Jackson was also Attorney General and also the chief prosecutor at the Nuremburg trials.
The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.
In simple terms, I didn't and don't 'get it', why Obama was elected in 2008 and even more why he was elected in 2012. And I don't 'get it' why so much of the MSM seemed to be part of the Obama campaign.
And in the 2012 election, looking at the map and the states and the counties and the voting in those places, Obama won big on the two coasts and the upper Midwest, that is, heavily in the more wealthy parts of the country. Just why the wealthier people liked him more is beyond me.
If you have some good explanations, maybe start with the MSM and their bias, e.g., pictures of Obama wearing a halo. Then continue with the TARP program: Remember there was TARP I that Paulson did and then TARP II which was very different. For TARP I, that apparently was designed to make a statement to the world that the banks were too strong for a 'run'. So, Paulson stopped massive runs on the banks. And TARP I was paid back in full, or nearly so, ASAP. Wells Fargo didn't want or need the money, but the high interest rate cost their stockholders $2.5 billion. TARP II was very different, a big give away to many small parts of our economy. Yet the MSM never made an issue of the give away and kept talking about TARP I as a Wall Street 'bailout' -- Wells Fargo and others might say that they were ripped off, not 'bailed out'. Besides, everyone who paid back the money can object to 'bail out'. Then there was the $92 billion or so for 'clean, green, pure, pristine' energy, that was almost entirely wasted. $92 billion here and there, and after awhile it adds up to real money. Then there was the real cause of The Great Recession, that is, the housing bubble. The real cause was Congress trying to please the CBC with the CRA and Fannie, Freddie, and FHA backing junk paper and ignoring the bubble and trying to 'spread the home ownership around', and Obama was one of the main leaders in that effort. Then there's the Obama AG .... And there's more. So, the NYT, Time, WaPo, ABC, CBS, NBC, SAI, and more were totally in the tank for Obama. Why?
I'm not trolling or joking or playing politics. Instead, I know I don't understand what happened, e.g., why the MSM and the two coasts and the upper Midwest went for Obama, and want to know why. If I had bet, then I would have lost. I read it wrong, all wrong. You have an explanation?
I can explain it. Obama is no saint but the Republicans are ten times worse. They go on TV and pander to religious extremists, deny evolution and climate change, take absolutist positions on taxes while decrying deficit spending but refusing to touch social security or military spending, adopt comprehensively anti-liberty positions on social issues while paying lip service to small government, use the filibuster and confirmation hearings as bargaining chips against totally unrelated policies, start a bunch of unnecessary wars and promote a police state where the federal government is listening to everyone's conversations without a warrant and I can't even get on a plane without taking off my shoes.
Obama was supposed to have done something about all that. That's why people voted for him. The fact that he hasn't has been sorely disappointing to a great many people -- and the tragedy is, now what do we do to stop it?
In effect, commenting on the Republicans, what is crucial is simpler than your list -- they lost!
For a politically neutral response, all I wanted was good gumment. I'm registered as a D but try to vote just for good gumment. I like my Congressman, and he's R.
But as you will see below, I learned a lot from the two links from antoko.
At times I was shaking my head or screaming or both at some of the Rs talking about 'abortion': Why? Because Roe has been the law for 40 years, and no matter what anyone wants about Roe, there's zip, zilch, zero chance Roe will be changed. So, talking about it is just to get some people up on their hind legs for nothing.
Then the political strategy question is, what were the R gains from the people up on their hind legs? My guess was, negative: The Rs had those people anyway, and talking about abortion just cost the Rs a lot of votes otherwise. E.g., a lot of single women were scared. Then look at the two links and see how the women voted, scared. Maybe talking about abortion got some Rs some $ donations, but I have a tough time believing that that was an issue. Net, I just didn't 'get it' why so many Rs talked so much about abortion. Sure, maybe Rove helped W win an election in Texas that way, but in national politics? Gads.
Places where I wanted better gumment: Fighting two foreign wars for 10 years each. Gumment backing junk housing paper and, thus, blowing the housing bubble that crashed, wiped out financial assets and bank reserves, much as in The Great Depression. Our gumment did it to us. Gumment should have seen it coming and executed a soft landing. Supposedly both Clinton and W saw the problem but concluded that politically they couldn't do anything about it and, then, just hoped for the best. Bummer. What will gumment do next? See a big flu epidemic coming and not tell anyone because gumment leaders don't want to be blamed for the sting of a flu shot needle? I believe that we should be doing more with fission nuke power, but apparently we're not. I just don't think we have gumment nearly as good as we should.
