
Aaron Swartz v. United States - edsu
http://blogs.law.harvard.edu/sj/2011/07/24/aaron-swartz-v-united-states/
======
pmb
This whole thing weirds me out. Here we are on Hacker News, and yet there is a
super-large contingent of people going "Well, he DID technically commit a
victimless crime...".

So yes - he did do something that was against some terms of service. But jail
time? For breaking a clickthrough "license" and computer hacking at MIT in the
service of public knowledge? This sucks unutterably.

MIT: Playful physical hacks okay, but don't try to mass harvest the knowledge
of the world or the DOJ will come down on you like a sledgehammer.

JSTOR: All the world's knowledge, as long as you don't try to access all of
it.

DOJ: We'll break you just because we can (or for other reasons that we are not
stating).

Hacker News: Well, they do have a point - he did access semi-public data in a
non-approved way, and he had to plug into the network in a strange way to do
it.

~~~
gavinlynch
And doesn't the (alleged) fact remain that he continuously circumvented
virtual and physical security systems in order to mirror a reported $1.5
million worth of assets in to his personal possession?

When you boil it down it doesn't exactly sound like he should be receiving 10
hours of commuter service because he ran wget a few times. MIT and DoJ are
just supposed to -assume- that he has nothing but perfectly angelic intentions
with $1.5 millions dollars of an asset that he secretly obtained? I don't make
that logical leap with you guys. The facts will come out. He will present his
case with his defense team, and hopefully justice will be done.

~~~
salvadors
> MIT and DoJ are just supposed to -assume- that he has nothing but perfectly
> angelic intentions with $1.5 millions dollars of an asset that he secretly
> obtained?

Yes. That's known as "innocent until proven guilty".

~~~
gavinlynch
Let me rephrase that: They are supposed to -ignore- an action they are aware
of that they believe constitutes criminal conduct? Prosecutors, DoJ don't drop
cases they think they can bring to trial when, in their perception, illegal
activity is taking place just on a hunch. Right?

~~~
salvadors
No, but they're meant to have a good faith belief that they can actually make
the case.

[http://www.litigationandtrial.com/2011/07/articles/series/sp...](http://www.litigationandtrial.com/2011/07/articles/series/special-
comment/aaron-swartz-computer-fraud-indictment/) examines in some detail why
they probably don't.

------
ender7
I don't understand why people are bringing issues of the availability of
scientific journalism into this. I agree that the prices and paywalls involves
are ridiculous and a bad idea for a variety of reasons, but that seems
orthogonal to the issue here.

I don't think anyone is denying that Swartz committed a (possible series of)
minor crimes. Claiming that "information should be free" doesn't stop them
from being crimes. What's shocking is the response from the government, which
appears to be using this incident for its own purposes rather than to preserve
the rule of law. No one seems to really be asking _why_ this is happening, and
I think that is by far the more interesting question. Is the justice
department trying to expand its reach, as the article suggests? Is this a
deterrent for future "hackers"? Has one of Swartz's numerous hornet nest-
kickings pissed off someone high up, who wants him removed from the playing
field?

~~~
tptacek
If there's evidence yet to come that Swartz intended to anonymously push the
corpus he took from JSTOR up to BitTorrent, the crime is no longer minor.

I think I share Swartz's politics, but I'd like to believe that law
enforcement would at least take a plan like that seriously.

On the other hand, it's equally possible that there is no evidence Swartz was
going to publish what he took from JSTOR, and that instead the DoJ is upset
about the PACER incident, which it couldn't prosecute, and jumped on this
case, which it clearly can prosecute.

Swartz is lucky to have such well connected and influential friends.

~~~
makmanalp
As a tangent, isn't it scary that you can effectively piss off entities such
as the DoJ and they can hold a grudge against you?

