Surely 'intent' only becomes material after some crime was actually committed? Otherwise prosecuting just for intent alone makes it into a thought crime?
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?
Please refrain from referring to hn posters who disagree with you about the scope of "thought crime" as "shills". It's unbecoming.
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.
"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"
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.
It remained to be seen whether he had committed a crime. That is what the trial was going to determine.
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.
Aaron downloaded many research papers which, individually, he had every right to do. I remember it and at the time it was quite clear that the reason he needed so many papers was because he was doing statistical research on them - establishing how many were publicly funded.
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.
"imagine he had downloaded loosely protected private emails or credit card account lists"
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.
That's more of a factor for the sentencing phase of a trial (a "mitigating" factor to be considered when adjudging a proper sentence).
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).
I don't think I am proposing vigilante justice, are you confusing comments here perhaps?
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.
I read your comment as essentially advocating vigilante justice as well. If you are not saying "we are free to steal if we think it's for the public good", then what are you saying?
"Vigilante justice" is simply justice applied outside of the legal framework.
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.
I'm sorry but vigilante justice and civil disobedience are quite different concepts.
My comment advocated neither. I merely pointed out that pubic prosecutions should only proceed if they are in the public interest. Hardly that radical.
> I merely pointed out that public prosecutions should only proceed if they are in the public interest.
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 don't think I even hinted at anything that stupid... Swartz did enough to face the possibility of charges even without counting what he might have done later.
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.
What do you think his offence was then? He had the right to access all of the articles he downloaded individually. You seem to be suggesting that he should be prosecuted because he might have distributed them.
> He had the right to access all of the articles he downloaded individually.
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.
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?