
The Truth About Aaron Swartz's "Crime" - secalex
http://unhandled.com/2013/01/12/the-truth-about-aaron-swartzs-crime/
======
ghshephard
I wasn't aware the closet was unlocked. And apparently used by a homeless guy
to store his stuff. So, even the _bare_ minimum real crime that I thought he
was guilty of (Breaking into a closet) which is a crime serviceable by
community service in this context - turns out not to have occurred.

I've been sad all morning. Reading this article just makes me angry.

~~~
theevocater
Not only that but the _actual_ trespassing charge was dropped. So it wasn't
even part of the case!

~~~
danso
I didn't even realize that. The most salacious and unsympathetic of the
allegations is how Swartz got physical access...othherwise, how different is
what he did than what people who go to Starbucks and torrent illegally? Just
magnitude?

~~~
MichaelSalib
Starbucks torrenters generally don't cause a community of 20,000 scholars to
lose access to a major journal archive for days at a time. And they generally
don't require university staff to burn hours trying to hunt down hidden
machines that are disrupting their network.

~~~
zapdrive
Apparently, the MIT and/or JSTOR staff took down the service themselves when
they detected the mass downloads. It was not Aaron's "attack" that brought
down the access.

~~~
MichaelSalib
So what? Aaron violated MIT's policies and JSTOR's policies and the result was
that a large community of scholars lost access. Those scholars would have had
access if Aaron hadn't done what he did.

~~~
jlgreco
The only harm was manufactured by the "victims". Were it not for the "victims"
manufacturing this harm, they would not be called victims at all. They
essentially bootstrapped their own victim-hood. If you don't see why that is
relevant in an ethical consideration of his actions, then I cannot help you.

~~~
MichaelSalib
This is taking victim blaming to new heights. Is it now the victim's fault
they don't acquiesce to a lawbreakers' demands? Doesn't MIT have the right to
decide who is allowed to use their network and in what manner?

Can I break into your home and use your internet connection as I see fit
without your complaint?

~~~
jlgreco
Is it similarly victim blaming when people call shit on the RIAA for claiming
thousands of dollars of damages per mp3? Give me a break, and knock it off
with the emotionally charged language. MIT isn't the victim of domestic abuse
or sexual assault.

> _Can I break into your home and use your internet connection as I see fit
> without your complaint?_

They dropped the trespassing charges, the only charges that had merit.

~~~
MichaelSalib
But if I broke into your house and used your internet connection, the only
harm would come from you, the "victim", objecting to my behavior. You'd be
bootstrapping your own victimhood, right?

~~~
jlgreco
If I were choosing to object to you on the grounds that you trespassed, then
no.

If I were to _drop the trespassing charges_ and choose to object on the
grounds that I had to throw out my router because you used it, then I would
indeed be manufacturing victomhood.

I'll repeat myself. _They dropped the trespassing charges._

------
zaidf
To people wondering if prosecutors have a choice, they absolutely do. I was
recipient of an NSF check of over $10,000 from a guy with a history of writing
bad checks(a criminal offense). It is a clear cut case with ample proof and
victims. Yet the DA's office in neither NYC or San Francisco has taken action
against him for over a year.

Meanwhile the guy continues to scam more and more people, pushing one woman to
brink of shutting down her business. I know because I made a
site(<http://cliffkaplanfraud.com>) and the stories that trickle in are gut
wrenching and infuriating.

So yes, the DA's office seems to have a lot of power to pursue someone unlike
what some people here suggest.

~~~
rprasad
1) A bad check is a state level offense, not a federal offense, and the
discretion afforded to state and local prosecutors is far greater than the
discretion afforded federal prosecutors (though federal prosecutors have
broader powers).

2) They may have prioritized murders and rapes over crimes, such as bad-check-
passing, that can be remedied in a civil courtroom. That's generally what
happens when state and local budgets get cut. For example, in 2009 and 2010,
San Bernardino and Riverside counties simply did not enforce drug possession
charges for meth or marijuana for quantities below the dealer amount because
they didn't have the prosecutorial resources to handle those cases after
prioritizing violent crimes.

3) HIRE A LAWYER. Winning a case against him in civil court for passing a bad
check is pretty much guaranteed to spawn a criminal case because you'll have
handed the prosecutors their case; they won't have to redirect many resources
away from serious crimes.

