MIT Warned of a JSTOR Death Sentence Due To Swartz

theodp writes "The NY Times takes a look at how MIT ensnared Aaron Swartz, but doesn't shed much light on how the incident became a Federal case with Secret Service involvement. Still, the article is interesting with its report that 'E-mails among M.I.T. officials that Tuesday in January 2011 highlight the pressures university officials felt' from JSTOR, which is generally viewed as a good guy in the incident. From the story: 'Ann J. Wolpert, the director of libraries, wrote to Ellen Finnie Duranceau, the official who was receiving JSTOR's complaints: "Has there ever been a situation similar to this when we brought in campus police? The magnitude, systematic and careful nature of the abuses could be construed as approaching criminal action. Certainly, that's how JSTOR views it."' Less than a week later, a Google search reveals, Duranceau notified the MIT community that immediate changes to JSTOR access had to be made lest the University be subjected to a JSTOR 'death sentence.' 'Because JSTOR has recently reported excessive, systematic downloading of articles at MIT,' the post warned, 'we need to add a new layer of access control. This is the only way to prevent recurrence of the abuse and therefore the only way to ensure ongoing access to this valuable resource for the MIT Community.' The post concludes, 'The incidents that prompted this change involved the use of a robot, which is prohibited by JSTOR's Terms and Conditions of Use. ...Continued access to JSTOR and other resources is dependent on the MIT Community complying with these policies.' Hope you enjoyed that freewheeling culture while it lasted, kids — now Everything is a Crime." theodp continues " MIT's Wolpert, who was recently named to an advisory board for JSTOR parent Ithaka, also chairs the Management Board of the MIT Press, where her reports from 2008-2010 included JSTOR Managing Director Laura Brown and MIT's Hal Abelson, adding another twist to Abelson's analysis of MIT's involvement in the Swartz tragedy."

Comments

What is this crap?

[Garridan]

Seriously? Death sentence? Yes. They used the words "death sentence" but it was for their access to JSTOR, not anything to do with Swartz. This is not news, this is grasping at straws.

Re:What is this crap?

[Anonymous Coward]

I don't know if they changed the tittle but it clearly state's the death sentence is to JSTOR.

Re:What is this crap?

[Coisiche]

Well it is news. The Swartz case has been a discussion topic here in previous articles and this provides a bit more insight into what drove it into becoming a criminal case in the first place; JSTOR pressure on MIT was probably the trigger for MIT's later actions.

Re:What is this crap?

[Anonymous Coward]

I'll give GP the benefit of the doubt. That summary is a grammatical train wreck.

Re:What is this crap?

[Anonymous Coward]

+1. Very poorly written. Tough to understand

Re:What is this crap?

[hairyfeet]

All they needed to do is change the focus to make it into a decent FA and being a nice guy allow me to do so:

If MLK or any of the other freedom fighters of the 60s were to pull that same shit today they would have all their rights stripped away as EVERYTHING is a felony now.

Now THAT should have been the focus of TFA, Go to some occupy protest? You end up on a list of possible terrorists and if you are arrested they will pile on as many charges as it takes to make it a felony. Go to some rally and hold up a little sign? Same thing, if the PTBs decide to break it up a good portion of your rights will be stripped away. Do you know how many homeless single mothers we have because of the "zero tolerance" crap they passed in the 90s?If you get busted for pretty much anything in many states including protesting you will end up being able to get ZERO help for the rest of your life, in fact a fucking illegal will have more help than you will, you'll have pretty much zero rights and the cops will fuck with you at will for the rest of your life. "do the crime do the time" simply no longer exists as its "Do a crime do a life sentence as a second class citizen"

It was THIS kind of bullshit that killed the kid, not JSTOR or any other corp. Sure corps now have Godlike powers but those Godlike powers are granted them by a broken corrupted system that has turned into a giant revolving door with so much conflict of interest its not even funny.

Re:What is this crap?

[Opportunist]

It sometimes feels like Les Miserables comes to life.

Re:What is this crap?

[Zontar The Mindless]

The only ambiguity there is 'warned', and whether it's an active or passive verb doesn't significantly alter the sense.

Maybe your parser needs upgrading. Mine handled this just fine.

Re:What is this crap?

[Anonymous Coward]

I'll give GP the benefit of the doubt. That summary is a grammatical train wreck.

Is the summary the quality of material available on JSTOR?

Re:What is this crap?

[Anonymous Coward]

After watching Les Miserables recently I actually felt that this is the basis of our legal system. Nothing has evolved since then and we they didn't need big brother to destroy lives, now we have "the system" it's pretty much end game for any form of redemption from any past errors in life, disgusting.

Re:What is this crap?

[Zontar The Mindless]

You think this is any different now? You are aware that the FBI bugged MLK, aren't you? And that the guy who assassinated him likely had help from the Feds, don't you?

Only the names have changed.

Re:What is this crap?

[abirdman]

Thank you sir, you are completely correct. Corps have convinced government at every level that their needs-- for protection of future profits, for protection of trade secrets, for maintaining their own security rubrics, for protecting their IP)-- make it necessary they be able to interpret and prosecute their own lines of inquiry, sanctions, and punishments against citizens. Government at every level (and on both sides of the aisle) is jumping at the chance to hand them anything they ask for, from SOPA passed in secret, to pepper spray for college protesters, to absurd prison terms for the unregenerate such as Aaron Swartz. It's shocking and unsustainable, but it's happening.

Re:What is this crap?

[Anonymous Coward]

That would be China.

Re:What is this crap?

[fearofcarpet]

A friend of mine was convicted of a crime 20 years ago. Long story short, he slept with the sheriff's daughter (in a small town) who had to that point claimed to her father to be saving it for marriage. Now he is a sex offender. Sure he made some bad choices (he was 17 at the time), but now he not only has a criminal record, but a sex offense. It drove him out of the city, out of the state, and eventually nearly underground. It made it almost impossible for him to get an education and a job, buy a house, start a family--all those normal things we take for granted that in fact stem from our "inalienable" rights. And that was 20 years ago--nowadays that small-town attitude is the norm for anyone trying to express an opinion that The Man finds unsavory. Once the system gets a hold of you, you're lucky if it only ruins your life in the short term.

Re:What is this crap?

[TapeCutter]

It was a bit tougher in the 60's than the picture you paint, for starters MLK was assasinated.

Re:What is this crap?

[Anonymous Coward]

In the voice of Thane Krios:

Rolled over and got out of bed, awoken by the reverberations of a broken muffler.
I turn on the monitor, type in slashdot.org, proceed to read the first article that appears.
Must still be half asleep, wiped my eyes, still not fully awake.
Walk into the kitchen, the aroma of a strong fresh brew tea followed.
Sit back down at the computer, try to read it again.
I give up.

Re:What is this crap?

[luis_a_espinal]

It was a bit tougher in the 60's than the picture you paint, for starters MLK was assasinated.

Indeed, for people to suggest civil rights activists would be incarcerated today for doing what they did then is just an example of reaching all the way up their asses to make an argument. That act is even worse because it willfully white-washes the horrors of the time, horrors that are no longer present regardless of how they feel about the current status quo.

Re:What is this crap?

[Anonymous Coward]

To be fair, at this point MIT does deserve a death sentence.

Ok, maybe they don't need to be "dead" as in torn down brick by brick and the ground sowed with salt so nothing can ever grow there again...

But their position as America's top technology college? People really need to think about whether they deserve that after this fiasco.

Re:What is this crap?

[sesshomaru]

Well, sure, but the courts didn't send Mildred and Richard Loving up the river, and they could have because the were both criminal lawbreakers as well as doubleplusungood crimethinkers.

The FBI and COINTELPRO used to have to do their dirty work in secret, as covert ops.

Re:What is this crap?

[Arancaytar]

So far JSTOR has been covered favorably (due to settling and not wanting the government to press charges) while MIT has come off as evil or apathetic at best. This story implies that MIT was itself pressured by JSTOR to go after Swartz or lose their access. That's pretty big news.

Re:What is this crap?

[Creepy]

The thing is, they don't even need SOPA - as it is now, you could read the same 1980s CFAA (Computer Fraud and Abuse Act) section that was being used to prosecute Swartz even more liberally and make the internet itself illegal because it essentially requires a user to get permission to visit any site (for Swartz they interpreted this section of the law as a violation of Terms of Service).

For that matter, this post is a felony in the United States; under the CFAA, I am technically committing wire fraud by using an alias to (falsely) represent myself. Yep, the CFAA wording is that broad - if we had internet in the 1970s/80s (a failed precursor existed in 1979), we'd have killed it with a massive protest.

Re:What is this crap?

[bzipitidoo]

Ouch. Without knowing any more of the details, and presuming it was all consensual, sounds like your friend didn't do anything wrong. Sleeping with the sheriff's daughter should not be thought a bad choice. One wonders if it's safe to patronize a strip club. Apart from the food, maybe just eating at Hooters is a bad choice.

I've felt for some time now that the "tough on crime" trend has gone way too far. It's become a self perpetuating industry that is more interested in growing their numbers than in justice. The US imprisons more people than any other nation.

Re:What is this crap?

[fearofcarpet]

Without going into too much detail, there were five guys involved and it was consensual (the parents of one of the guys were in the next room; classy). One was 18 and went to state prison for a long time, two went to jail, one of which wound up in prison for violating his parol, and the other (my friend) ended up with a suspended sentence, several years of probation, many hours of community service, compulsory courses, regular drug (and alcohol until he was 21) testing and, of course, a criminal record. The other two were connected politically (i.e., parents on the police force/sherif's office) and didn't get so much as a slap on the wrist. The really terrible part is that the girl later apologized to the guys--while they were in jail--for lying about the whole thing (not publicly of course).

Re:What is this crap?

[Anonymous Coward]

In fairness you left out the part where the Sheriff's daughter was 11.

More seriously, you left out what the person was convicted of, whether he was guilty, and if not, how the Sheriff was able to have him convincted in the first place.

Re:What is this crap?

[Anonymous Coward]

Thank you. People seem to be forgetting that, regardless of whether or not Swartz would have actually gotten the sentence being sought by the prosecution, the threat was very real. And even if it was a light sentence, he would never be able to get a normal job because his application would be immediately trashed when he answered "yes" to having been convicted of a felony.

Re:What is this crap?

[Anonymous Coward]

Seriously we are comparing access academic journals to the Civil Rights movement?

Re:What is this crap?

[GodInHell]

This.

Civil Disobedience includes as a pre-req the willingness to suffer the injustice of punishment to demonstrate the harm of the thing you're protesting. Ghandi got beat, many of his followers were killed. They continued and they won with increasing public support. MLK and his followers were beaten, the KKK started bombing their churches, dozens and dozens were hung from trees, freedom riders were beaten and arrested, counter-squatters were beaten and arrested, men and women died in the civil rights movement at the hands of state officials and racist hicks. In the end they won, because the outrage provoked by the injustice created pressure to fix the fucking problems. (n.b. The problems of racism and system poverty continue. Protest continues.)

Swartz could have accepted the 6 month offer, done his time, and then used the fact that he could not vote or own a gun as a point of argument for the rest of his life. The alternative he elected -- death -- includes the sentence the Gov't was offering, plus a lot more. By killing himself he insured that his voice, and his story, end. Within a year, most of you won't even remember his name. He could have been a force for change. Now he's not.

Shorter: Don't kill yourself. It is stupid and you help nothing by doing so.

Re:What is this crap?

[interkin3tic]

No, it sounds like JSTOR was urging MIT to clamp down on JSTOR access, not push to prosecute Aaron.

Kind of like if you own a chain of retail stores, and you tell a store manager to crack down on shoplifting or you're going to fire him, and the store manager shoots the next shoplifter he sees. You didn't tell him to go that far overboard, or shoot anyone, or shoot that one specifically.

Re:What is this crap?

[Anonymous Coward]

As someone who has been a part of innunmerable Occupy related protests, I'm gonna tell you the same thing I've told so many before you:

You're full of shit!

The persons who protest with little felony arrests, and still create a helluvan uproar? Westboro Baptist Church. I can't stand them, but they're not going around getting arrested for "practicing freedom of speech". There are plenty of Occupiers who do it right, they organise and try to make the world a better place, example, Occupy Sandy.

The follwing is personal opinion and perception of my experiences:

The only reason Occupiers, or similar individuals, get arrested, and then have a pile of charges attached to them, is because they were completely inconsiderate of their circumstances. Aggressively approaching and shouting "fuck you, pig!" at cops the moment they show up, intimidating local people, pushing their beliefs on you intrusively and with little consideration for your physical or mental safety...the list goes on and on. They only care about their ajenda and not their audience.

Those are persons deserving of a long list of charges and a label of "terrorist".

The big raids that occured back in 2011 were due to Occupiers overstaying their welcome without them trying to actually come to a compromise; they were right, and "the man" was wrong. Anyone who tried to speak/act diplomatically was ostracized or labeled as a "narc". Black and white. They use the same system that they're fighting against: fear.

Stand in a picket line all you want, but don't stand next to that guy who gets angry at you or others because you a) have polite discourse with cops or b) treat people like humans. Don't be an asshat and use fear to deploy your message.

Use kindness...it goes further.

Re:What is this crap?

[Jeremy Erwin]

Why don't you read each of the 15,000 journals on JSTOR, and come back with a report?. Given that 1711 of those journals cover language and literature, you might well be surprised.

Re:What is this crap?

[Anonymous Coward]

JSTOR's terms indicate they may cut off service to a subscriber if traffic interferes with the JSTOR service until the subscriber fixes the problem. "Death sentence" is certainly hyperbole.

Re:What is this crap?

[fahrbot-bot]

I am technically committing wire fraud by using an alias to (falsely) represent myself.

So, you're not actually "Creepy"? Damn.

Re:What is this crap?

[Impy the Impiuos Imp]

The purpose of "everything is illegal" has been well-known for thousands of years -- nobody can do daily activities to keep themselves alive without kickbacks, and anyone uppity can be easily yanked.

History should give no confidence whatsoever that democracy and freedom of speech have more than a minor impact on this. If anything, it can be worse in some ways since some of the lower-level officials don't feel themselves corrupt, but rather fancy themselves helpful, playing the position of useful idiot for higher officials who do take donations, legal or otherwise. "I'll sic this self-righteous regulator...unless a hefty ransom is paid?"