Or from the article:

> Attorney Jerry Cohen, a Boston IP lawyer, suggests this aggressive use of
> criminal charges rather than civil charges is part of a trend in government
> prosecution of such cases, like taking “a sledgehammer to drive a thumb
> tack… It’s intended to terrorize the person who’s indicted and others who
> might be thinking of the same thing.“

Is it even legally okay to publicly make an example of someone like that?

~~~
tptacek
I guess. What do you expect? They're people just like everyone else. This
isn't one of those "1,001 crimes you can commit in the morning while making
orange juice" things from Reason magazine. Aaron went way out of his way to
expose himself to this situation. It's possible that where you see an Internet
folk hero, the DoJ sees someone bent on forcibly publishing every closed
database pertaining to the public interest, laws be damned.†

Let me add something else that I think some other HN people may be familiar
with:

My Confirmation sponsor is/was a criminal court judge (friend of the family).
Very nice guy. Spectacularly nice guy. I babysat his kids once. I've seen him
maybe twice in the past ten years, but I'd be surprised if he didn't remember
the names of my kids. When I was younger, we saw him all the time. Every
weekend. My dad played in the church folk group with him.

I can't remember the particulars, it may have been 4th of July firecrackers
(illegal in Chicago) or it may have been shaving cream on Halloween, but
either way he caught me and some friends doing something technically illegal.
It was NOT. OK. I remember the legality of the incident being taken VERY.
SERIOUSLY. Entirely different demeanor. I've seen the same thing with friends'
cop dads.

I think people on HN don't fully appreciate the extent to which prosecutors
and judges take the law seriously. They've dedicated their life to it. Our
country is ruled by laws.

There are definitely times when the law is wrong, or when its diligent
enforcement doesn't ultimately serve the social good. This may very well be
one of them. But I think it's a very bad idea to build a worldview around the
notion that the criminal justice system is going to casually look past the
law. The law is a big deal.

† _I don't know Aaron Swartz personally and am not asserting any of this to be
true._

†† _To your later edit: there's no statute against "public example making". If
you don't want to be an example, avoid felonies. That's going to get me
downvoted, so can we assume good faith and accept this new emoticon I just
made up: :# > as shorthand for "I don't really think the person we're talking
about is culpable for a felony based on the information we currently have"?
:#>! :#>! :#>!_

~~~
rdouble
_I think people on HN don't fully appreciate the extent to which prosecutors
and judges take the law seriously._

On the other hand, a relative is a DA. She has explained how around the
holidays, she collaborates with the prosecutor to ram cases through the system
or slap people on the wrist and send them home. This way all the noble
guardians of the law can take an extra few weeks off between Thanksgiving and
Christmas.

~~~
tptacek
I said they were people, and people who had dedicated their lives to the idea
of the law. I did not say they were superhuman. They can be wrong and have
faulty judgement. In fact, I feel like I went out of my way not to ascribe
moral judgement on their worldview; I simply wanted to point out that their
worldview exists and shouldn't be ignored if you plan on operating at the
frontier of the law.

It's good of you to point out the limitations of that worldview. I don't mean
to criticize you. I'm just saying, be careful if you think that a charge of
"hypocrisy" is going to help here. The real world is not an Internet message
board argument. Lots of prosecutors, all of them riven with human frailties,
nonetheless believe passionately in the law. You're not going to talk them out
of it.

I am for the most part happy about this. Unlike a lot of HN people, I think
that the law by and large serves the common good, and protects the weak far
more than the powerful.

(My uncle was/is? an ADA. I didn't hear any stories like this, but didn't ask.
Totally believe it though.)

~~~
rdouble
My point is not a charge of hypocrisy, I just think the language you are using
imparts a phony gravitas. I'm a systems engineer but I would LOL if I read
that someone wrote I "dedicated my life to the spirit of the command line."
Likewise, many lawyers are just in it because it's something they are good at
and it pays the bills. Not every lawyer is Harvey Silverglate.

~~~
tptacek
I'm really not trying to impute gravitas. I am being completely serious. These
people we're talking about at the DoJ are _different people_ when matters of
law come up. They are not kidding around about it.

That doesn't make them granite monuments to justice. But it might mitigate the
concern that they're being petty. There is a reasonable narrative here in
which Swartz is purposefully causing harm to the social good. I don't really
agree with that narrative (based on what we know now), but I can see it.

If it helps, think about pro-life people (I'm pro-choice) and their attitude
towards abortion. They are not kidding around about that issue. Do they have a
lot of gravitas to you? Maybe not! But they believe human beings are being
killed. So I can see where they're coming from, even though I disagree with
them.