~~~
temphn
Please stop posting this misinformation about federal prosecutors lacking
discretion. It is a completely false statement.

"The USA [US Attorney] is invested by statute and delegation from the Attorney
General with the broadest discretion in the exercise of such authority."

[http://www.justice.gov/usao/eousa/foia_reading_room/usam/tit...](http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/2mcrm.htm)

    
    
      The United States Attorney, within his/her district, has 
      plenary authority with regard to federal criminal matters. 
      This authority is exercised under the supervision and 
      direction of the Attorney General and his/her delegates.
    
      The statutory duty to prosecute for all offenses against 
      the United States (28 U.S.C. § 547) carries with it the 
      authority necessary to perform this duty. The USA is 
      invested by statute and delegation from the Attorney 
      General with the broadest discretion in the exercise of 
      such authority.
    
      The authority, discretionary power, and responsibilities of 
      the United States Attorney with relation to criminal 
      matters encompass without limitation by enumeration the 
      following:
    
      Investigating suspected or alleged offenses against the 
      United States, see USAM 9-2.010;
    
      Causing investigations to be conducted by the appropriate 
      federal law enforcement agencies, see USAM 9-2.010;
    
      Declining prosecution, see USAM 9-2.020;
    
      Authorizing prosecution, see USAM 9-2.030;
    
      Determining the manner of prosecuting and deciding trial 
      related questions;
    
      Recommending whether to appeal or not to appeal from an 
      adverse ruling or decision, see USAM 9-2.170;
    
      Dismissing prosecutions, see USAM 9-2.050; and
    
      Handling civil matters related thereto which are under the 
      supervision of the Criminal Division.

~~~
rprasad
It is necessary for you to actually _read_ the citations referred to by that
page (which is just a general summation, not an authoritive declaration on the
authority of federal prosecutors), since federal criminal statutes generally
_do not_ give "plenary discretion" to federal prosecutors. See ISAM 9-2.020
(The United States Attorney is authorized to decline prosecution in any case
referred directly to him/her by an agency unless a statute provides
otherwise.)

This is why the law is complicated: you cannot read a law in a vacuum; you
must read it in conjunction with all other laws bearing upon the same issue.

~~~
temphn
You said in many different posts that federal prosecutors _in general_ lack
discretion, that their hands are tied. This was a false claim. And you may be
the only person in the world who holds this view; I don't think anyone else
(Democrat, Republican, prosecutor, or defender) would make this claim.

Now you are arguing that the specific statute at issue did not allow Ortiz and
Heymann to decline prosecution. That is a completely different contention,
thought it is also false, as it is hard to think of something more subject to
prosecutorial discretion than the 1984 CFAA:

[http://www.jdsupra.com/legalnews/ninth-circuit-scales-
back-c...](http://www.jdsupra.com/legalnews/ninth-circuit-scales-back-cfaa-
applicati-06513/)

    
    
      The Nosal opinion expresses grave concern that the broad 
      reading advocated by the government could criminalize much 
      innocuous activity. In particular, the Court notes that 
      the phrase "exceeds authorized access" appears in another 
      section of the CFAA, § 1030(a)(2)(C), which has no 
      requirement of fraudulent purpose, and requires only that 
      the person who "exceeds authorized access" has "obtain[ed] 
      . . . information from any protected computer" (i.e. any 
      computer that can connect to the Internet). The 
      government's view, the Court feared, could "make every 
      violation of a private computer use policy a federal 
      crime."
    