Re:What is this crap?

[hairyfeet]

And THIS is why I think we are getting close to the big collapse, as the corrupt no longer even pretend to care or to hide their deed from prying eyes, they do it openly and on camera with a big middle finger to the people.

When you look at how big a bubble they've blown in the stock market its pretty plain to see a collapse is inevitable, the bubble of 29 was only 125% GDP and took a world war knocking out the competition and STILL didn't recover until 1953, whereas this bubble is over 430% and rising.

I personally think the PTBs are being this brazen on purpose, they want to get the people used to seeing more and more abuses so when the bubble bursts and they roll the tanks many won't fight back. I don't think it'll work as they have planned though, I think we'll end up like Libya with half the army for the people and half for the PTBs and its gonna end up one big bloody mess. Hell at this point the poor and middle class are hurting so bad that I wouldn't be surprised if they would sign off on some generale taking over, couldn't get any worse for those at the bottom than it already is.

Re:What is this crap?

[Anonymous Coward]

That's not the case at all. JSTOR told MIT to clean up their act (i.e. restrict access to within the boundaries of their license agreement) or they'd be cut off. Calling it a "death penalty" makes it sound overly dramatic, but that's all it was: shape up or you're cut off. That doesn't say anything about how MIT should have treated Swartz in a legal sense. It was basically saying either fix the problem by technical means OR find the person responsible and stop them from continuing to do it, either of which sounds like an entirely reasonable approach to me.

What would people expect JSTOR to do? Oh, someone's downloading millions of documents using a script, even though our terms of service prohibit that kind of use, so do nothing?

Re:What is this crap?

[Garridan]

What? No it wasn't. I did not misunderstand the summary or article. My complaint is that the entire basis for this article is bullshit -- it's just a play on "they used the words 'death sentence' and somebody died". Of course that isn't what they're saying in the article. But that's the sensation they're selling it on.

Re:What is this crap?

[wv5k]

Absolutely the way it is in Texas these days. Hairy, take a bow...

Sensationalize much?

[eksith]

JSTOR acted naively, but corrected itself later. MIT acted naively and then stupidly, but realized their mistake too late. Prosecutors acted like prosecutors typically do these days (I.E. tyranically) and a vulnerable kid took the least painful way out.

Mr. Swartz turned over his hard drives with 4.8 million documents, and Jstor declined to pursue the case. But Carmen M. Ortiz, the United States attorney in Boston, decided to press on.

As in MIT didn't "ensnare" anyone. They first overreacted, but then couldn't reach the reset button before Ortiz et al took over and sent all reservations MIT may have had about pressing on and destroying his life straight to /dev/null .

The prosecutors killed Swartz. That's it. While I appreciate the details of exactly what happened within MIT, lets not divert attention away to what this story really is. This should actually be looked as a big fat spotlight being shined on our spectaular legal system that values conviction rates over actual decreased crime rates and political gain at the cost of lives.

Re:Sensationalize much?

[Anonymous Coward]

As in MIT didn't "ensnare" anyone. They first overreacted, but then couldn't reach the reset button before

Except it wasnt the first time. _this is MIT culture_, look at how they threated a student with LED pendant at the airport.

Re:Sensationalize much?

[Anonymous Coward]

Aaron wasn't a student at MIT.

Re:Sensationalize much?

[Anonymous Coward]

It's not a case of one or the other. We can do both. Article points out MIT may have themselves violated federal and state wiretapping statutes and its obvious from Wolperts e-mails she was going down on JSTOR. And BTW the title of the NY Times article was "How M.I.T. Ensnared a Hacker, Bucking a Freewheeling Culture" There you have the MIT librarian licking her lips for a criminal conviction. Fuck her.

Re:Sensationalize much?

[Anonymous Coward]

ERIC GRIMSON CHANCELLOR OF MIT should take the fall for this. it is known amongst mit officials that he and he alone was given the privilege to cease the investigation several times throughout. he wanted to play the wise and good and smart guy. after having profited in a big $$$$$ bucks way from his current online education scheme.

HE SHOULD BE STRIPPED OF HIS POSITION AND TITLE FOR HAVING ALLOWED SUCH A DEVASTATING OUTCOME.

It is now under investigation by Hal Abelson. yes ? but hold on! Some might believe that Hal was a close friend of Aaron.
but this is half the truth HAL'S ANALYSIS will AVOID UNDERMINING the part that may lead TO GRIMSON'S rightful expulsion. this is all a politics game within MIT so beware that Hal's analysis, HOWEVER OBJECTIVE AND FAIR will downplay
any WRONGDOING by big MIT Officials such as ERIC GRIMSON."

Re:Sensationalize much?

[Richard_at_work]

The prosecutors killed Swartz.

I do find the difference in opinion that rises to the top of Slashdot discussions on various topics very interesting.

In this case, the overriding opinion is that the acts of the prosecutors are responsible for the death of Swartz.

However, in at least two other cases, that of Amanda Todd and Megan Meier, the overriding opinion in those Slashdot stories was that the person or people accused of bullying were not responsible for the deaths of the victims, as suicide victims usually have underlying issues.

The duality of Slashdot is very interesting, but so is how very different, very strong opinions and very opposing opinions can still rise to the surface.

Re:Sensationalize much?

[Anonymous Coward]

MIT doesn't run any airports AFAIK.

Re:Sensationalize much?

[Anonymous Coward]

and a vulnerable kid took the least painful way out.

It sounds almost noble and heroic they way you explain that someone took their own life. There is no valor in suicide. You do not know a damn thing about suicide.

Re:Sensationalize much?

[fearofcarpet]

Meanwhile actual criminals, like the senior management of HSBC, run free because they are "too big to prosecute." The focus on conviction rates (a consequence of the clash of bureaucracy and careerism) actually disincentivizes going after real criminals because they have the resources to fight back. Gone are the days of making an example out of a corrupt banker or mafia king pin. Now we drive computer nerds to suicide for violating the TOS of a website.

Re:Sensationalize much?

[Anonymous Coward]

Internet bullies have absolutely no real power over anyone. At all.

The government is a different matter.

Re:Sensationalize much?

[Ash Vince]

The prosecutors killed Swartz.

That is utterly moronic. The prosecutors just did their job. It is not their job to decide if the law is just, or decide if people the police (or anyone else who has gathered enough evidence) accuse of a crime is innocent. It is their job to go do their very best to get people the police accuse of a crime found guilty at any cost (even if their personal opinion is that they are innocent). It is the defence teams job to get their client off at any cost (even if he is guilty as hell).

The only people who get to decide guilt or whether a law is just (ie - fair) are the jury. http://en.wikipedia.org/wiki/Jury

The only thing the prosecutor can say to drop a case is that there is insufficient evidence to support a prosecution (they of course may try to get you to plead guilty first to save face but that is fair game).

None of this is to say I think what happened to Aaron Swartz is fair. But the points above are the principles under which a adversarial legal system operates: http://en.wikipedia.org/wiki/Adversarial_system

In this case someone wanted to prosecute Aaron Swartz. The prosecutor looked at this and decided their was a realistic chance of a successful prosecution. Aaron chose not to wait for a jury to decide his guilt and killed himself. If he was innocent of any crime a jury would hopefully have found him so, but he lacked enough faith in the system I guess but I nor anybody else can be 100% about his reasons, especially since he left no explanation. We can make an educated guess, but that is very different from certainty.

I find the idea of blaming any one part of the system in this case to be wrong, especially as the part everyone blames was only doing what they were supposed to. When a guilty person gets off it is not the fault of their defence lawyer for doing their job too well, it is a breakdown of the system as a whole. I think the same applies in this case, blame the entire system not a single cog within it.

This is just one further example of a shortcoming within the US legal system but every legal system has short comings, inquisitorial legal systems have their downfalls too.

The big issue here though is actually particular to the US system in that in order to drive down costs, more and more cases are now settled without a jury being involved by the prosecution doing its damnedest to scare the defendant into a pragmatic guilty plea to save the cost of a trial. This happens in millions of cases and probably does save lots of money and most of time gets the right outcome, in this case some poor guy who was out of his depth was literally scared to death by it.

Maybe the solution here is to make jury trials the norm instead of the exception whatever the cost. Since juries were designed to prevent shit like this they have to be available to all, not just the few who can afford them.

Re:Sensationalize much?

[Anonymous Coward]

Yeah, totally News at 11 stuff you got there. Different people have different opinions, and individuals can be inconsistent.

Re:Sensationalize much?

[Anonymous Coward]

The prosecutors killed Swartz.

I do find the difference in opinion that rises to the top of Slashdot discussions on various topics very interesting.

In this case, the overriding opinion is that the acts of the prosecutors are responsible for the death of Swartz.

However, in at least two other cases, that of Amanda Todd and Megan Meier, the overriding opinion in those Slashdot stories was that the person or people accused of bullying were not responsible for the deaths of the victims, as suicide victims usually have underlying issues.

The duality of Slashdot is very interesting, but so is how very different, very strong opinions and very opposing opinions can still rise to the surface.

If you cannot understand the difference between bullying done by one single person on her own with emotional tricks and words, vs bullying done by professional prosecutor(s) having basically unlimited resources with the legal system plus the possibility of the victim spending most of he useful life in prison, you have a very serious problem with your perspective of reality.

Re:Sensationalize much?

[Anonymous Coward]

That wasn't the claim either. Your reading comprehension sucks.

Re:Sensationalize much?

[Anynomous Coward]

I'll try to explain. Swartz suicide was his own doing. On the other hand, the prosecutor was irresponsible in using the powers assigned to her, and her actions have ultimately contributed to Swartz' fate. The duality is in distributing the blame for the incident. Every case is different, and so are the opinions of the readers here. Slashdot readers are not a rigid monolithic block jumping to a steady beat with a set of opinions that are cast in stone.

BTW there is a difference between bullying which can be addressed by a proper response, moving out of the way or letting time pass, and the unavoidable lifetime consequences of a law enforced in a blind, negligent or even maliglant fashion.

Re:Sensationalize much?

[Anonymous Coward]

There may be multiple spotlights here.

Perhaps a small spotlight could be spared to shine on the actual issue which Aaron Swartz was trying to address, and which this incident so brightly hightlights? The threat of the "JSTOR death sentence": that one organization holds the keys, and limits access, to all this research and is *capable* of spooking universities in such a way.

Re:Sensationalize much?

[CaptainNerdCave]

The difference exists in the outcome of these actions, and the responses possible.

A bully makes your life difficult with threats and intimidation? Go to a different school, neighborhood, forum, restaurant, etc; that bully has severely limited resources.

The government makes your life difficult with threats and intimidation? You don't have options.

Re:Sensationalize much?

[Anonymous Coward]

The prosecutors killed Swartz. That's it.

No, Swartz killed himself.

And YOU need to get yourself some mental health care because you are delusional.

Re:Sensationalize much?

[Anonymous Coward]

I don't know or remember Amanda Todd and Megan Meier or the discussions. (not from U.S.)

But the different opinion can be explained and justified.

In the case of bullies, it is the bullies that harm/bully the victim in the name of the bullies. The bullies are usually 'equals' in authority. (Kids from the same class)
In this case, the bully is a U.S. prosecutor with considerable higher authority, abusing that power. Furthermore, the prosecutor is doing the bullying in the name of the people, not in her own name. It's not just the prosecutor trying to put someone in jail, it's the entire U.S..

That's a big difference. People react strongly because most probably didn't even know someone was bullying this kid in their name.
Now, the question to ask is, would they have done anything, and I mean, actual ACTIONS, not mere words on an Internet forum, to stop said bullying in their name?
The answer to that question is probably a big NO. Which makes the reactions even stronger, to try and hide that inaction.
And when I'm writing this I'm realizing I'm not just describing the behavior I've seen from others, I'm describing myself as well.

Re:Sensationalize much?

[Anonymous Coward]

Maybe the solution here is to make jury trials the norm instead of the exception whatever the cost. Since juries were designed to prevent shit like this they have to be available to all, not just the few who can afford them.

Perhaps it should be up to a jury to decide what crimes we the people want prosecutors spending their time on.
The prosecutors can then still tack on every law and charge they can pull out of their ass, but at least we can aim their guns.

Re:Sensationalize much?

[HeckRuler]

Power. The federal court has power of us. Peers over the internet do not. "Cyber bullying" is amongst equals while the power imbalance between an ethical and upstanding digital rights activist and federal prosecutors is laughable. To curtail cyber bullying we would need to impose draconian rules enforced over the Internet, while to curtail federal bullying we simply need to slap a political official on the wrist. And we can do that second one, in theory, because we live in a democracy. But to get the right people to start slapping, even halfheartedly, the masses have to get in a huff and thrash a little.

Also, did you think that Slashdot is one homogenous group? We're not even a loose coalition. We're individuals that occasionally function as a hive-mind.

Re:Sensationalize much?

[Anonymous Coward]

This is a tragedy but his blood is not on the prosecutor's hands. They no more killed him than I forced you to be overly dramatic.

This has been one giant chain of overreaction starting with JSTOR, continuing with MIT, compounded by the prosecutor, and then tragically peaking with Swartz.

Yes, the prosecutor was overzealous, but ultimately Swartz has to be accountable for his own actions. There are many things happen in this world that could trigger someone to do something drastic. Even if you could fix prosecutors, you can't fix everything. This has to be addressed as close to the source of the immediate problem as possible. Some people need help, and if they don't seek it on their own, it is the job of those closest to them to make sure they get it. If you want to fix something, fix the mental health crisis in this country.

Re:Sensationalize much?

[Anonymous Coward]

It's not very hard to parse: Adam Swartz was being persecuted, bullied, if you like, by the Federal government. Megan Meier and Amanda Todd were persecuted by other teens (or at least people masquerading as teens). You should be able to distinguish the difference between your neighbor calling you a dick, and a cop telling you that he is going to take your job and your house because of your dickish behavior. Being bullied by your peers feels bad. Being bullied by the government has real-world costs and consequences that go beyond "sad."

Re:Sensationalize much?

[steelfood]

They're not opposing opinions.