~~~
rdouble
Yes, in this particular case you are right. This case is interesting because
Aaron is doing this as an "activist" and as such it becomes political-legal
theatre. He is friends with a bunch of lawyers and legal researchers who are
working at the intersection of IP rights and freedom of information rights.

If he was just some nobody kid in Schaumburg stealing PDFs from Motorola, he'd
either be in jail already or slapped on the wrist and sent home. Nobody would
have heard about it, and there'd be no internet dialectic about it.

~~~
tptacek
We don't really know if this was an "activist" crime.

It's very possible that he just intended to analyze the documents and publish
aggregated results. If that's the case, I think this prosecution is a mistake;
an extreme overreaction. Scholarly analysis of JSTOR documents is not a
criminal intent. His actions may leave him culpable to a variety of minor
crimes, but his impact on the social good is minimal at worst.

On the other hand, it's possible (though less likely, I think) that the intent
here was to mirror JSTOR onto BitTorrent. I might sympathize with this goal,
but I don't think its prosecution as wire fraud is an overreaction. I'll root
for Aaron at trial, though.

~~~
lukeschlather
The problem with that analysis is that there's nothing criminal (or even
illegal) about sharing public domain works over BitTorrent. So whether he
copied the documents for personal use or distribution, it was still the
initial copying that was at fault.

It's a little like someone broke into a library every night for a few months
and scanned a bunch of public domain books.

The only actual crimes are breaking and entering, and using the scanning
equipment without authorization. What he intended to do with the scans is
irrelevant.

~~~
tptacek
JSTOR's particular collection of documents is protected by copyright and has
been valued, by virtually every one of the most learned and respected
educational institutions in the country, at millions of dollars annually.

Let's say I come into possession of a trove of public domain documents from
the 1800s, and I take the time to scan every one of them painstakingly and
from those scans to assemble an academically useful database, for which I
charge $100/person/year for access. Your contention is that because the
underlying documents are public domain, you are entitled to unfettered access
to my work product, despite the fact that I took steps to gate access to my
work product.

The law isn't going to see it that way, I don't think. But maybe you're right.
I'm not a lawyer.

Like everyone else on HN, I wish all these documents were freely available
too.

~~~
jcarreiro
> JSTOR's particular collection of documents is protected by copyright

We've discussed this on HN before. Reproductions of public domain works are
not protected by copyright.

Edit: Of course a significant portion of JSTOR's archive does consist of
copyrighted works.

~~~
tptacek
I thought collection copyright applied, but am happy to be wrong about that.

~~~
jcarreiro
There is a "collective works" copyright, so I guess -- I am also not a lawyer
-- that if one made a copy of some database, it may be infringing on the
creator's rights even if the contents of the database consisted solely of
public domain works.

So I think you are correct.

~~~
lukeschlather
[http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/...](http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter8/8-a.html)

>You are free to copy and use individual images but copying and distributing
the complete collection may infringe what is known as the “collective works”
copyright. Collections of public domain material will be protected if the
person who created it has used creativity in the choices and organization of
the public domain material. This usually involves some unique selection
process, for example, a poetry scholar compiling a book -- The Greatest Poems
of e.e. cummings.

I don't think JSTOR is using what could be described as a unique selection
process.

------
mark_l_watson
Empires in decline get progressively more brutal. Sounds like Aaron Swartz
became an embarrassment so is being side-tracked from the good work he does.

I am not 100% sure of this, but I think this is probably true: similar to the
case of Eliot Spitzer who as governor of NY was investigating Wall Street. So,
I think that Wall Street had their lackey the US Government (via the FBI) dig
up something on Spitzer to bring him down. I believe that this situation is
called a plutarchy.

