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I think it will take me a day or two to properly digest this article. That is a good thing. Here are a few gut responses in semi-random order.

1. I absolutely agree that the whole process of plea bargains, threats, etc is unethical, immoral, etc. And we should object to it in all cases, not just when it happens to someone like Aaron Swartz.

2. I absolutely disagree that Aaron's actions would seriously threaten the revenues for journals. Once a journal has been delivered, it has been paid for. Retroactive access to past journals does not lessen the desire for libraries to proactively gain access to future ones. The fact that journals are willing to let articles onto JSTOR where they are often available for a nominal (and in many cases a nonexistent) fee says very clearly that the marginal value that Aaron would have taken would be miniscule.

3. I strongly disagree that the process by which the USA acquires more laws at this point can be fairly described as "democratic". There is a minimum facade of democratic input, and in rare cases (eg SOPA) this can redirect the system. But on the whole the system is not democratic, and describing it as such tends to give people a false sense of complacency.

4. That said, I agree with the general principle under which Orrin would have recommended sentencing. But I emphatically disagree with the specific conclusions there. We have ample evidence from, for instance, the ease with which JSTOR got Aaron to back down and return materials before the prosecutors arrived that he actually could be deterred. There was every reason to believe that he found jail to be a very threatening prospect, and the plea bargain suggested by his lawyer would have, in fact, deterred him from future action. Given that, there was no need to seek large punishment.

5. The specific suggestions on reforming the CFAA seem very good to me. If we're optimistic that the Supreme Court will set precedent interpreting the CFAA in a very good way, then we don't want Congress muddying the waters with a provision that can confuse future courts about whether they should follow the reasoning in precedent or guess at the intent of worse recent statutory law. The ease of elevating crimes to a felony strikes me as a very clear problem.

I could go on, but as I say it will take me some time to digest this article.

I'm a big fan of understanding motivations. Prosecutors try to go hard on people so that they "look tough".

Think about how disgusting it is to build your career on how many wins you have and fuck the collateral damage (pardon my French) which in this case was Aaron.

Until prosecutors are not motivated to act this way, we will continue to see excessive behavior from them.


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