Obviously most such cases are not being prosecuted by US Attorneys
(discretion!). Yet this is exactly the interpretation that is being relied
upon in the Swartz case, that violation of JSTOR's policy was a federal crime.
Moreover, general opinion is that CFAA is due for Supreme Court review due to
the circuit splits in interpretation. Any federal prosecutor who doesn't want
to be overturned by the Supreme Court had plenty of excuses for dropping this
prosecution, over and above the obviously unjust nature of the case. Ortiz and
Heymann decided nevertheless to take that risk to append a "cybercriminal"
conviction to their CVs.

In short, you are just factually wrong here that the federal prosecutors have
no discretion in general (your first claim), or that they had no discretion
with respects to the statutes at issue here (your second claim).

------
todayiamme
The only conclusion I can draw from his life and the events leading up to his
demise is that he must have upset someone deeply entrenched in the circles of
power. Otherwise the witch-hunt just doesn't make any sense. After all ask
yourself what motive did the prosecutor possess for going after him like that?

~~~
rprasad
No conspiracy, guys.

The prosecutor was just doing her job. A simple case like Aaron's probably
took up less than 1% of her week. It may have been a big case to Aaron, but
compared to their normal cases, it was a relative vacation for the prosecutors
working on it.

The problem was not that Aaron "upset someone deeply entranched." The problem
is that Aaron's activities fall into the definition of a particular form of
electronic crime which may be overbroad. _Federal_ prosecutors don't get to
decide if laws are overbroad or unconstitutional and choose not to enforce the
law (because this discretion was historically used to excuse many white
defendants accused of lynching black men in the South). They enforce all of
the laws on the books unless someone with legal discretion (i.e. ,the head of
the DOJ or the president) issues an order telling them not to enforce a
particular (set of) law(s).

~~~
drzaiusapelord
So you're an up and coming prosecutor and handed the punk kid that took all
those federal court documents and gave your colleagues a big middle finger
when they tried to stop him.

Then JSTOR tells you to knock it off, but you proceed anyway.

And all this happens without Ortiz having any idea? Come on.

No one is saying Obama would know about this, but a bureaucrat on Ortiz's
level does because its her job.

~~~
erichocean
Ortiz not only knew about it, but was rather zealously in favor of prosecuting
Aaron (see the NYT article for more details).

She's _at least_ as guilty as the actual prosecutors on the case.

------
SoftwareMaven
I very seriously considered MIT for my undergrad work, including doing the
requisite alumni interview. I eventually decided the nation's 16th ranked
computer science program was good enough, especially since they wanted to pay
for me.

This whole time, I've had a piece of me that wished I'd done it (a very small
piece, since 1/2 of my kids were born in that timeframe). Today is the first
day when I can honestly say I'm glad I'm in no way associated with MIT.

------
antr
Of all the great stories and memories on Aaron that have been shared all day
today, I believe this story is the one that the general public should really
read. Until yesterday, most Aaron vs USA stories had a negative angle on
Aaron, and this one really shines a light on the ridiculous witch-hunt lead by
the US Attorney.

------
larrys
"I know a criminal hack when I see it, and Aaron’s downloading of journal
articles from an unlocked closet is not an offense worth 35 years in jail."

Prosecutors regularly ask for outrageous sentences which from my observation
are rarely granted.

Here is the case of Mark Drier. Government asked for 150 years, he got 20
years:

[http://blogs.wsj.com/law/2009/07/13/breaking-marc-dreier-
sen...](http://blogs.wsj.com/law/2009/07/13/breaking-marc-dreier-sentenced-
to-20-years-in-prison/)

Michael Miliken theoretically could have faced 520 years:

[http://www.nytimes.com/1989/03/30/business/junk-bond-
leader-...](http://www.nytimes.com/1989/03/30/business/junk-bond-leader-is-
indicted-by-us-in-criminal-action.html)

This is what happened (he got 10 and that was reduced):

[http://www.nytimes.com/1992/08/06/business/milken-s-
sentence...](http://www.nytimes.com/1992/08/06/business/milken-s-sentence-
reduced-by-judge-7-months-are-left.html)

~~~
drzaiusapelord
So in a best case scenario, let me repeat that - best case scenario, here
we're going to take a delicate genius and put him into jail where there's a 7%
chance of being sexually assaulted for about 5-10 years?