~~~
tptacek
This is tinfoil-hat stuff. Governors who frequent prostitutes can't expect to
stay in office, full stop. The likelihood that Swartz does a single overnight
in custody over this is practically nil. The brutality we are arguing about
here is the possibility of him ending up with a felony on his record.

~~~
jordanb
To be honest, Swartz is independently wealthy so he won't have to worry about
the felony impacting his ability to work for a living.

In his post-liquidity-event career as an activist, a felony conviction will
serve nicely as a bona-fide.

So the only real downside for Swartz in this is that he spends time in jail,
which as you say is quite unlikely.

~~~
tptacek
One wouldn't want to downplay the badness of having a felony record. For
instance, Swartz may imagine one day running for office, or being a key person
in a political campaign. Or needing to work directly with institutional
investors.

~~~
nhangen
Makes getting any sort of security clearance a no-go. No buying weapons, etc.

~~~
puredemo
Or, you know, voting.

------
lisper
To paraphrase Feynman, this might have some relevance to the situation:

"...he also worked with Shireen Barday at Stanford Law School to assess
“problems with remunerated research” in law review articles (i.e., articles
funded by corporations, sometimes to help them in ongoing legal battles), by
downloading and analyzing over 400,000 law review articles to determine the
source of their funding. The results were published in the Stanford Law
Review."

~~~
tptacek
I speculate that Pacer is more relevant: during a trial run of free public
access to Pacer, Swartz is alleged to have mirrored almost 20% of the
database; as (it is alleged) a result, the public trial of Pacer was shut down
and an investigation launched into the security of the Pacer system.

One possible narrative inside the DoJ: we can't launch public trials of open
access to databases, because this Aaron Swartz guy has decided that his Python
code will have the final say in any policy decisions we make. But that's not
for him to decide! And here he is again, taking the same approach, this time
to a commercial database that produces 7 figure annual recurring revenues.

I don't agree with this mindset (:#>! :#>!) but I'd understand it.

~~~
djeikyb
Fwiw: JSTOR is non-profit, not commercial.

------
perfunctory
> ... and Aaron faces a possible fine and up to _35_ years in prison, with
> trial set for September.

<http://www.bbc.co.uk/news/world-europe-14270655>

> Under Norwegian law, Mr Breivik faces a maximum of _21_ years in jail if
> convicted...

WTF.

~~~
scythe
Two different law systems, two different legal philosophies. In the Nordic
model, prison is largely rehabilitative. I don't think they even _give_ life
sentences. In America, prison is decidedly punitive, with little thought to
rehabilitation, and the death penalty is commonplace.

~~~
carbonica
"the death penalty is commonplace."

This is why you're being downvoted so heavily, in case you were wondering.
Such flamebait is not appropriate.

~~~
scythe
>Such flamebait is not appropriate.

In this particular case, the death penalty is _relatively_ commonplace. As in,
using OECD as a benchmark, the US executes more people than the average OECD
member. I wanted to illustrate the contrast between the American and Norwegian
legal systems, not make a statement about the use or validity of the death
penalty.

[http://en.wikipedia.org/wiki/Death_penalty#Global_distributi...](http://en.wikipedia.org/wiki/Death_penalty#Global_distribution)

~~~
carbonica
Then it would be appropriate to say "the United States executes prisoners
while Norway doesn't." That makes the point fine.

Car crashes are commonplace here. Drunk driving accidents are. Executions
occur less often than once a week in the US, mostly in a few select states,
and the US has a population of over _300 million people_. We (I'm from the US)
even have a disproportionately large prison population and the death penalty
is still extremely, extremely rare.

~~~
blots
That there is death penalty at all is already pretty barbaric and outdated.

------
there
shouldn't that be _United States v. Aaron Swartz_ because the US is bringing
charges against him? _Aaron Swartz v. United States_ makes it sound like he is
suing the government, but there's nothing on that page that says he is.