One is about an individual standing up against another individual (or the refusal to do so). The other is about an individual standing up against the government. It's about fairness. When an individual stands up against another individual, they are on even ground. This is not so with the government. One individual cannot stand up to the government with any hope of winning. Even with a good lawyer, there is no chance. The government has strings everywhere, and it will pull all of them as needed to ensure that it gets its way (note that the string can be pulled two ways).

Or to put it another way, being bullied by a fellow student does not result in a life sentence (whether it's in jail or outside). Being bullied by the government does. And any individual can be bullied by the government, from some poor college student to a CEO of a large corporation.

Re:Sensationalize much?

[k6mfw]

The prosecutors killed Swartz.

That is utterly moronic. The prosecutors just did their job.

Yes, they're simply following orders. (for those of you not familiar with 20th century history, look up Nuremberg Trial)

Re:Sensationalize much?

[smellotron]

In this case, the overriding opinion is that the acts of the prosecutors are responsible for the death of Swartz.

However, in at least two other cases... the overriding opinion... was that the person or people accused of bullying were not responsible for the deaths of the victims, as suicide victims usually have underlying issues.

As I see it, the difference is that the prosecutor is in a position of privilege granted by public mandate. Public servants acting in their "work" capacity should absolutely be held to a higher standard than individuals in their personal lives. This is consistent with Slashdot's group desire for extreme personal privacy, but continuous videotaping of police officers. Or with the prevailing cultural opinion here that sex with your direct report abusive and potentially less-than-consensual, but consensual sex with another co-worker is just fine.

Re:Sensationalize much?

[Compaqt]

The jury doesn't get to decide the sentence, which is really key to the whole thing.

Prosecutor:
"Ladies and gentlemen of the jury, you are only to decide on whether the law was broken, not if you don't like the law, not what you think the sentence should be. The only question is, did or did not the defendant steal a paper clip."

Jury (with no option): "Yes"

Judge: "20 years with no chance of parole!"

Re:Sensationalize much?

[Ash Vince]

The jury doesn't get to decide the sentence, which is really key to the whole thing.

Prosecutor:
"Ladies and gentlemen of the jury, you are only to decide on whether the law was broken, not if you don't like the law, not what you think the sentence should be. The only question is, did or did not the defendant steal a paper clip."

Jury (with no option): "Yes"

Judge: "20 years with no chance of parole!"

Sorry you miss an important point of a jury in most systems: They also decide if the person should be punished in the case at hand. They are free to decide that a guilty person is innocent if they do not think what they did should be against the law.

This is actually the case in the US too, although in the US the defence lawyer is not allowed to mention this in court. Here in the UK they are, and frequently it has been used to get people off even though they actually admitted to what they are accused of.

See the section here about the Official Secrets Act:
http://en.wikipedia.org/wiki/Clive_Ponting

I believe it used to be mentioned in the US frequently in trials of people accused of possession of weed so mentioning it was clamped down on although this is only a vague memory of mine from when I studied law decades ago. I just searched now and can't find any references on the web.

Re:Sensationalize much?

[Compaqt]

I didn't miss it. I know about jury nullification.

However, prosecutors work along with judges to intimidate juries into not exercising this right.

That's the point of the prosecutor's speech above. Judges also say the same thing ("you're only to decide on whether the defendant committed the act, not if the act actually should be illegal"). Along with the vague threat of contempt of court, most juries comply.

Punishment to fit the crime

[mangu]

Swartz did something wrong, for sure, he used a script to download documents. He was being rude, making the system slower for everybody else.

The DOJ reaction? Slap a 50 years sentence on him.

If that's the prosecutor's reaction, she is certainly not competent for the job she does, she should be fired and the bar association should start an investigation on her.

I think disbarment would be the proper solution. That would be the right level of punishment in her case. She demonstrated very plainly that she doesn't have the understanding of law needed to work on it professionally.

Re:Punishment to fit the crime

[eksith]

Agree with this 100%. At the most a public apology for making the system slow would have been plenty from Aaron. While we're at kicking out Ortiz, the same treatment should go to Stephen Heymann.

Re:Punishment to fit the crime

[hoboroadie]

I find your lack of familiarity with our system disturbing. It ain't justice, it just is.

Re:Punishment to fit the crime

[coastwalker]

The final outcome of this story is unfortunate and appears to condemn the American Criminal Justice system more than anything else.

Aaron did not do something without consequence however. He broke a trust in a club (People on campus) and spoiled the party for the members of that club. Free access had been granted to members of the club and his actions took that away. The club members are not trusted anymore and have to go through authentication to get at the data now because of his actions.

When you look around at society most of the petty unpleasantness of it all happens because someone was greedy, stupid or criminal. It is a shame that Aaron contributed to this slow slide into the straightjacket, whatever the justification.

Re:Punishment to fit the crime

[Anonymous Coward]

To get a promotion, prosecutors usually have to succeed in getting a conviction for a high-profile case. Swartz was that lucky chance.

Re:Punishment to fit the crime

[DarkOx]

I disagree honestly its better for society if people like Swartz are martyred.

As another poster pointed out everything is a felony now. You probably commit felonies everyday without even being aware. If something is illegal and someone does it they should be prosecuted. If we don't want to prosecute people for doing than it should not be illegal in the first, and the law needs to get off the books. Right now we have a legal briar patch, that can be used to find a reason to mess up someones life anytime they become inconvenient. Its fundamentally out of step with the idea of a free society.

Examples like Swartz can be a catalyst for change. I propose we create a "use it or lose it" Constitutional Amendment that would apply to both federal and state criminal codes. If you can convince a judge (in the case of a bench trial) or jury that the prosecutors in whatever jurisdiction are charging you with a crime that:

• Prosecutors knew or reasonably should have known that the same breach of law was done be others at least two times in the previous 12 years.

    The crime was not prosecuted for reasons other than lack of evidence

That should be considered a sufficient defense requiring you be found innocent of the charge and further voiding the law until the jurisdictions legislative body votes to renew or replace it. 12 years should be enough time that a single governor or president can't use it as back handed way to repeal laws s/he can't get the legislature to agree to do; but should still be an effective way to cull the criminal code of things like sodomy laws that are no longer really an issue, and other hastily enacted legislation of the day.

Re:Punishment to fit the crime

[reub2000]

Isn't that a failure of our lawmakers to set reasonable prison terms for crimes? The prosecutor doesn't set the maximum sentence for any crime, they just charge people with the laws written by the legislative body for their jurisdiction.

Re:Punishment to fit the crime

[Threni]

Has anyone explained why you have to pay for JSTOR? To deal with cataloguing the files, right? Aren't computers good at searching text? Would it cost much for universities to store the files themselves and allow text searching of the files? The files could be shared between universities so that they don't need to all store all of the files. It would make a vaguely interesting project, if it's not already available for free, to have the files shared via torrents and have some indexes of the files available. How does it make any sense in terms of encouraging people to read papers which are basically free of charge (in the sense that they're paid for ultimately by tax payers money) to have this system when you have to pay someone because they somehow control the files? Why can't they be stored in places other than just JSTOR?

Re:Punishment to fit the crime

[Anonymous Coward]

The DOJ reaction? Slap a 50 years sentence on him.

Oh, so now it's 50 years? Last week it was 30 years. Hyperbole does not help your case.

The fact is he would have had a few years and then be out. But that doesn't sound so impressive does it?

Re:Punishment to fit the crime

[abirdman]

He broke a trust in a club (People on campus) and spoiled the party for the members of that club.

Good, lets brand him a felon and then throw him in federal prison for 35 years. That will teach him to cut out the "petty unpleasantness" he was spreading, and stop inconveniencing the People on campus.

Re:Punishment to fit the crime

[Theaetetus]

If that's the prosecutor's reaction, she is certainly not competent for the job she does, she should be fired and the bar association should start an investigation on her.

I think disbarment would be the proper solution. That would be the right level of punishment in her case. She demonstrated very plainly that she doesn't have the understanding of law needed to work on it professionally.

So, you're saying you're in favor of ridiculously high punishments that have no relationship to what the accused did?

There are a lot of hypocrites in here.

Re:Punishment to fit the crime

[Anonymous Coward]

"American Criminal system", there is no room for "justice" in there.

Re:Punishment to fit the crime

[TapeCutter]

US prosecutors are little more than "free market" hagglers, they start off asking for a ridiculous price and negotiate downwards.

Re:Punishment to fit the crime

[TapeCutter]

Just because the prosecutors were wrong does not mean Swartz was right.

Re:Punishment to fit the crime

[luis_a_espinal]

Just because the prosecutors were wrong does not mean Swartz was right.

This. Thank you. It is unfortunate that Swartz took his life. He was treated unfairly and with the utmost unjustice, ironically by the DOJ. And he was a brilliant individual. But he did commit a wrong. It does not justify what was done to him (which ultimately led him to kill himself.)

But /. fans need to get this in their thick, stupid, avant-garde-wannabe skulls. He was not on the right, nor what he did - in this specific issue - constituted something positive or promoting of individual rights. This is a criticism of him, rest in peace, on this specific incident. It does not constitute an indictment on Swartz, the person as a whole, nor does it constitute a justification for what the authoritities did to him.

He might have been abused like Valjean, but he was not Valjean. On this issue, he was not.

OTH, the DOJ certainly played the Javert macabre part and relished on it.

Re:Punishment to fit the crime

[Hatta]

The DOJ reaction? Slap a 50 years sentence on him.

If that's the prosecutor's reaction, she is certainly not competent for the job she does

That's EVERY prosecutor's reaction. It's standard operating procedure, called plea bargaining. So what you're saying is that just about every prosecutor is unfit to hold that position. Which is quite true.

Re:Punishment to fit the crime

[abirdman]

You're right, but it shouldn't require establishing sterling bona fides to protect Swartz from 35 years in prison, or even the threat. One thing he most complained about was the lawyers absorbing all his money, and then moving in on his parents home. In the US judicial system we're innocent until proven guilty if the defendant continues to pay in to the legal system. And defense lawyers are the only profession to have arranged that non-payment of their bills is a criminal matter and not a civil matter, as it would be with not paying your surgeon, roofer, or computer consultant.

Re:Punishment to fit the crime

[mangu]

So, you're saying you're in favor of ridiculously high punishments that have no relationship to what the accused did?

The consequence of what Carmen Ortiz did was that a man died.

Harassing someone to the point of suicide is a crime, there are precedents for that.

Re:Punishment to fit the crime

[blueg3]

The DOJ reaction? Slap a 50 years sentence on him.

Seems like you don't have much understanding of the law if you confuse the media reporting the maximum theoretical sentence (which really isn't) with actual sentencing.

She demonstrated very plainly that she doesn't have the understanding of law needed to work on it professionally.

You generally don't get disbarment for people disagreeing with your prosecutorial discretion. Regardless, that wouldn't qualify as "understanding of the law". Swartz was charged entirely with crimes it seems very likely that he actually committed. He even demonstrated that he knew what he was doing was illegal and he was doing it with a purpose in mind. Starting off by charging someone with everything they can reasonably be charged with is pretty standard procedure for prosecutors.

You may not like the laws or how prosecution is done, and that's reasonable, but it's not the prosecutor at fault.

Re:Punishment to fit the crime

[Dcnjoe60]

Just because the prosecutors were wrong does not mean Swartz was right.

This. Thank you. It is unfortunate that Swartz took his life. He was treated unfairly and with the utmost unjustice, ironically by the DOJ. And he was a brilliant individual. But he did commit a wrong. It does not justify what was done to him (which ultimately led him to kill himself.)

What was the wrong he committed? He was allowed access to the documents he downloaded. The only wrong was that instead of sitting there clicking on each one and clicking save as, he had a script access them and save them. But as to the content itself, he was allowed to have access to it and to save it. Instead of JSTOR, you would have thought the RIAA was behind this.

Re:Punishment to fit the crime

[Anonymous Coward]

And defense lawyers are the only profession to have arranged that non-payment of their bills is a criminal matter and not a civil matter, as it would be with not paying your surgeon, roofer, or computer consultant.

I'm sorry WOW, WHAT?
I didn't know about that, can anyone verify this?

I thought when they arrest people they always say something along the lines of , ... if you can't afford a lawyer you get one for free ...,
But I get my US law info from slashdot and hollywood, so that may not be the best source.

Re:Punishment to fit the crime

[luis_a_espinal]

Just because the prosecutors were wrong does not mean Swartz was right.

This. Thank you. It is unfortunate that Swartz took his life. He was treated unfairly and with the utmost unjustice, ironically by the DOJ. And he was a brilliant individual. But he did commit a wrong. It does not justify what was done to him (which ultimately led him to kill himself.)

What was the wrong he committed? He was allowed access to the documents he downloaded. The only wrong was that instead of sitting there clicking on each one and clicking save as, he had a script access them and save them. But as to the content itself, he was allowed to have access to it and to save it. Instead of JSTOR, you would have thought the RIAA was behind this.

That. Usage of robots was/is prohibited by JSTOR. Whether that makes sense or not is not the issue. If someone doesn't like a service's TOS, the correct thing is not to use that service. It is not a ZOMG-kill-babies, but it is still a wrong.

Obviously, however, the DOJ's javirtistic response was completely unjustified. Considering that all the WS fat cats that almost drove us to the cliff are not in jail, or the people behind unmasking Valerie Plame's cover as a CIA operative (*cough* Karl *cough* Rove *cough*) still remain unpunished, the DOJ's handling of this petty case is an obscene miscarriage of the law beyond description.

Re:Punishment to fit the crime

[Mr. Slippery]

Usage of robots was/is prohibited by JSTOR.

Then its up to JSTOR to detect and block bots.

Putting a web server on the internet means that people will connect to it with various types of software. You don't get to determine what that software is -- a TOS that says "no IE" is meaningless, and so it one that says "no bots"; and using IE or bots to access that site, in and of itself, is not a wrong.

Re:Punishment to fit the crime

[bzipitidoo]

You're so sure Mr. Swartz was not in the right that you preemptively call everyone who disagrees with you stupid, huh?