Your question of what to do about it is on target. Of course the short answer is, have people demonstrate, have some politicians take up the positions, and have the voters vote them in. I thought that somewhere between 2008 and 2012 we would have had a few million people on the Mall in DC screaming for better gumment, but we didn't.
On Obama, if take some of his positions, e.g., his SFC interview of his intention to shut down all the coal fired electric generating plants, then 49% of our electric power and 23% of all of our energy (in a DoE report), then I was outraged. But he hasn't done it. To me there is a pattern: He says a lot of things; some of the things please some people, outrage some others, and get ignored by others. Then when that issue is out of the news, he says more things. Next to none of what he says actually leads to corresponding action. So, net his actions have not been nearly as bad as I feared. I still believe that he is a poor president. Then I have to conclude: I'm in the minority or nearly so -- he is still relatively popular. I don't see just why, but he is. Then this comes back to your issue of how to get better gumment: As long as Obama is as popular as he is, I don't see much hope for big demonstrations for something better. If nothing else really bad happens, then he will be able to have served for 8 years and leave often regarded as at least an okay president. So, our chances for something a lot better don't look good.
Then for the Rs, from the noise I hear from them on how to do better next time, I don't hear much that looks like it will win elections. Instead, the Rs are still talking to themselves about what their right wing dreams of and ignoring everyone else. I don't think that what they are saying is really good gumment, and I think it will lose in elections.
For the biased MSM, I don't have a clue what they will do.
To me, the saving grace is our founding fathers and our Constitution and, in particular, that the Rs have the House and the Ds have the Senate so that there is 'grid lock' and not much gets through and there's lots of talk that doesn't mean anything. In particular, Obama can ask Congress for anything he wants, but he will have a tough time getting back even a resolution in favor of apple pie. So, such grid lock is not good gumment but not the worst thing that could happen.
However I'd just say rather than looking at maps and guessing about wealth distribution you can just look at the exit poll data.
Source: http://www.foxnews.com/politics/elections/2012-exit-poll
Google gave me fox news, but exit polls are exit polls so I'm willing to go along with it. :)
Nice data. Basically Obama won only among people with less than $50 K a year.
Wow! The exit poll data is amazing -- the poor, the non-whites, the women, the less educated except Obama also won the postgraduate crowd! Amazing.
Partly you are correct about my error in geography. But there is still an issue: Romney won in a lot of the less wealthy geography -- as I recall, Kentucky, Tennessee.
Maybe the Romney 49% comment was a more serious torpedo below his waterline than I estimated.
In simple terms, the Republicans were too happy with themselves and 'conservative principles' and just seriously failed to 'please enough of the real customers'.
But I still don't quite get the MSM bias: The MSM, especially the 'good demographics' the advertisers want, and from the data in your two links, should have an audience that voted for Romney. My only guess about the MSM is that it is populated by people who are totally interested in gumment and, thus, want to see more gumment and gumment do more and, thus, are for the Democrats. But at least for much of the campaign, Fox News had ratings that no doubt meant that the biased MSM outlets lost a lot of money, and I'm surprised that the biased MSM 'suits' upstairs would put up with that.
Looks like the Republicans have to get out of conservative country clubs and get with more of the real people, and some investors can do some MSM takeovers and make some big bucks.
Thanks.
http://threads2.scripting.com/2012/december/cynicismAmongRep...
They do deny most such petitions, though, and resolving circuit splits is one reason they might grant cert.
I don't see how that is inconsistent with what I posted.
It isn't a requirement that there be a circuit split before the Supreme Court will take a case. You're certainly right that a circuit split makes it a lot more likely they'll take it, but that doesn't make it a prerequisite. They've been known to take important cases of first impression without it. If we're going to be pedants then we have to be pedantic, right?
I see what you're getting at with civil disobedience though... I suppose the difference is in scope and scale.
Someone passively resisting a bad law can certainly be said to not be a vigilante; they're not actively trying to to bring about their desired brand of justice, they are simply refusing to comply with the current legal version of it.
One would not expect to bring out change only by themselves via civil disobedience, it's power comes from being applied across a group of people. Vigilante justice is different; you simply fix whatever situation is unjust.
If Aaron had simply complied with his own manifesto (e.g. downloading an article at a time, organizing others to download articles, etc.) I think we could safely say he was simply being civilly disobedient.
But he kicked it up a notch. He used technology to speed up his extraction of the entire JSTOR database. He evaded network blocks in the process. When he finally could go no farther on Wifi he hooked his computer directly within the assumed-safe MIT subnet. In short, civil disobedience was taking too long for him and he decided to escalate.