~~~
davorak
Yes it should, I read the title and thought there might be an interesting new
twist when there was not.

------
jrockway
Why aren't Google and Bing going to prison every time one of their bots
crashes some web server?

(Perhaps because "systematic downloading" isn't actually a crime?)

~~~
gavinlynch
When Google and Bing start sending 'human bots' out to Universities to
facilitate the downloading of data, I'm pretty sure a lot of people will be
going to jail. Just saying.

~~~
tptacek
Didn't Google recently get in a bunch of trouble recently for capturing raw
data from public wifi networks?

~~~
gavinlynch
To me, there is no comparison. Inadvertantly capturing a few random packets
from open, public Wifi signals while driving down the road? They changed wifi
channels about 5 times a second. All investigations that I have read concluded
that no meaningful data was retrieved.

And to compare that to specifically circumventing physical and virtual
restrictions after warning the user against a set of actions? Where the target
data was not worthless, as in Google's case, but worth over $1 million
dollars?

I don't see the comparison.

~~~
ajays
It wasn't inadvertent. It was by design. Lets get that straight. If, for
example, you're running tcpdump(1) with a packet capture size of 1500 (I don't
know if G was doing that, but I'm giving an example), then you can't claim
that you captured the packets' contents inadvertently.

Many years ago, when writing web crawlers was the cool thing to do, I wrote
one (like an idiot, I wanted to see how deep the web was). Unfortunately, I
didn't have a good synchronization scheme, so it ended up beating on a poor
website for too long. The operator of that site sent a stern email to our DNS
contacts, complaining. And we shut the crawler down. Today, I fear I'd be
indicted for "wire fraud"!

------
anigbrowl
So he's suing the United States now, eh? Because usually the first person
named is the complainant. Getting the simplest and most basic details wrong
like this is a reliable indicator that everything which comes afterwards is
going to be similarly ill-founded. This is a prime example of the yawning gulf
between blogging and proper journalism.

Kindly do not misread that as support for the legal _status quo_ , JSTOR, or
anything else.

------
mildweed
Regardless of who was hosting them before and how much their hosting costs
were that were used to justify the paywall, Google Scholar should be brought
in to host them all going forward. They're out in the open, might as well put
them to good use.

~~~
lukeschlather
The NSF should host them free of charge. We shouldn't expect a private money-
making corporation to host them as a public service.

------
darksaga
Well, Mr.Swartz should probably thank Anonymous and Lulsec for provoking the
US Government. They're fed up and have determined whoever they get their hands
on (minor hacking or not) they're going to drag you into federal court and
make an example out of them.

This reminds of back in the 90's when there wasn't any laws in place to
address hacking. But man, the Feds did not like kids making them look like
fools. Once they got the laws of the books, it was open season on hackers.

I'm pretty sure the next few years are going to see a major crackdown on
hacking again. Just like the recent arrests of supposed Lulsec and Anon
members.

This guy will be lucky to get out of federal prison in 15 years.

------
mrich
To me this looks like a career move by the prosecutor who wants to get some
convicted hackers on his CV, which will look good when it comes to promotion
time as these crimes get more and more relevant. The US justice system seems
to have degenerated so that prosecutors do anything to get some people
convicted, as long as they are a) popular or b) it helps them in some way,
regardless of the quality of thee evidence or the merit of prosecution to the
general public.

------
plainOldText
I'm super curious to know if there is someone else out there who believes that
there is a connection between Aaron's political activism and his indictment.
Not that his political views would represent the major cause of his
indictment, but still. Anyway, just ranting...

------
mrschwabe
We must evolve & develop economic & political systems that eliminate the
government's authority to railroad a person like this. It's disturbing and a
blatant flaw in a free nation.

------
kgo
I'm just curious why someone who did this is still a fellow at a center for
_ethics_. It seems like the whole situation, even if it's been cleared up with
MIT and JSTOR, is completely unethical, regardless of the legal case.

Is the position tenured?