Look, you can judge him how you please, but don't tell me about about how
horribly Turing was oppressed if you won't accept guys like Swartz got the
same treatment.

Can you imagine working on a startup, clearing a couple mil, spending your
life fighting for your ideals to only have EVERYTHING taken away by some
overzealous prosecutor? Can you imagine watching your 2 million dollar nest
egg go to lawyers who tell you that you probably will need to serve time? Can
you imagine waking up and knowing that in 6 months you'll be telling everyone
you know that you will be going away for 10 years? That all you've done will
be taken from you? Or how utterly demoralizing it must be to realize that
Ortiz cannot be stopped because of how powerful the federal government is? The
level of defeat here and the stakes involved? That your reputation and the
reputation of everyone and everything you touched will be destroyed the day
you take the plea bargain? Knowing the coming storm will hit you soon and
there's nothing you can do to stop it?

If there's any justfiable reason for suicide in this crazy world its being
railroaded by a government with infinite resources and knowing that by the
time you get out of prison you'll be 10 years older, never allowed to touch a
computer, be seen as a horrible felon on par with Charles Manson, and come out
deeply in debt and completely dead inside.

~~~
CJefferson
I really don't like this argument. Being a delicate genius. , or head of a
startup, doesn't mean you get a "get out of jail free" card. It should be
completely irrelevant.

Now, I don't think the laws Swartz broke are fair. But you seem to be implying
he should of hot special treatment because he was special. That is not how the
law should work.

~~~
Peaker
Apparently he broke very minor laws, though, that don't even imply any jail
time.

~~~
daniel-cussen
The prosecutor was seeking jail time.

------
VikingCoder
I can't remember a specific incident, but I'm fairly certain I've done things
more "inconsiderate" than this.

Cripes, this reads like something Larry and Sergey would have done in the
early days of Backrub (later Google), not something that you get prosecuted
for and face the possibility of 35 years in jail for.

------
mburshteyn
The 9th circuit, followed by the 4th, has been limiting the CFAA's scope
precisely due to the concern about prosecutorial abuse and criminalizing
simple unauthorized system access. I wonder if this case would have moved
forward if the alleged events happened in San Francisco.

From US v. Nosal, 676 F. 3d 854 (9th Cir.):

"The government assures us that, whatever the scope of the CFAA, it won't
prosecute minor violations. But we shouldn't have to live at the mercy of our
local prosecutor. Cf. United States v. Stevens, ___ U.S. ___, 130 S.Ct. 1577,
1591, 176 L.Ed.2d 435 (2010) ("We would not uphold an unconstitutional statute
merely because the Government promised to use it responsibly."). And it's not
clear we can trust the government when a tempting target comes along. Take the
case of the mom who posed as a 17-year-old boy and cyber-bullied her
daughter's classmate. The Justice Department prosecuted her under 18 U.S.C. §
1030(a)(2)(C) for violating MySpace's terms of service, which prohibited lying
about identifying information, including age. See United States v. Drew, 259
F.R.D. 449 (C.D.Cal.2009). Lying on social media websites is common: People
shave years off their age, add inches to their height and drop pounds from
their weight. The difference between puffery and prosecution may depend on
whether you happen to be someone an AUSA has reason to go after.

In United States v. Kozminski, 487 U.S. 931, 108 S.Ct. 2751, 101 L.Ed.2d 788
(1988), the Supreme Court refused to adopt the government's broad
interpretation of a statute because it would "criminalize a broad range of
day-to-day activity." Id. at 949, 108 S.Ct. 2751. Applying the rule of lenity,
the Court warned that the broader statutory interpretation would "delegate to
prosecutors and juries the inherently legislative task of determining what
type of ... activities are so morally reprehensible that they should be
punished as crimes" and would "subject individuals to the risk of arbitrary or
discriminatory prosecution and conviction." Id. By giving that much power to
prosecutors, we're inviting discriminatory and arbitrary enforcement."

*disclaimer: I am not a lawyer

------
doe88
It's even lower than what I expected. I remember having read one time there
was allegedly a copied cookie involved (which already wasn't what I would call
a hack), but it seems that's not even the case. I'm astonished how such a
small offense could bring such huge charges.