No, it is publishers who are in the wrong. If you think JSTOR is some kind of saintly, charitable effort, and point to their non-profit status as evidence, I suggest you take a harder look. Research publishing is a huge racket. We, the people, pay for a great deal of research, and then allow these publishers to lock it all up, charge huge fees for access, and bless the whole affair by calling it privatization. That they do it on behalf of a few school rather than for themselves, and that the access fees are in the form of tuition rather than straight up fees, does not make it any less unfair. JSTOR has willingly aided that injustice, providing cover for the schools, until prodded hard.

Re:Punishment to fit the crime

[sacrilicious]

Swartz did something wrong, for sure, he used a script to download documents

I must go on record as disagreeing with you about this point. As far as I'm concerned, Swartz did *nothing* wrong and was in fact foresighted and courageous. We could use a million more just like him.

Re:Punishment to fit the crime

[jedidiah]

Once you get beyond a very short period of time and the fact that you are now a FELON, those extra decades don't mean much.

You are going to be destroyed either way.

That is kind of the whole point of this thing.

YOU can have YOUR life destroyed over trivial shit if you happen to be unlucky enough to get noticed. All it takes is one jack*ss hoping to make a name for herself.

Re:Punishment to fit the crime

[SilverJets]

Usage of robots was/is prohibited by JSTOR.

Then its up to JSTOR to detect and block bots.

Putting a web server on the internet means that people will connect to it with various types of software. You don't get to determine what that software is -- a TOS that says "no IE" is meaningless, and so it one that says "no bots"; and using IE or bots to access that site, in and of itself, is not a wrong.

When you are selling access to your servers to academic institutions you most certainly do get to determine how those users then connect to you, how much they can download, etc. If the academic institution doesn't like those terms they can go elsewhere for the content.

Re:Punishment to fit the crime

[ulricr]

There was no sentence yet! This 50 year thing is pure worse-case speculation Also, "Prosecutors Intended Six-Month Sentence for Aaron Swartz" http://www.bloomberg.com/news/2013-01-17/prosecutors-intended-six-month-sentence-for-aaron-swartz.html

Re:Punishment to fit the crime

[ulricr]

Aaron Swartz must have thought was he was doing was wrong, since he broke into a computer wiring closet and hid a computer there to run his script to get all of that stuff out there. He even covered his face to security cameras

Re:Punishment to fit the crime

[Theaetetus]

So, you're saying you're in favor of ridiculously high punishments that have no relationship to what the accused did?

The consequence of what Carmen Ortiz did was that a man died.

Harassing someone to the point of suicide is a crime, there are precedents for that.

A man who had previously written about his struggles with depression. There's no evidence that Ortiz' actions pushed him to suicide, so you're really asking for ridiculously high punishments without any evidence that the person is guilty and without due process, a far cry from justice.

In fact, the exact same argument you're making could be made about Swartz' own lawyers, who said that he was facing 30 years in prison and that the minimum cost to defend himself would be $1.5 million. Neither of those are statistically true, particularly in this case where there was no breaking and entering, no trade secret theft, and most importantly, no factual disputes: Swartz certainly wasn't going to argue that he never downloaded those documents from JSTOR, that he didn't change his MAC address when he was blocked, and that he didn't hook his laptop up to one of MITs network closets. So, right there, all of your major discovery costs disappear, and you're simply making a legal argument. The cost would be closer to $50-100 thousand, still not a drop in the bucket, but an order of magnitude different from what his own lawyer was scaring him with. Similarly, those 30 years would be applied only if the court didn't impose the sentences concurrently, and statistically, he'd be more likely to get 3-5 years tops. Again, an order of magnitude different.

Ortiz certainly scared Swartz, but that's her job. His own attorneys, who actually had a duty to protect him, were the ones who failed to reassure him. Why aren't you calling for their disbarment?

Re:Punishment to fit the crime

[Anonymous Coward]

Not exactly. Go here for a summary of things he did to circumvent access restrictions (in section I). Even this may not justify the way he was treated but he did more than use a script to automate saving documents.

Re:Punishment to fit the crime

[Anonymous Coward]

Agreed.

There are a lot of posts here that a 'crime' was committed and that punishment must be doled out. It's quite frightening to think that, in the scope of what Swartz did, anything more than a public slap on the wrist, a permanent mark on his record, and loss of network resource access is entirely acceptable.

There's a glaring lack of perspective by a large amount of this community, and quite frankly, that's a little disturbing.

Re:Punishment to fit the crime

[Belial6]

Could he have? I don't know what the content of the papers were, so I would ask... Could he have gone somewhere else for the content?

Re:Punishment to fit the crime

[TimboJones]

Absolutely. So why is the DOJ involved?

Re:Punishment to fit the crime

[idontgno]

"Wrong" and "against the rules" are not the same.

I'm sure that Aaron, and many other people, believe that arbitrary commercial limitations to access to academic material is the real wrong. "Information wants to be free" has been the punchline of snide geek jokes for so long that people forget it was once, and still is for some, a legitimate manifesto.

Aaron took evasive, "sneaky" action because he knew what he was doing violated JSTOR's and MIT's rules. He did the action at all because he believed that he was still basically ethically right. He wasn't looking for martyrdom. I would speculate that even at the end, he wasn't. It's just the disproportionate and heavy-handed cost of violating the legal equivalent of a EULA must have overwhelmed him and left him feeling alone and helpless.

Re:Punishment to fit the crime

[Anonymous Coward]

Unless you put in some form of restriction on how much can be downloaded per user, the institution is complicit in the act and should itself be barred from any internet access and stripped of all rights.

Captcha: thinking

Re:Punishment to fit the crime

[Isaac Remuant]

Swartz did something wrong, for sure, he used a script to download documents. He was being rude, making the system slower for everybody else.

The scariest thing is that I'm sure many of us have unawarely done similar things with crawlers, bots or other scripts that could easily be construed as "hacking" or similar by these prosecutorial vultures.

Between patents, copyright, laws about what you can do online with information, etc. What's the change a programmer is not guilty of something somewhere if a government decides to come in full force against you? And considering the law is about having enough money to endure trial.

Aren't we pretty much helpless?

Re:Punishment to fit the crime

[Belial6]

6 months for the crime. 6 1/2 years for demanding a trial.

Re:Punishment to fit the crime

[doom]

He was not on the right, nor what he did

Oh: you mean you know what he did? I don't. Once you get the lawyers involved the people who really know things all shut up.

Re:Punishment to fit the crime

[Anonymous Coward]

Perhaps the law disagrees, but I find what could conceivably be 2-3 lines of scripting falling under the "robot" category a pretty ridiculous stretch. Should I fear for my freedom if I use things like Grease Monkey or even a programmable keyboard?

In a fair world prosecutors should have to prove intention to DoS.

Re:Punishment to fit the crime

[im_thatoneguy]

The DOJ reaction? Slap a 50 years sentence on him.

Pro-Schwartz Propaganda.

- He faced 0-6 years if he went to trial. He could have ended up with probation if the judge felt like it.
- Schwartz was offered a 4 month plea bargain.

If someone downloaded files off of my server without permission and then circumvented my clear efforts to block their access to my server I would ask for jail time too. I don't care if the data on MY SERVER is public access or not. If I had a yard sale and someone asked to use the bathroom and I gave them permission and then they snuck in later in the night through an open window and I threw them out and then the next day they did it again--I don't care if they just wanted to look at my non-copyrighted phone book or not it's still burglary.

Aaron Swartz broke the law. He very clearly accessed a computer that he had been explicitly banned from accessing. The defense "well he didn't use very sophisticated means to circumvent security" is bullshit. That's like a script kiddie saying "well sure I was clearly prohibited from accessing that file server, but the security loophole I used was really basic." Or the social engineering hacker who just calls and says they forgot their password.

Are you unhappy with the wording of the law? Great. Change it. Go to trial, get publicity, share the unjust nature of the law with the public and mobilize efforts to make it more just. By definition acts of civil disobedience break the law. You have to be ready to live with the consequences of that. Because if you're wrong and you are alone in thinking that it's an unjust law then you're just breaking the law.

Re:Punishment to fit the crime

[Solandri]

But /. fans need to get this in their thick, stupid, avant-garde-wannabe skulls. He was not on the right, nor what he did - in this specific issue - constituted something positive or promoting of individual rights.

That depends on at what level of abstraction you view the situation. The irony behind all this is that Swartz was targeted because certain organizations were afraid he was going to redistribute their publications without compensating them. Yet those organizations are doing the very same thing - redistributing papers (for profit even) without compensating the original authors. Yes the authors gave consent while JSTOR did not. But given the state of academic publishing in journals, I think most of the authors would agree they had to give that consent under duress - "publish or die." Under normal contract law, that would invalidate the contract. But it persists in journals because "that's the way it's always been."

At that point, you get into a "is it wrong to steal back property obtained via an extortion scheme?" conundrum. While within my personal view of law and ethics I don't condone his actions (I believe normalizing the situation with journals needs to happen with changes in the law, not vigilante action), I can certainly understand how in other people's view (primarily those in the civil disobedience camp) he was in the right.

Re:Punishment to fit the crime

[Solandri]

Incidentally, the first legal change I would suggest to fix the situation with journals would be to make it illegal for research paper authors to assign copyright to the journal. They can give the journal a license to publish and redistribute their paper. But they retain the copyright and can reproduce their paper in any other journals or even a website if they wish.

Re:Punishment to fit the crime

[Dcnjoe60]

I agree that "wrong" and "against the rules" are not the same. But, what exactly was the full force of the law being brought on him for? He did violate the policy, but he was entitled to the content. As such, he was not guilty of a crime. Exactly what were they going to prosecute him for? There is definitely a wrong committed here. I'm just not sure he is/was the one guilty of it. He wasn't even violating an EULA.

All he did was violate a campus computer policy. Hell we all did that in the 70s when we played star trek on the PDP 10. Does that mean the justice department should come after all of us?

From the Jstor website: "It is a priority for JSTOR to ensure that our website and the content we archive is available and accessible to all of our users."

I guess they mean only accessible to all of their users who don't use it too much.

Re:Punishment to fit the crime

[Anonymous Coward]

You can get a public defender if you can't afford your own counsel. In my experience, however, they require you to do a financial disclosure to determine if you are eligible for the PD and even if you do get your free lawyer, they are so overwhelmed with cases that they don't have the time to put up a quality defense for you. Mine pushed hard to get me to take a plea deal on a felony assault and battery charge when it should have been clear that it was self defense (I've got lots of really good things to say about both the NYPD and the New York CIty District Attorneys Office BTW). I ended up firing the Public Defender and hiring my own lawyer. He was able to get the charges dismissed pretty quickly, with the only caveat being that I kept my nose clean for 3 years.

Re:Punishment to fit the crime

[abirdman]

If JSTORE didn't want to make the archives available to scripts, it would have been easy to tighten the access. When a service publishes their data in an openly accessible way-- with an API, or with a query front end, or just the file-system shell interface, this is an indicator the data is OK to access in a script or batch job.

No password was required on the MIT network (hence no hacking on Swartz's part), and the JSTORE documents were available in a shell, which indicates JSTORE didn't do much to establish their value-add to legitimize their ownership of this IP. Just saying.

Re:Punishment to fit the crime

[abirdman]

The closet was not locked. Hence, no break-in.

Re:Punishment to fit the crime

[mangu]

There's no evidence that Ortiz' actions pushed him to suicide

There's corpus delicti, the fact is that he did commit suicide while being harassed by Ortiz. She had the motive, the means, and the opportunity,

If she were anyone else but a federal prosecutor, she would be in custody right now, she would have been indicted, with a mugshot and fingerprints filed at the county jail.

Ortiz certainly scared Swartz, but that's her job

It's not her job to scare someone to death.

Her job is to promote justice, not to cater to the media industry by being their scarecrow.

Re:Punishment to fit the crime

[Theaetetus]

There's no evidence that Ortiz' actions pushed him to suicide

There's corpus delicti, the fact is that he did commit suicide while being harassed by Ortiz. She had the motive, the means, and the opportunity,

The motive? I assume you have some proof, since you're accusing her of wanting to kill him.
As for means and opportunity, since he committed suicide, by definition, he had the means and opportunity.

If she were anyone else but a federal prosecutor, she would be in custody right now, she would have been indicted, with a mugshot and fingerprints filed at the county jail.

Under what statute? Contrary to Slashdot belief, "I don't like you" isn't actually a valid criminal statute. This happened in Massachusetts, so the relevant code is the Massachusetts penal code, MGL Part IV. I'd start looking in the "crimes against the person" part, but good luck finding one that applies.

Ortiz certainly scared Swartz, but that's her job

It's not her job to scare someone to death.

Her job is to promote justice, not to cater to the media industry by being their scarecrow.

She had no way of knowing that he'd commit suicide, unless you're saying that it was foreseeable... and if you are, then you're also alleging that many other people knew about his imminent suicide, and so many other people failed in their duty, most importantly, his lawyers and doctors. But you aren't calling for their blood, I notice...

And where's your evidence for this foreseeability and intentional harassment to cause him to commit suicide? Do you have a post three weeks ago from someone saying "gosh, Ortiz is going to drive him to commit suicide," or a post from Ortiz saying "I just can't wait until you commit suicide" or even a post from Swartz saying "if this keeps up, I'll commit suicide"? No, of course not. No one saw this coming, so it's unreasonable to accuse Ortiz of some psychic-level magic powers based purely on your own hindsight.

Re:Punishment to fit the crime

[Theaetetus]

There's no evidence that Ortiz' actions pushed him to suicide

There's corpus delicti, the fact is that he did commit suicide while being harassed by Ortiz. She had the motive, the means, and the opportunity,

Also, you're using that term incorrectly. Corpus delicti refers to the doctrine that before someone can be convicted of committing a crime, it must be proven that a crime occurred. A dead body is not, in and of itself, proof of a crime. People die every day, for many non-criminal reasons. That he felt he was harassed is also not proof of a crime. Plenty of people feel harassed or stressed for many non-criminal reasons. That he even committed suicide, due to his frustration and despair at what his lawyers were telling him, is also not proof of a crime. You need to actually prove that a crime occurred, rather than just inferring one from a result.

Or, in logical terms, "If [someone committed murder], then [there's a dead body]" or A->B may be true, but the converse - "if [there's a dead body], then [someone committed murder]" or B->A is not necessarily true. And your only evidence of murder is the dead body, which means you haven't proven anything.