~~~
thomaslangston
Could you comment more expansively on why you find this situation unethical?
If so, can refrain from leaning on the legality of the situation. I haven't
heard a good explanation that didn't use the legal ramifications as a central
support.

------
anonymous246
Nice spin: he's been charged for "excessive downloading".

Way to ignore the physical break-in to install a computer directly on a
network switch. I, for one, hope that he gets a criminal record at the very
least (plea deal). This really puts the crime in a different league.

Unless I have my facts wrong, in which I'm willing to be corrected.

~~~
sp332
Well, a physical break-in would be a matter for the local police, maybe state.
Federal prosecutors don't get involved with those cases unless it's the
Pentagon or something.

This is only at the federal level because the "unauthorized access" crossed
state lines. (Aaron was at MIT when he was knocking over JSTOR servers,
probably in NYC.) So the prosecutor is only going to worry about that part.

~~~
tptacek
I don't get why I'm expected to care about whether local or federal employees
take an interest in the event. The state criminal court system isn't warm and
fuzzy either.

~~~
sp332
He said "way to ignore the physical break-in" and I'm pointing out that
federal prosecutors (almost) always ignore physical break-ins. It's not a
federal crime.

~~~
tptacek
I take your point, but I'd like to point out that it's a side track. It gives
the impression that you don't want to talk about whether a crime happened, and
instead focus on the purported injustice of federal involvement. Well, what's
unjust about that? That the DoJ and federal court system is more severe than
Massachusetts?

~~~
sciurus
It's not a side track to point out that he should be charged with one set of
crimes by the state government, but that he is instead being charged with a
different set of crimes (Wire Fraud, Computer Fraud, Unlawfully Obtaining
Information from a Protected Computer, Recklessly Damaging a Protected
Computer) by the federal government.

~~~
tptacek
You think MA doesn't have computer crime statutes? The subtext to this thread
seems to be "if they charged him locally they'd only be able to get him on
trespassing". Uh, no.

~~~
timsally
There is a difference with charging him locally though (in my mind). The
attorneys that would prosecute Aaron in MA were hired by a left government
accountable to a fairly liberal population. Those prosecuting Schwartz
federally were hired by a government that leans slightly to the right. I
honestly think that makes a difference in the outcome of this particular case,
given the nature of the crimes. Also when we consider Aaron's personal
history, I think it's safe to say he has fairly influential friends in MA and
possibly some enemies on the federal level.

All of this is pure conjecture and speculation of course. But I would be lying
if I said I wouldn't be more comfortable about the situation if Aaron was
being tried by the MA government.

~~~
tptacek
I see what you're coming from but I don't really buy it. I think the
difference between federal and state is strictness and deliberation, not right
vs. left.

The state criminal justice systems are deluged by drug violence and domestic
violence and are largely reactive (I write while missing the court date for my
mugger's prosecution, due to a sick daughter).

The federal system is more deliberate (word chosen carefully) and somewhat
less reactive. It has more discretion about what cases to chase down. It's
probably more inclined to keep its teeth sunk into anything it starts too.

The same political environment that appointed this prosecutor also appointed
the prosecutor that took down Scooter Libby.

~~~
timsally
Re: left vs. right and deliberation: that seems reasonable. Also sorry about
the mugging. :( Still though, that doesn't address the advantage Aaron has in
MA in terms of friends and enemies. And as far as public support is concerned,
you can be sure that a good number of the people that support Aaron have ties
to MA or Cambridge. When we talking about a couple thousand people, that goes
a lot farther on the local level than on the federal level I think. A speech
by a group of MIT and Harvard professors for example might make a difference
in MA but surly doesn't have that big of an impact nationally. Perhaps I am
seeing differences where there are none though. ^^

~~~
tptacek
The mugging was almost fun. Makes for a great story.

------
rokhayakebe
Correction: Aaron Swartz v Some Powerful Politicians or People Who Are Afraid
Of What Playing With This Data May Reveal.