~~~
nateware
Agreed, if that article is accurate those charges are ludicrous. There are
plugins for every major browser that basically do the exact same thing, which
any average layperson can use. What's next, claiming that AdBlock is
inspecting and subverting Internet traffic, and hence a crime under the
Wiretap Act?

------
ojbyrne
The other stories were sad, but this one is disgusting. I hope that Aaron's
death actually changes things.

------
cowsandmilk
Many people have wondered who to point the finger at within MIT. I find it
incredibly enlightening that he chooses to point a finger by linking to MIT's
Office of the General Counsel.

------
Yaa101
The United States are broken beyond repair, this is just the beginning of the
shitstorm of corruption that has been building up since the end of the 19th
century.

------
jacoblyles
This article misses the main point. Even if he did break locks and crack
authentication, what he did would still be morally right.

------
jzone3
Did Aaron release the articles, or just download them? If he released them,
using what medium?

~~~
erichocean
He returned all of the articles he downloaded to JSTOR when he was asked to.
He did not distribute them.

UPDATE: Here's JSTOR's confirmation of the above:
<http://about.jstor.org/statement-swartz>

~~~
omarchowdhury
How do you return something that was downloaded?

~~~
mjn
Since I have slightly trollish inclinations, I emailed JSTOR's customer
service after they made that weird announcement about wanting files
"returned", expressing my worry over which content was "missing", and when
they expected it to be returned and available again. I got a short response
claiming the media had misreported the situation:

 _Thank you for your message. Some of the media details about this incident
have been a bit misleading. I can confirm that no content is missing from
JSTOR as a result of the recent misuse case. Copies of the files were
downloaded from the site, no content is unavailable as a result._

------
d0m
Is this the reason why he committed suicide? As far as I understand, there
really was no crime at all. Hell, by these standards, Mark Zuckerberg should
get 70 years in prison for downloading some pictures. It's hard to believe he
was persecuted for years because of _that_. Still, a part of me believes there
had to be a stronger reason to commit suicide. I mean, we're not talking about
a random stranger.. it's Aaron. He's fought all his life for things and
menaces way bigger than that. This is odd.

~~~
exodust
I thought it was odd too, then I read his 2007 short story post "A Moment
Before Dying" where he originally had the character's name as Aaron before
changing it to Alex after concerned friends flooded in. It's a bizarre and
quite frankly terrible piece where he repeats more than once the line "The day
Aaron killed himself...".

It won't win any literary awards, but it indicates he could get himself caught
in a dark place given circumstances. It's actually one of the more blatant
"hey everyone I'm suicidal" messages I've heard of outside of actual self-harm
from failed suicide attempts.

As always, friends can't be babysitting each other 24/7. He felt he should
check out early, ok, well not easy to prevent people doing that if they're set
in their ways.

------
jebblue
>> The JSTOR application lacked even the most basic controls to prevent what
they might consider abusive behavior

Was he allowed to download the documents? It doesn't matter what controls were
in place. The question is basic, did he get something he was not authorized to
take?

------
watmough
I remember reading about this 'hack' at the time.

I just can't believe that it ended in Aaron taking his own life. I'm sure
anyone paying attention to this will be very angry and sad.