Re:Punishment to fit the crime

[Anonymous Coward]

It is not morally wrong to do something merely because said thing is prohibited.

After gay rights, information access is shaping up to be the next big civil rights issue. "If you don't like the terms, don't use the service" reads about the same as "if they don't serve the coloreds, go to a different restaurant."

You don't think it's at the same level now because it's just barely moving from kids "pirating" movies and music into the realm of academic scholarship.

Unfortunately, we are staring down the barrel of a future in which access to knowledge and understanding is not a problem of what is possible, but what is permitted, and it looks like what is permitted will be decided based not on what is best for society, but what is best for a vanishingly small population of rent seekers who can't even claim to have created the knowledge they control. Your stance, intentional or not, amounts to support of that future.

I hope others like Aaron are able to break that possibilty, and get us on track to a world where permission is rarely needed and money is made by people who maximize what others can learn and do rather than find ways to limit and control it.

Re:Punishment to fit the crime

[Anonymous Coward]

To be fair, the content that was stolen was mostly older content that JSTOR paid to have scanned, OCR'd and search indexed. Then, after doing that work, they have to pay publishers a cut of the fee, and the rest goes into buying servers/bandwidth/developers etc.

Anyone who actually wants this content could have gotten it for free in dead tree format at their local library (or whatever university library it was published in). If Mr. Swartz had started a parallel effort to digitize this content, run it through OCR, index it in a search engine, and then put up servers to serve it up to the public totally for free, then all he has to deal with is figuring out the copyright expiration in the several countries where this content was published (hint, it's different in the EU than it is in the US)...

They are a non-profit... That means they are doing what they are doing because they believe in what they are doing, not because they will make money at it... In fact, during the time I worked there, they consistently lost money. All in the hope of getting this content out to people who need it...

So, if you are willing to fire up your scanner, donate a few thousand hours, and a few servers and a couple of high-bandwidth links, then you have a right to whine...

Even if you aren't willing to do this, and you can't afford the content, you can get in your car, and go down to any local community college, or any local library, and access this content for free (this is your taxes at work).

Finally, go to their site... Check out what they are already giving away. When I left they were trying to figure out a way to give away more of their content for free.

Re:Punishment to fit the crime

[chrismcb]

He was not on the right

How do you figure? Because he was being prosecuted?
Two grand parent posts back claims " Free access had been granted to members of the club and his actions took that away." Which seems to imply that he had the right to download the files. So what did he do that was wrong?

Re:Punishment to fit the crime

[Anonymous Coward]

Absolutely. However breaking a ToS agreement is different from breaking the law. If I break a ToS agreement I should be looking at a punishment along the lines of revoking my right to use the service so long as I am not also breaking a law and last I knew there are no laws against using a bot to download free files.

Re:Punishment to fit the crime

[ulricr]

he violated the JSTOR Eula against using bots AND he did that not to download the documents for his own personal use, but for the purpose of redistributing them outside of JSTOR. This is his own admission. it's totally irrelevant whether he had the rights to read the documents, he never had any intentions of reading 4 million documents. also, he crashed the computer in the process by overwhelming the server

Re:Punishment to fit the crime

[strikethree]

The DOJ reaction? Slap a 50 years sentence on him.

See? It is shit like this that is causing so much craziness in the world. He was NOT facing 50 fucking years. Not even close. It was more like 30 fucking years. Still absurd in the extreme but when you nearly double that number for "effect", it devalues everything that was going on when that number is repeated and the lie is revealed.

Seriously, just cut out the insane hyperbole. I am losing my mind from seeing everyone running around like the sky is falling and overly exaggerating everything. ... and yes, the sky DID fall for someone, but seriously. Just. Stop.

Re:Punishment to fit the crime

[Dcnjoe60]

he violated the JSTOR Eula against using bots AND he did that not to download the documents for his own personal use, but for the purpose of redistributing them outside of JSTOR. This is his own admission. it's totally irrelevant whether he had the rights to read the documents, he never had any intentions of reading 4 million documents. also, he crashed the computer in the process by overwhelming the server

Take your points individually.

1) He violated the EULA - is that criminal? No, it means you lose access.

2) His intention was to use the documents, not for his personal use, but for redistributing them outside of JSTOR - is that criminal? No, JSTOR actually allows that. The only issue is the quantity of documents he had.

3) It is irrelevant whether he had the rights to read the documents, he never had any intentions of reading 4 million documents - is that criminal? No, he had the rights to the documents. Whether he read them or not does not change that he had the right to have them.

4) He crashed the computer in the process by overwhelming the server - is that criminal? It could be, but only if the intention was to crash the server. Was his script malicious with the intent to crash the server or perform a DOS attack? If not, then this is probably not criminal, either.

So, all that you say, while true, does not explain why the full force of the Justice Department was involved. What federal crime or felony did he commit? Instead, it sounds like there should be an investigation as to who has undue influence that was able to get the JD involved in this case. That seems the real story.

Re:Punishment to fit the crime

[luis_a_espinal]

Could he have?>

He could have refrained from accessing said content. Access to said private content was not an undeniable right (like having access to food.)

I don't know what the content of the papers were

Scientific papers behind a paywall. Nothing that warranted the DOJ's sadistic hard-on on the poor kid.

, so I would ask... Could he have gone somewhere else for the content?

Probably not. But then again, my position in this matter (which I understand many won't agree) is that if the content was only available at that source, and yet he didn't agree to the source's TOS, then the only valid alternative is to refrain from reaching said content.

It's like anything. If I'm wearing sandals, and a restaurant requires patrons to wear dressed shoes, I simply do not go to that restaurant or I change my sandals for the appropriate footwear. Or if I'm carrying a concealed weapon, and a establishment (say, IKEA) does not want me there because of that, I either leave my gun, or I go somewhere else.

If I'm selling lemonade but I estipulate that I only accept bills smaller than $20, I don't have to sell it to you if you disagree with my request.

My need (or in this case desire) to have access to something produced or owned by another entity can only be satisfied as per the owning entity's rules and regulations.

“Among individuals as among nations, the respect to other people's rights is peace” - Benito Juarez.

Re:Punishment to fit the crime

[HereIAmJH]

Usage of robots was/is prohibited by JSTOR.

Then its up to JSTOR to detect and block bots.

JSTOR had a solution for violation of their terms of service. They notified their customer, MIT, that they were going to suspend their service if they didn't correct the problem.

Putting a web server on the internet means that people will connect to it with various types of software.

I don't believe JSTOR had their server on the Internet. Mr Swartz first hacked MIT's network (kept changing his MAC every time the MIT admins blocked access), and eventually broke into a network closet and installed his equipment.

You don't get to determine what that software is -- a TOS that says "no IE" is meaningless, and so it one that says "no bots"; and using IE or bots to access that site, in and of itself, is not a wrong.

Bullshit. If I want to put up a website with a TOS that says you can only access it with a specific version of Safari, I can certainly, legally, block every single agent that isn't from the browser that I want. I can say you can only access with IE on Monday, Firefox on Tuesday, and Chrome on Wednesday. And if I find someone changing their agent id to bypass that, I can block their IP or their net block. It would be my web site and I'm free (as a US citizen) to disallow access to anyone I like for any reason that doesn't violate Federal discrimination laws. If you don't believe me, log into WOW and install a bot.

But to be clear, Mr Swartz wasn't being prosecuted for violating JSTOR's TOS. He was being prosecuted for breaking into MIT's network and theft of services, which happened to include JSTOR's offerings.

Re:Punishment to fit the crime

[HereIAmJH]

But given the state of academic publishing in journals, I think most of the authors would agree they had to give that consent under duress - "publish or die."

Are there requirements that they publish to JSTOR? Does JSTOR require exclusivity? If the answer to either of those is no, then wouldn't the solution be to create a web site where academic papers can be published openly? We do it all the time for software and code.

It seems to me that competition in this case might have been a better solution than civil disobedience. Particularly if you aren't willing to accept the consequences for your actions.

Re:Punishment to fit the crime

[Belial6]

The parent poster said he should have gotten it from a different source. That apparently could not be done. I understand your point, but interestingly enough, every one of your examples could be procured through other sources.

Re:Punishment to fit the crime

[previewlounge]

By over-prosecuting, the prosecutor proved herself inadequate to the task of seeking appropriate justice. Not only but also, Ortiz and Stephen Heymann made a mockery of the law. The nightmare team of Ortiz and Heymann sought to achieve harm rather than an appropriate slap over the wrists. What is the essence of their convictions? What nightmarish lives are Ortiz and Heymann living? We shall never know, but one thing is certain, both Ortiz and Heymann are not fit to play a role in the justice system. An investigation into the reasons why Ortiz and Heymann chose to ride roughshod over the spirit of the law would be highly appropriate at this time, and would, quite possibly, go for a long, long time.

Re:Punishment to fit the crime

[previewlounge]

One word: hacker culture. Okay, two. Anyway, Hacker culture is what MIT is all about. The only crime committed here is by Ortiz and Heymann. The nightmare team of Ortiz and Heymann did their best to flaunt the spirit of the law by attempting to twist it to their purposes.

Three Felonies a Day

[CuteSteveJobs]

> The decision whether to charge a defendant, and with what -- is almost entirely discretionary. ... > Hope you enjoyed that freewheeling culture while it lasted, kids — now Everything is a Crime."

Once to be charged with a crime there needed to be a criminal intent. No longer. There are so many ridiculous laws on the books now that you can't be a citizen without breaking some laws, and zealous prosecutors can pluck those laws out of obscurity to target anyone the don't like, or even just choose some unlucky sap they pick on to boost their career.

There's a good book by ex-FBI cop & criminal lawyer Dale Carson who explains these people have run out of big time criminals to prosecute, and so now the justify their existence by filling jails with poor saps who meet this criteria, or they would be laying off cops, judges and prisoners for lack of business: http://www.amazon.com/Arrest-Proof-Yourself-Ex-Cop-Reveals-Arrested/dp/1556526377

Here's a real life case where US officials made life hell for a California marine biologist for no other reason than they have big swinging dicks and they could: http://www.japantimes.co.jp/text/eo20120803gw.html

This has been going on for a long time. Aaron is the first person to draw it to the wider public attention: "Legions of government lawyers inundate targets with discovery demands, producing financial burdens that compel the innocent to surrender in order to survive. Silverglate, a civil liberties lawyer in Boston, chillingly demonstrates how the mad proliferation of federal criminal laws — which often are too vague to give fair notice of what behavior is proscribed or prescribed — means that "our normal daily activities expose us to potential prosecution at the whim of a government official." Such laws, which enable government zealots to accuse almost anyone of committing three felonies in a day, do not just enable government misconduct, they incite prosecutors to intimidate decent people who never had culpable intentions. And to inflict punishments without crimes. The more Americans learn about their government's abuse of criminal law for capricious bullying, the more likely they are to recoil in a libertarian direction and put Leviathan on a short leash."

Re:Three Felonies a Day

[Anonymous Coward]

Once to be charged with a crime there needed to be a criminal intent.

So manslaughter wasn't a crime? Because by definition, there can't have been a criminal intent (otherwise it would have been murder).

Re:Three Felonies a Day

[Anonymous Coward]

We do need more protection from federal government overreach. But Swartz is a lousy poster boy, because physically breaking into a network and committing massive copyright violation really is a criminal offense in many places, and it was reasonable to charge him.

Ironically, many of the people screaming bloody murder over the Swartz prosecution seem to also want to impose stronger gun control, registration requirements, etc. What do you think prosecutors are going to do with those laws?

Re:Three Felonies a Day

[JaredOfEuropa]

The intent does not need to be to kill. Intending to merely cause injury but ending up killing someone would be manslaughter. Inadvertedly killing someone in the process of committing some other crime as well (called constrcutive manslaughter IIRC). Even criminal negligence resulting in death (counts as manslaughter) has criminal intent, in that it implies a conscious (and criminal) decision to neglect ones duty. So: the definition of various types of manslaughter do indeed imply criminal intent.

Re:Three Felonies a Day

[gmuslera]

The problem is not that they can. As they can target everyone, they could pick specifically the people that causes them trouble (and maybe pick others to not be so obvious). Or maybe not the visible leaders, that maybe could have cash enough in a way or another for a good defense, but the followers (or take their houses anyway).

Re:Three Felonies a Day

[h4rr4r]

Copyright violation should never be a criminal offense. It should be purely civil. Society already grants these people a monopoly for what amounts to forever, and now they want us to enforce it with our criminal justice system as well?

Re:Three Felonies a Day

[Anonymous Coward]

So lets make up shit post? He also did pee outside. Next.

Re:Three Felonies a Day

[Stolpskott]

We do need more protection from federal government overreach. But Swartz is a lousy poster boy, because physically breaking into a network and committing massive copyright violation really is a criminal offense in many places, and it was reasonable to charge him.

Whether or not he should be prosecuted is one thing, but for (presumably) one count of Breaking & Entering, and multiple counts of Copyright Violation, the circus that grew up around Swartz before the state dropped those original charges was disproportionate.
As for the punishment, Massachusetts State Law on the subject of Breaking & Entering with intent to commit a felony (what he was originally charged with) has this to say:
"Section 16. Whoever, in the night time, breaks and enters a building, ship, vessel or vehicle, with intent to commit a felony, or who attempts to or does break, burn, blow up or otherwise injures or destroys a safe, vault or other depository of money, bonds or other valuables in any building, vehicle or place, with intent to commit a larceny or felony, whether he succeeds or fails in the perpetration of such larceny or felony, shall be punished by imprisonment in the state prison for not more than twenty years or in a jail or house of correction for not more than two and one-half years."