So even if one agrees substantially with his desire for open access I hope it is understandable why people might disagree with his methods, and furthermore to understand why the legal system would disagree. We as a society have deliberately chosen to punish vigilantism because it breeds a world where justice applies only to those strong enough to enforce their worldview.
Although Aaron was not physically violent he certainly had a leg up on 99.9% of the rest of the U.S. population with regard to "cyberskills", does he not? If I stole a million cars and returned them without a scratch to their rightful owner in order to achieve some desirable positive goal I would still get in trouble, because I am not Caesar and therefore don't get to decide which laws do and do not apply to me (however virtuous I might be as a person).
We can debate about misdemeanor or felony, whether 3 months of prison or no jail time at all is appropriate but people seem to be shocked and amazed that the legal system would have taken an interest at all in this case, and I just don't understand why people think that.
My comment advocated neither. I merely pointed out that pubic prosecutions should only proceed if they are in the public interest. Hardly that radical.
It is not wrong to make a fuss about it, because it draws attention to bigger problems more than similar cases have. The CFAA is overly broad and can be used to prosecute almost anyone -- but it was not until Aaron's death that anyone cared. Prosecutors routinely pile on charges to intimidate defendants, but nobody cared until recently. While it is not as widespread as the superbowl, this case has received attention from people who usually ignore such things.
You know when there's enough fuss? When you can see actual change, a problem being solved.
so yeah, i would like to bake the cake and ice it before i go about putting the cherry on top.
Still, personal feelings are largely irrelevant here - its pretty incredible to me that anyone can give a shit about this with, e.g. gun laws that enable the US to be responsible for 95% of child death by gun outside of warzones for instance. Changing that law will save thousands of children from death - I consider that infinitely more important than some kind of maybe, possibly a potential restriction on freedom if you want to interpret it that way...
Incidentally I find it interesting how this comment has been controversial - I was expecting it to be downvoted to death because it is obviously offensive and callous, but it has received quite a few more up votes than down.
I'm going to go out on a limb here and guess that you've never so much as had to fight for your survival, let alone face what appears to be certain death.
Everything is relative. This is why I have a seriously hard time showing any pity or tolerance with this...
So, political prosecution, facing jail-time for something pretty innocent, and you can't find the least bit of pity because nobody's threatening to kill him?
I'd suggest developing some empathy, it will make you more successful in business and more importantly will improve your life.
FWIW, I weakly agree with your basic point that this gets a disproportionate amount of play compared to other injustices, but you're not presenting it well.
Sure, everyone agrees on the tautology, just like no one in Washington claims to like "Big Government" or wasteful spending.
If one considers it in the public interest to ensure that those with advanced computer skills do not use those skills to essentially write their own laws, then it's not hard to see why prosecutors like Ortiz and Heymann would consider it necessary to bring charges against Swartz.
It's "cybercrime", which they are responsible for prosecuting, the suspect has a manifesto indicating that this won't just be a one-off affair, the suspect has in fact done stuff like this before at a lesser scale, etc. etc.
Now you or I might say that it's all for a good cause and that we can trust Aaron not to do anything actually seriously malicious, but I can also see why a reasonable Federal prosecutor just doing their job would not agree.
That's not to say Ortiz has clean hands on all of this, just that there really is a plausible "public interest" reasoning to charging Swartz with something. If Swartz were allowed to continue unfettered where would it end (when you answer this remember that you're a lawyer, not a computer expert)?
It's easy to say that IP law is stupid in a world of patent trolls and continuously-expanding copyright for corporations but that doesn't mean the right answer is to burn the whole building down.
For instance, how did Swartz verify that he only downloaded publicly-funded articles? How much collateral damage is acceptable in the name of Open Access?
Swartz may have had answers to all these questions but they're questions none-the-less, and questions I would expect that a reasonable U.S. prosecutor might have as well.
I am saying that the possibility of re-offending is one of the things a prosecutor has to consider when judging the public interest, especially in a resource-constrained environment.
Had he downloaded them all individually he might have retained that right. As it stands, MIT and JSTOR both took action to remove his specific permission to do so, so it is incorrect to say that he had permission to download anything from JSTOR after his download permissions were removed.
He should be prosecuted for repeatedly gaining unauthorized access to a computer network that he had no permission to be on. The manifesto simply shows to the prosecutors why he was doing that in the first place, and why he wasn't just some bored MIT student on a pen testing spree.