That in itself raises questions - Swartz's intention was to commit Copyright Violation, which in itself is only a felony under certain circumstances - Copyright infringement is a felony only if the infringement involved reproduction or distribution of at least 10 copies of copyrighted works worth more than $2,500 in a 180-day period, or involved distribution of a "work being prepared for commercial distribution" over a publicly-accessible computer network. As we are talking about much more than 10 articles, where access to the articles is free under restricted circumstances, which were downloaded over a period of a few weeks, a felony charge is not beyond the bounds of possibility with a penalty of 20 years in State Prison, or a Correction Facility for 2.5 years. However, that charge was dropped in early 2012.
Carmen Ortiz et al then opened a case based on Wire Fraud, Computer Fraud, unlawfully obtaining information, and reckless damage. Effectively, this was to be a prosecution under 18 USC 1343 - Fraud by wire, radio, or television, and 18 U.S.C. 1030 - Computer Fraud and Abuse Act. Both of those pieces of legislation are so vaguely worded that their use as legislative statues cannot easily be established by reading the Acts themselves, so a body of case law needs to be built up to establish the actual meaning of the wording of the Acts. In the case of 18 USC 1343, the law has been on the books since the 1950's, so there is a substantial (but not entirely consistent) body of case law to define its scope. In the case of CFAA, the body of case law is still being formed so the result is probably a crapshoot, with the prosecutors hoping to use Swartz's violation of the JSTOR ToS as grounds for prosecution... which brings me to the question of the day - when was the last time anyone (apart from me) read through the ToS for a web site or the EULA for a piece of software to see what it did or did not allow, and whether your intended use would violate those ToS, thus making you potentially liable for prosecution under the CFAA?

Sorry for raising what might be a Straw Man, but I tend to assume that if you give someone in power a weapon, they will at some point find a way to use it in a way that is more in their own interest than the peoples' interest. Call me a cynic...

Re:Three Felonies a Day

[Anonymous Coward]

Yes, there are plenty of laws on the books for putting people away. But is it right? Governments have incredible power over the public, and that means government workers have incredible power over the public. They have a moral obligation to exercise it responsibly and not to abuse that power. Silverglate gives cases where they decide they want to get someone, and just sit there going through ambiguous laws until they find one that can stick or the target runs out of money and takes a plea. They can get your for obscure laws you've never heard of, and when they do no one besides your family will give a fuck. Happens all the time.

Carson: "The founders of our republic understood even before strong governments existed that the power of the state to prosecute and punish was overwhelming. Their first act after adopting the Constitution was to amend it to increase the rights and protections of individuals."

We have lost that balance. There is no check on that power. Look at the Nancy Black case. You would think the NOAA officials doing this would say "Hey! We've been real dicks. Maybe we should stop and do something useful with taxpayers money instead of making this woman's life hell?"

Re:Three Felonies a Day

[dkf]

So manslaughter wasn't a crime? Because by definition, there can't have been a criminal intent (otherwise it would have been murder).

That's a variation on criminal negligence. There was no intent to kill, but there was intent to take insufficient care to ensure that nobody was killed. The "insufficient care" is (of course) rather tricky, but that sort of thing is why there is trial by jury for serious crimes and not just an administrative action by the prosecutor's office.

Re:Three Felonies a Day

[Entropius]

these people have run out of big time criminals to prosecute, and so now the justify their existence by filling jails with poor saps who meet this criteria, or they would be laying off cops, judges and prisoners for lack of business:

This here is the problem: it is so hard to reduce the size or scope of any aspect of the government, because that means a loss of prestige for someone somewhere, that government workers lacking something of substance to do concoct things to expand the scope of their agency, like a rodent needing to file its teeth whether it has something constructive to gnaw or not. This is what's given us the TSA; this is what's given us this sort of prosecutorial nonsense; this is what has created the monster that is the DMV in any major city; and this is more broadly the problem with agencies like the Department of Agriculture. I've lived in other places and in Washington DC (a crime-riddled shithole); oddly enough, the police in DC are the least threatening, since there is so much real crime for them to worry about, they (generally) have their priorities in order and don't harangue people for stupid stuff.

Re:Three Felonies a Day

[blueg3]

Was he actually charged with copyright violation?

Wow, nice lying

[SmallFurryCreature]

He wasn't sentenced (or even found guilty yet) and the claim wasn't for 50 years. But hey, facts happen to other people right?

The moment you start spouting nonsense like this, the rest of your opinion is automatically suspect as well. After all, if you don't know the facts, how can you form an accurate opinion?

Cases like this get very emotional but if you ever want to change anything, you need to argue with facts, not with made up stuff. Liars like mangu just make it easier for people on the other side to dismiss the opposition as being ill-informed morons whose rants have no value.

Re:Wow, nice lying

[Anonymous Coward]

how can you form an accurate opinion?

An accurate opinion about a subjective matter (was this right or not)? Interesting. The opinion exists whether or not you think it is 'accurate' (an opinion of someone's opinion). It might change in the future for whatever reason, but that is irrelevant.

Re:Wow, nice lying

[Anonymous Coward]

Fact: Swartz faced a prison sentence of 50 years

Re:Wow, nice lying

[Anonymous Coward]

SmallFurryCreature is right! People charged with huge prison sentences are happy and carefree until the moment they are convicted. And if they get found innocent, they forget about it all the next day. Well they will be bankrupted by lawyers fees but SmallFurryCreature tells me statistically these people are more likely to win the state lottery. Personally I think he's full of shit, but he sounds so sure of himself and you have to respect that.

Re:Wow, nice lying

[Anonymous Coward]

No, not even the prosecutors thought that. Prosecutors told the defense that if it went to trial and he was found guilty on all counts he would be looking at 7 years.
http://www.thedailybeast.com/articles/2013/01/15/aaron-swartz-s-unbending-prosecutors-insisted-on-prison-time.html

Peters says the prosecution tried to further pressure him by saying the judge was pro-government and a tough sentencer. It was suggested that Swartz stood to get seven years if he lost at trial. Peters felt that any prison time at all would be excessive.

Re:Wow, nice lying

[Anonymous Coward]

You seriously misrepresent the OP. He merely stated facts.

Re:Wow, nice lying

[Anonymous Coward]

Well, one thing is what he was charged with and the penalties those charges carried and a different thing is what some people think or say, but I would say the later is hardly a fact which is the point that seems to be debated here.

OK, 35 years, then...

[mangu]

Sorry, I remembered wrong, it wasn't 50 years, just 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.

Do you feel better now? Is 35 years in prison plus a $1 million fine the correct punishment for using a script to download documents?

Re:OK, 35 years, then...

[stenvar]

We have an adversarial legal system: the prosecutor throws what he can get away with at the defendant, the defense attorney tries to defend against it, and the judge and the jury make a decision. If the prosecutor overreaches, the case will collapse very quickly.

(I can't quite tell: are you simply not familiar with how the US legal system works, or are you deliberately misrepresenting it?)

Re:OK, 35 years, then...

[jkflying]

(I can't quite tell: are you simply not familiar with how the US legal system works, or are you deliberately misrepresenting it?)

mangu is pointing out the fact that it doesn't seem to be a very good system.

Re:OK, 35 years, then...

[Anonymous Coward]

We have an adversarial legal system: the prosecutor throws what he can get away with at the defendant, the defense attorney tries to defend against it, and the judge and the jury make a decision. If the prosecutor overreaches, the case will collapse very quickly.

You are basically right in what you write, except...

Even in your adversarial system, there is neither a reason nor an expectation that the prosecutor should initially be making what were basically frivolous claims that go beyond all sane reason. Sure enough a prosecutor will initially often enough be asking for more than is strictly warranted, but 35 years for using a script to download some files that were intentionally freely accessible within the uni network? That is like asking for the death penalty in a case where someone slapped someone else during a barroom brawl, or something like that. That woman needs a healthy dose of "welcome to reality". Which, in the opinion of many fine and upstanding citizens, she could best get while spending quality time at home after being relieved of a job that is apparently beyond her professional and personal level of competence.

Re:OK, 35 years, then...

[SuricouRaven]

You forgot the bit that comes before the trial, where the prosecutor makes terrifying threats in an effort to intimidate the suspect into a guilty plea in the hope of leniency, regardless of actual guilt or likely outcome if it had gone to trial.

Re:OK, 35 years, then...

[Anonymous Coward]

lol, not even Mitnick got a so harsh sentence

Re:OK, 35 years, then...

[Anonymous Coward]

That is terrorism. Literally.

Re:OK, 35 years, then...

[Anonymous Coward]

You forgot the bit that comes before the trial, where the prosecutor makes terrifying threats in an effort to intimidate the suspect into a guilty plea in the hope of leniency, regardless of actual guilt or likely outcome if it had gone to trial.

Er, terrifying threats? Not sure how much more terrifying one can get beyond 35 years and a million-dollar fine...unless they plan on abusing the grammatical butchering of this summary and actually call for the death sentence.

Re:OK, 35 years, then...

[taxman_10m]

According to Wikipedia, Mitnick took a plea.

Re:OK, 35 years, then...

[stenvar]

Even in your adversarial system, there is neither a reason nor an expectation that the prosecutor should initially be making what were basically frivolous claims that go beyond all sane reason.

The reason the prosecutor can make those charges is because that's the law. I agree that the law is too strict, but you can't blame the prosecutor for that.

Furthermore, the prosecutor can't just go out and charge whoever he likes, he needs to convince a grand jury that the charges are reasonable. That means a majority of about 20 regular people have to agree that the person should get charged.

Sure enough a prosecutor will initially often enough be asking for more than is strictly warranted, but 35 years for using a script to download some files that were intentionally freely accessible within the uni network?

(1) Swartz was not a student at the university; he broke in and physically hacked into their network.

(2) The files were not "freely accessible"; they were available only under license, and Swartz repeatedly circumvented attempts to kick him off the network. Also, it was likely Swartz's intent to redistribute them.

(3) 35 years is the theoretical maximum when you total up all the charges with maximum penalties. He would likely have faced a few years in prison if found guilty of all charges, about the same as in many European countries.

Re:OK, 35 years, then...

[sosume]

I really don't understand. JSTOR is public repository, taxpayer funded. Schwartz is a tax payer. Where does the damage come from which justifies 35 years in jail?

Re:OK, 35 years, then...

[Jade_Wayfarer]

Well, let's not get into numbers far - even if Swartz would be found guilty only on one charge (and quite possibly more than one), he would still have to spend some time in prison with much more serious offenders. And, statistically speaking, his chances of acquittal were dim, to say the least. Well, OK, prisons in US are all happy gardens of bunnies-and-rainbows, and all inmates (and, more importantly, guards) are perfect gentlemen with bow ties and monocles. Staying in prison would help Swartz both physically and psychically... in some perfect fantasy world. But that's still not the point.

Quick quiz: when he gets out he is viewed by potential employers as a) a brilliant young man, who just made some wrong decisions in the past, but it's all forgiven and forgotten; or b) a felon, found guilty of several computer-related crimes? Guess which viewpoint would be prevalent? And what perspectives such future holds for him? Plus, even if he would spend not 35, but "only" 3-5 years in prison - how would he catch up with current technologies? Restore his skills and social connections? Do you want to be considered a friend of a known felon? So how many friends would he still have after this? So it's not the case of 50, 35 or even 5 years of prison - it's the case of maybe not ruined, but seriously maimed life anyway.

And "if the prosecutor overreaches, the case will collapse very quickly" - if that's true, why did 97% of accused in federal cases plead guilty in 2011? Not one case of "prosecutor overreach", right? Total transparency, responsibility and fairness all around, and every prosecutor is really afraid of his case collapsing, sure... in some perfect fantasy world.

Re:OK, 35 years, then...

[fredprado]

(3) 35 years is the theoretical maximum when you total up all the charges with maximum penalties. He would likely have faced a few years in prison if found guilty of all charges, about the same as in many European countries.

But he could get 35 years in prison, especially if the judge wanted to make an example of him, which happens more than you would believe. The fact that he could get this ridiculously draconian sentence, which is more than the maximum time permitted for anyone to serve for any crime in many countries, is enough to show how rotten US justice system is.

Furthermore the fact that the prosecutor can throw the whole book on him and charge him of everything he can think about does not mean she is forced to do so. That is the problem with your "adversarial legal system". Prosecutors go out of their way to intimidate and force people into deals, regardless of their culpability, and many many people take those deals forfeiting their right to defend themselves because of the chance of draconian penalties if they do not.

Re:OK, 35 years, then...

[stenvar]

he would still have to spend some time in prison with much more serious offenders

That's the law. Take it up with lawmakers. Don't blame the prosecutor when the public demands stupid laws (and some of these laws are stupid). In addition, Swartz knew the law and deliberately broke it.

Quick quiz: when he gets out he is viewed by potential employers as a) a brilliant young man, who just made some wrong decisions in the past, but it's all forgiven and forgotten; or b) a felon, found guilty of several computer-related crimes? Guess which viewpoint would be prevalent?

Doesn't seem to have hurt Robert Morris. He did roughly the same thing minus the copyright infringement, got convicted, and now is a professor at MIT.

Re:OK, 35 years, then...

[supercrisp]

You don't get it because you're completely wrong. JSTOR is a subscription service paid for by higher ed institutions for registered students. It's not paid for for the general public. Not saying that's right or wrong, just that your description of it as "public repository" couldn't be farther from the truth.

Re:OK, 35 years, then...

[supercrisp]

BTW, sorry for the "completely wrong" crankiness. I'm more respectful after my first cup of coffee. My rudeness was unwarranted.

Re:OK, 35 years, then...

[Anonymous Coward]

I wish I had mod points. +1 insightful.

Re:OK, 35 years, then...

[Anonymous Coward]

(I can't quite tell: are you simply not familiar with how the US legal system works, or are you deliberately misrepresenting it?)

mangu is pointing out the fact that it doesn't seem to be a very good system.

The system seems to be very good in the sense that it is very effective: The system successfully prevented any future crimes by Mr Schwartz. Surely preventing crime is the hallmark of a successfull justice system.

Re:OK, 35 years, then...

[Anonymous Coward]

Is 35 years in prison plus a $1 million fine the correct punishment for using a script to download documents?

Also the documents in question was journals, scientific knowledge that is usually built on top of existing public knowledge. Journals should be in public domain, attribution is the main currency of journals anyway...

I think Aaron meant to highlight that these documents should be in public domain, his legacy would be best served with releasing whole JSTOR as freely accessible, like Arxiv.

Re:OK, 35 years, then...

[stenvar]

And which legal system do you think works better and is more responsive to citizens?

Re:OK, 35 years, then...

[Anonymous Coward]

I believe you meant "opinion". I see no facts to support mangu's statement.

Re:OK, 35 years, then...

[Anonymous Coward]

You can kill Michael Jackson and get a lot less than that.

Re:OK, 35 years, then...

[Anonymous Coward]

The system would be pretty damn effective if we cut off the hands of those who steal... that doesn't justify being inhumane.

Re:OK, 35 years, then...

[fredprado]

If by "responsive to citizens" you mean a system that has more incarcerated people than China, Iran and North Korea all put together, certainly none other than US.

Re:OK, 35 years, then...

[Anonymous Coward]

You forgot the bit that comes before the trial, where the prosecutor makes terrifying threats in an effort to intimidate the suspect into a guilty plea in the hope of leniency, regardless of actual guilt or likely outcome if it had gone to trial.

How has this deplorable tactic of small-town demagogues become the entrenched policy of the Federal justice system?

I like to think it's the slippery slope. We give up our rights, not wholesale, but one little fraction at a time. There have always been some characterizations subject to excessive penalties. Anarchists in the 30s. Communists in the 50s. Drugs in the 70s. Terrorists. The characterizations grow more vague and the system more reactionary. Charge inflation used to be assault to aggravated-assault, or [crime] to [crime]-with-malice. The same basic action, just whether the intent was premeditated, heat-of-the-moment, or accidental. Now we seem to have laws with language so vague that the same action fits many categories, with the result that violating a web site's Terms and Conditions can result in Federal charges as serious as breaking into the IRS or SS computer system, copying the name, SSN, and DoB of everyone, and wiping the systems.

The next time some wacko on /. brings up the slippery slope, think about what 20 or 30 years of bad policy did to Adam Schwartz

Re:OK, 35 years, then...

[Anonymous Coward]

Nice incomplete factoid... Perhaps you're missing that China, Iran, and North Korea execute prisoners at record rates. China is the world leader by far in executions, and North Korea and Iran execute prisoners at rates 6-7 times higher than the US. Perhaps we incarcerate more than those countries because - unlike those countries - we don't just kill prisoners...

Re:OK, 35 years, then...

[Theaetetus]

Sorry, I remembered wrong, it wasn't 50 years, just 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.

Do you feel better now? Is 35 years in prison plus a $1 million fine the correct punishment for using a script to download documents?

Is disbarment the correct punishment for applying the law that Congress wrote and failing to use discretion to ignore offenses? Do you understand what "discretion" even means, if you insist that it be mandatory and punishment be applied if it's not used? Do you understand what "hypocrisy" means?

Re:OK, 35 years, then...

[BlueStrat]

I really don't understand. JSTOR is public repository, taxpayer funded. Schwartz is a tax payer. Where does the damage come from which justifies 35 years in jail?

It's not that the kid did that much harm, it's that this prosecutorial team saw a chance to put a "computer-crime" multi-decade "easy" conviction (read: student that can't afford a good legal defense) on their resumes for advancement of their careers.

Many, many US prosecutors and DAs don't consider for even a second the lives they destroy as they seek to advance their careers. For some it's fixation/obsession on their career goals that blinds them, for others, they are simply sociopaths who lack any capacity for empathy or sympathy for those they unjustly victimize, even enjoying the suffering of their victims.

They are much like the brutal, violent, abusive cops seen in so many YT videos, and like the cops, have a culture that views such abuses as normal and acts to shield/protect their own.

Strat

Re:OK, 35 years, then...

[abirdman]

he broke in and physically hacked into their network

No, sorry, there was no hacking. He plugged in a CAT5 cable because it was faster and the WiFi connection would reset periodically. Done. That's not hacking.

Re:OK, 35 years, then...

[Anonymous Coward]

Yup, I think you're right.

Re:OK, 35 years, then...

[Trepidity]

Furthermore, the prosecutor can't just go out and charge whoever he likes, he needs to convince a grand jury that the charges are reasonable. That means a majority of about 20 regular people have to agree that the person should get charged.

This used to be a major safeguard, but has been ineffective for some decades now. A prosecutor can get an indictment from a grand jury, if he wants one, in just about any case: of the circa 20,000 cases brought to a grand jury per year, fewer than 100 will result in a "no bill" (refusal to indict), for an indictment rate of around 99.5%.

Re:OK, 35 years, then...

[Trepidity]

Northern Europe has much less overcriminalization. Just look at how much smaller their prison populations are.

Re:OK, 35 years, then...

[Anonymous Coward]

At this point? North Korea

Re:OK, 35 years, then...

[Anonymous Coward]

Last I checked, he was a student. The only thing he violated was the EULA /TOS that said he couldn't use a bot to download. The contents of JSTOR is all in the public domain and tax payer funded.

Re:OK, 35 years, then...

[sesshomaru]

Trials are an extremely important part of the American legal system. The right to a fair trial by a jury of your peers is the bedrock of the American legal system. I'm not convinced the practice of plea bargaining, which is deliberately intended to short circuit this system, was ever a good idea.

Even if a plea bargain is a good idea in some cases, the way its used these days to create "Trial by Prosecutor" is absolutely ghastly. In other words, the prosecutor uses certain flaws of our legal system that are unrelated to Constitutional requirements (the costs, for example, that will bankrupt an ordinary person, and the fact that public defenders are often unqualified and routinely mishandle cases) to dispense with Trial by Jury altogether, even if the option still technically exists (violating the spirit of the law if not the letter of the law).

Plea bargains have been common for more than a century, but lately they have begun to put the trial system out of business in some courtrooms. By one count, fewer than one in 40 felony cases now make it to trial, according to data from nine states that have published such records since the 1970s, when the ratio was about one in 12. The decline has been even steeper in federal district courts. -- Sentencing Shift Gives New Leverage to Prosecutors

Besides this, we now have a similar situation in Civil Trials, where binding arbitration agreements are forced on parties as soon as they try to get involved in any commercial transaction.

What all this ends up being is an end run around the Constitution. If the Constitution had intended Trial by Jury to be rare, and most cases to be decided by a single appointed official, they would have set up the Constitution that way. In fact, many of the people involved in setting up the United States had bad memories of the Court of Star Chamber, in which no one was allowed to argue their cases and arbitrary rulings were the norm.

If one thing should come out of the Aaron Swartz case, and one thing only, it is this: The rules for civil disobedience in this country have changed. With juries out of the picture, stunts like what Swartz pulled at MIT are far more difficult ways to create legal precedent. Which is important because Civil Disobedience against unjust laws has a long history of moving change in this country when the legislative process was moving slowly or not at all (or in the wrong direction, as it is now).

Now, there were other periods in history where civil disobedience was extremely dangerous, which led to more extreme forms of civil disobedience than peaceful protests. The political movements in previous centuries knew what kind of justice awaited them in the courts, so they used the gun or the bomb to make their points, rather than sit ins or other forms of peaceful protest. Returning to those bad old days is honestly not something I'm looking forward to.

Re:OK, 35 years, then...

[fredprado]

That is a fallacy. Certainly US is not as bad in executing people as China, for example, but there is little difference between executing someone and sentencing him to 30 or more years in prison, and the amount of executed people in these regimens certainly does not make for the difference in incarceration, actually the number of executions in all those countries is several orders of magnitude lower than the number of incarcerated people in US. Even if you add executions to incarcerations in all those countries and compare to US incarcerations, US is still much ahead.

Re:OK, 35 years, then...

[Anynomous Coward]

That's the law. Take it up with lawmakers. Don't blame the prosecutor...

After all, the prosecutor was only doing her job and Sie hatte es nicht gewusst.

Re:OK, 35 years, then...

[Vidar Leathershod]

I think you are confusing the prosecution with the defense. It is not the prosecution's job to "throw what he can get away with at the defendant". The prosecution's interest should be to prosecute someone who they believe has committed a crime worthy of prosecution. It is certainly not the job of the jury to determine overreach. The judge is the arbiter of the law, and the jury is merely the arbiter of the fact.

The responsibility of defense is closer to your notion, as famously stated by Justice Byron White. But he spells out the responsibility of the prosecution, as well as other law enforcement, to get it right, even during the trial itself:

"“Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty.

The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth.

Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.”

Re:OK, 35 years, then...

[sycodon]

It does suck giant, nasty sweaty balls.

But not as much as all the other systems.

Re:OK, 35 years, then...

[Anynomous Coward]

Is disbarment the correct punishment for applying the law that Congress wrote and failing to use discretion to ignore offenses?

Yes. With great power come great responsabilities, and the obligation to use the powers wisely. The prosecutor most obviously did not.

Re:OK, 35 years, then...

[Ash Vince]

And, statistically speaking, his chances of acquittal were dim, to say the least.

Is that a problem with the prosecutor or a problem with the jury who should actually be doing the acquitting?

Re:OK, 35 years, then...

[Clockwurk]

Or, had he accepted a plea bargin, 6 months in prison. But don't let the facts get in the way of your narrative.

Re:OK, 35 years, then...

[dyingtolive]

Not anymore.

Re:OK, 35 years, then...

[Hatta]

The United States has imprisoned more of its population than any other country in the world. If that's your goal, than the US justice system works great. If you want a free society, the US justice system is reprehensible.

Re:OK, 35 years, then...

[blueg3]

But he could get 35 years in prison, especially if the judge wanted to make an example of him, which happens more than you would believe.

Not really. He'd then have excellent grounds for appeal, since the judge would have been straying very far from the federal sentencing guidelines.

When media reports a set of charges, they sum together the number of charges and sum together the maximum sentences for all of the charges, leading to something like "12 charges with a maximum of 35 years in prison". But when sentencing, according to the guidelines, you eliminate redundant charges that are for the same criminal act and use the one with the highest penalty. So it's rarely possible to ever get the sentence reported by the media.

In Swartz's case, he could have realistically been sentenced to 7 years in jail.

That seems unlikely, though. The two plea bargains offered were for 4 months jail or the judge's discretion, up to a maximum of 6 months. That's a very generous plea if they thought they had any chance of getting the maximum sentence in trial.

Re:OK, 35 years, then...

[Hatta]

he would still have to spend some time in prison with much more serious offenders

That's the law.

If you're going to fall back on the "its the law", you have to enforce the law all the time. But our justice system has discretion built into it. That's why e.g. John Corzine is still a free man. But why does Corzine benefit from that discretion and Swartz does not? Wealth and power, obviously. That's the problem here. Justice isn't blind.

Re:OK, 35 years, then...

[stenvar]

The violent crime rate in the UK is twice what it is in the US, and generally that is attributed to the lower incarceration rate:

http://www.dailymail.co.uk/news/article-25671/Violent-crime-worse-Britain-US.html

Is that a good tradeoff? I don't think so.

Re:OK, 35 years, then...

[Anonymous Coward]

Yez, zee Zermans alzo only did zeir zob!

Re:OK, 35 years, then...

[stenvar]

No, sorry, there was no hacking. He plugged in a CAT5 cable because it was faster and the WiFi connection would reset periodically. Done. That's not hacking.

The WiFi connection wouldn't "reset periodically". MIT administrators were banning his MAC address, and he kept changing it. Then he physically trespassed on MIT property, went into a wiring closet, and plugged into the MIT network. That is hacking.

Re:OK, 35 years, then...

[Anonymous Coward]

Staying in prison would help Swartz both physically and psychically

Hollywood has given me a mental image of buff inmates pumping iron all day, but somehow I just cannot seem to visualize them reading palms and Tarot cards for each other. ...oh, psych-OLOGI-cally. Aaah.

Re:OK, 35 years, then...

[Trepidity]

And what about Germany and France, which have both lower incarceration rates and lower violent crime rates?

And not just slightly lower incarceration rates: about 85% lower.

Re:OK, 35 years, then...

[stenvar]

This used to be a major safeguard, but has been ineffective for some decades now. A prosecutor can get an indictment from a grand jury, if he wants one, in just about any case: of the circa 20,000 cases brought to a grand jury per year, fewer than 100 will result in a "no bill" (refusal to indict), for an indictment rate of around 99.5%.

And how does the prosecutor do that according to you? Mind control? Hypnosis? Death threats? Of course not. These are two dozen regular people making a careful decision.

What that statistic actually shows is that overcharging is extremely rare, as judged by regular Americans.

Re:OK, 35 years, then...

[Chris Mattern]

Furthermore, the prosecutor can't just go out and charge whoever he likes, he needs to convince a grand jury that the charges are reasonable. That means a majority of about 20 regular people have to agree that the person should get charged.

Over nine times out of ten,the grand jury will indict whomever the prosecutor tells them to, regardless of the circumstances. Google "ham sandwich prosectuor" and find out why the research paper referenced by the summary is titled "Ham Sandwich Nation".

Re:OK, 35 years, then...

[Hatta]

That woman needs a healthy dose of "welcome to reality".

If you haven't noticed, this is reality. The reality is she has the power to do this and get away with it. The reality is that prosecutors are beyond reproach in this system and there's nothing that peons like you or I can do about it. This is the world we actually live in. This is what it means to live in a police state.

Re:OK, 35 years, then...

[blueg3]

Not a student at MIT. He's a fellow at Harvard. They have a JSTOR subscription, too, but he chose to use MIT's network.

The contents of JSTOR are not in the public domain. You may think that they should be, but that's not the same thing.

Re:OK, 35 years, then...

[Kim0]

The reason the prosecutor can make those charges is because that's the law. I agree that the law is too strict, but you can't blame the prosecutor for that.

Oh yes, you can, as was established in the Nuremberg trials after World War 2:

Following orders, such as the law, even when threatened with death for disobedience, is not an excuse.

So the prosecutor is guilty in the same way that many german soldiers were.

Or in other words: Damned if you do, damned if you do not.

Re:OK, 35 years, then...

[blueg3]

Don't forget that JSTOR is also not the one that makes all of the rules, here. They don't own the copyright to the works they distribute. They had to get licenses from the publishers.

Re:OK, 35 years, then...

[Anonymous Coward]

(1) Swartz was not a student at the university; he broke in and physically hacked into their network.

Wrong, he didn't break in, the campus is open and the network is open. You can walk into campus and it is full of open buildings and those buildings have water fountains everywhere. If you go into one and drink from a water fountain, you have not "broken in" or "physically hacked" their building or water fountain. They also have network ports everywhere with no access controls. You can drink from those too, so to speak. There are obviously ways you can abuse either the water fountain or the network, and Swartz perhaps did that, but no break-in was involved.

(2) The files were not "freely accessible"; they were available only under license,

They were freely accessible everywhere on campus because MIT had obtained a license for exactly that. Like if you check into a motel and there is cable TV in all the rooms, you are not a cable pirate if you watch some shows. There is freely accessible cable TV in the motel because the motel has a subscription to the cable station.

(3) 35 years is the theoretical maximum when you total up all the charges with maximum penalties. He would likely have faced a few years in prison if found guilty of all charges, about the same as in many European countries.

He "faced" whatever the maximum was for what he was charged with. The likeliest outcome is something different again. His defense team seemed to expect complete acquittal. But there are no guarantees of anything.

Re:OK, 35 years, then...

[stenvar]

And what about Germany and France, which have both lower incarceration rates and lower violent crime rates?

Citation?

Re:OK, 35 years, then...

[Anonymous Coward]

Swartz was wealthy and part of "the 1%". He was also extremely well connected, counting Harvard lawyers among his friends, and he was defended by a top defense lawyer.

Really, you're grasping at straws here.

Re:OK, 35 years, then...

[whoop]

Show me a case where someone was indeed sentenced to 35 years + $1 million. It's the theoretical maximum that CAN be applied. The entire judicial process is a negotiation. Prosecutors start at the max, defense lawyers start at the minimum, and they try to come to some middle ground.

The only way he'd get the maximum is if he defied the court's orders, refused to cooperate in any way, spit on everyone at the courthouse, went on the run, and more.

Re:OK, 35 years, then...

[smellotron]

And which legal system do you think works better and is more responsive to citizens?

Well, since the legal system isn't picked off of a menu, how about we just sound off some changes which would "work better and [be] more responsive to citizens"?

• Some mechanism should exist which allows laws to be removed from the books without requiring them to be tested in court. For example, an organization like the EFF or ACLU should be able to raise the unconstitutionality of a law without waiting for some poor schmuck to be putting up a defense to it. This would allow for bad laws to be repealed more efficiently, quickly, and with less risk.
• Laws which can be demonstrated to be selectively enforced, or which have had no enforcement within a pre-ordained time frame, should be pulled off of the books. Such laws are open to abuse because they can be used as political weapons in a courtroom, even though the selective enforcement implies that they are not valued by society at large.

Re:OK, 35 years, then...

[SuricouRaven]

Except for a slight legal technicality. The TOS is what gives the user (him) permission to access a computer system. Break the TOS, and that access is immediately recinded. Any further use of the service is thus unauthorised access to a computer system, and legally no different from hacking into a private server and downloading confidential documents. That's why the prosecutors were able to threaten a 35-year jail sentence and huge fine.

Re:OK, 35 years, then...

[Anonymous Coward]

But not as much as all the other systems.

Care to name them? That's a honest question.
Yes I know there is common law and the french law thing, but that's pretty much the same thing in execution.
I know only of one substantial difference with or without jury. And one judicial system usually uses both of them.

Have we even tried other things?
For example;
a jury, a judge and two judges assistants, no lawyers.
The first judge assistant tries to find out the truth by following the defendants version and evidence, the second judge assistant tries to find out the truth following the prosecuting party's version and evidence. The difference between the judge assistants and lawyers being that the assistants are both paid for by government and they try to work together to find the truth, not hide,reframe,distort it. (Judge/jury can later decide to have court costs payed for by either party)

This is just an idea, but did we try something else than what we have now? (at least after the age of Enlightenment)

Re:OK, 35 years, then...

[smellotron]

Or, had he accepted a plea bargin, 6 months in prison.

If what you say is true, then the prosecution was asking for a 70-fold increase in prison time in exchange for the constitutional luxury of a trial by jury. This is a solid indication that 35 years should have qualified as "cruel or unusual". IOW, your facts seem to support the popular narrative as well: Schwartz's blood is on the hands of the prosecutor.

Re:OK, 35 years, then...

[RobertLTux]

lets see he

1 broke into the closet where the port was

2 changed his MAC a couple times (to get past a ban)

3 most likely also did a few other things (see court docs for details)

i would say he did a bit of hacking

Re:OK, 35 years, then...

[stenvar]

Some mechanism should exist which allows laws to be removed from the books without requiring them to be tested in court.

That exists: it's called Congress and the state legislatures.

Laws which can be demonstrated to be selectively enforced, or which have had no enforcement within a pre-ordained time frame, should be pulled off of the books.

Sounds good to me. Get it through the legislature, and I vote for it.

Until you manage to do that, be happy that the US has safeguards like grand juries, jury nullification, and elected judges and prosecutors. Of course, that rubs various intellectuals the wrong way, since the people frequently want something different from the intellectual elite.

Re:OK, 35 years, then...

[smellotron]

The violent crime rate in the UK is twice what it is in the US

I don't have a good citation, but when one of the recent "GUNS!" articles came around it was mentioned that UK has lower standards for counting violent crime than the US. Looking at The Gospel, the only clear difference I see is that the UK counts "all sexual offences" as violent crimes, but the US only counts "rape". And the US reports are filtered by victim age, but I don't know about the UK. And the US has two separate statistics, both self-reported (one to the police, one to a survey). So, I'm not sure how much I would trust a comparison of the raw violent crime rates, as each nation has its own incentive to "cook" those statistics. It does look like violent crime is going down in both the US and the UK, which means that the lower incarceration rate is not necessarily a bad trade-off.

Re:OK, 35 years, then...

[amiga3D]

What bothers me is he likely could have gotten less time for killing someone.

Re:OK, 35 years, then...

[bfandreas]

Don't quote the daily fail. A reputable news source it is not.

Re:OK, 35 years, then...

[Anonymous Coward]

stupid is as stupid does

Re:OK, 35 years, then...

[Anonymous Coward]

That's not hacking, it's trespassing.

Re:OK, 35 years, then...

[jedidiah]

He was looking at a big pile of bogus escalation. In the vernacular we call this "trumped up charges". If it were any other country, these "patriots" would be crying foul and calling it tyranny rather than defending it.

Single set of facts, first offense, but blown way out of proportion because our system is corrupt and far too many cheer at this rather than objecting to it.

It's like Microsoft. I wish I didn't have to live with the consequences others who are short sighted idiots with no clue. Ideally, these people would be the only ones to suffer from their own poor choices.

Re:OK, 35 years, then...

[sacrilicious]

Is disbarment the correct punishment for applying the law that Congress wrote and failing to use discretion to ignore offenses?

Yes. Your move.

Re:OK, 35 years, then...

[fredprado]

To do that, to manage to pass changes like these, one needs a lot of people with him, and the only way to achieve that, if that is achievable at all, is by talking about it to people and showing how the current situation is absurd and how these changes are necessary, as we are doing now.

Re:OK, 35 years, then...

[fredprado]

Easy:

http://en.wikipedia.org/wiki/List_of_countries_by_incarceration_rate

http://en.wikipedia.org/wiki/List_of_countries_by_intentional_homicide_rate

Re:OK, 35 years, then...

[Anonymous Coward]

"Is disbarment the correct punishment for applying the law that Congress wrote and failing to use discretion to ignore offenses?"

I haven't seen a really compelling argument yet that that's what she was really doing. Using the CFAA to enforce a website's TOS is a pretty tenuous legal leap, at best (the only other case of this I know of, US V. Lori Drew, found this notion to be unconstitutional), and is not something that any US citizen should feel comfortable with, regardless of their feelings about Aaron Swartz.

Re:OK, 35 years, then...

[meta-monkey]

I do not think you know what "hacking" means......

Re:OK, 35 years, then...

[Jeremy Erwin]

Nothing in the Daily Mail should be treated as a general statement of anything. They're special

Re:OK, 35 years, then...

[JoeSchmoe999]

Just mention Jury Nullification in a courtroom and see what happens. We'll be talking about you next.

Re:OK, 35 years, then...

[Anonymous Coward]

To avoid bias, the citation should ideally come from the daily mail. Good Luck.

Re:OK, 35 years, then...

[Obispus]

Doesn't seem to have hurt Robert Morris. He did roughly the same thing minus the copyright infringement, got convicted, and now is a professor at MIT.

Quite different. Morris's father (Robert Morris Sr.) was Director of the NSA, no less, at the time of the worm infestation. That ensured Morris Jr. got special treatment.

Re:OK, 35 years, then...

[Jeremy Erwin]

Apparently, MIT has decided to cut off guest access to jstor

Re:OK, 35 years, then...

[Anonymous Coward]

There's been exactly one prosecuted case of this logic that I am aware of: US V. Lori Drew. The judge threw it out, because such logic would allow services, through their terms of service, to arbitrarily invent new criminal laws by proxy - a privilege that is constitutionally reserved to congress.

Sign up for Facebook with an alias? Felony. Cheat in an online game? Felony.

TOS violations are a civil matter. Regardless of what you think of Swartz, nobody should be comfortable with the idea of allowing websites to arbitrarily define criminal behavior.

Re:OK, 35 years, then...

[Mr. Slippery]

The violent crime rate in the UK is twice what it is in the US

Correct.

and generally that is attributed to the lower incarceration rate:

If low incarceration rates were a strong cause of violent crime, then Japan, Finland, Norway, Sweden, Switzerland, and Germany would be much more violent than the UK.

So the violent crime wave may be attributed to the lower incarceration rate by right-wing politicians, but not by anyone with a clue.

Re:OK, 35 years, then...

[Theaetetus]

Is disbarment the correct punishment for applying the law that Congress wrote and failing to use discretion to ignore offenses?

Yes. Your move.

You don't care about justice, the fundamental concept that punishment should be related to one's own actions rather than the result on others, or the constitutional requirement of due process, and feel that your desire for retribution should trump any such considerations. Your move. Specifically, to a different country that's more in line with such beliefs, like North Korea.

Re:OK, 35 years, then...

[stenvar]

Intentional homicide rate isn't the same as violent crime. Intentional homicide is lower in the UK than in the US, but the violent crime rate is twice what it is in the US.

Again, where is the data supporting your claim that Germany and France have lower violent crime?

Re:OK, 35 years, then...

[stenvar]

Well, the Swartz case is a bad case to make that argument. I, for one, would like trespassing and plugging into someone else's network without authorization to remain illegal.

Re:OK, 35 years, then...

[Anonymous Coward]

"Faces up to..."

I know it doesn't sound as punchy and make him seem more martyr like than saying he was absolutely going to get 35 years, 3 years and a million bucks - but I guess it dosen't much matter does it?

Re:OK, 35 years, then...

[stenvar]

Funny, other people make the opposite argument, namely that the UK undercounts and the US overcounts. Rape hardly is a good example; viz statutory rape.

In any case, crime in general is much higher in the UK, France, and Germany than in the US.

http://www.nationmaster.com/graph/cri_tot_cri-crime-total-crimes

The discussion seems to have moved from "the US legal system sucks and its high incarceration rates are awful" to "maybe the lower incarceration rate is not necessary a bad tradeoff"...

Re:OK, 35 years, then...

[Anonymous Coward]

There was no trespass. The closet was unlocked, without so much as a warning sign or a "Keep out" notice. The network was available for him to use, and that doens't mean only the WiFi. This is the way MIT does things. They keep everything open, because that's the way they like[d?] to run things.

Re:OK, 35 years, then...

[sacrilicious]

Oops, I misread your original post. I thought you asked if "disembowelment" was a fitting punishment, whereas I see you actually asked about "disbarment". I don't really have an opinion about the disbarment.

Re:OK, 35 years, then...

[fredprado]

All depends on how you define "violent crime". Where did you get this idea that UK "violent crime" rate is bigger than in US on the first place? For one crimes with firearms are much more frequent in US, which should be obvious considering the higher accessibility to guns.

If you claim that UK, France and German have a higher violent crime rate than US, even though the homicide rate in US is ridiculously higher, the onus of the proof and of the definition of what is a violent crime is yours.

Re:OK, 35 years, then...

[Belial6]

Your description is even more corrupt than the 35 years + $1 million.

Re:OK, 35 years, then...

[priceslasher]

Intimidation, browbeating? I mean, if there is anything to the Milgram experiment (and I believe there is), then many people will deliver what they believe are dangerous and painful electrical stimulation to somebody so long as someone in a position of authority behaves as if it is standard procedure. If those rates are truly 99.5% in 20,000, then maybe it's just because everyone is doing a great job - or maybe jurors are vulnerable to being herded along by (certainly knowledgable and experienced counsel) some very intimidating and powerful authorities. I doubt it is simply a matter of "overcharging is extremely rare, as judged by regular Americans".

Re:OK, 35 years, then...

[stenvar]

The facts are the facts, it doesn't matter who reports them.

If you have different statistics, please share them and your source.

Re:OK, 35 years, then...

[steelfood]

It's because very few people want to serve on a jury, much less a grand jury, and of those who do, most of them watch too much TV and read too little.

This system begins and ends with "The People." If "The People" are a bunch of raving lunatics or drooling idiots, the core of the system has rotted out and the system is no longer functional.

Re:OK, 35 years, then...

[Belial6]

The reason the prosecutor can make those charges is because that's the law. I agree that the law is too strict, but you can't blame the prosecutor for that.

That is a cop out. The law isn't wrong because the prosecutor has prosecutorial discretion. The prosecutor isn't wrong because it is within the law.

Re:OK, 35 years, then...

[Anonymous Coward]

Nice incomplete factoid... Perhaps you're missing that China, Iran, and North Korea execute prisoners at record rates. China is the world leader by far in executions, and North Korea and Iran execute prisoners at rates 6-7 times higher than the US. Perhaps we incarcerate more than those countries because - unlike those countries - we don't just kill prisoners...

The USA is #5, behind China, Iran, North Korea, and Yemen! No, wait, that was 2010. In 2011, the USA is #5, behind China, Iran, Saudi Arabia, and Iraq! North Korea and Yemen fall back, but Saudi Arabia and Iraq surge! And in fifth place, bringing up the rear... Beetle Bomb, no, I mean, USA!

Two mutually exclusive thoughts arise:

1) Oh well, so long as we're better than China and Iran, no need to worry. Or,
2) C'mon USA! You can do better! You're not going to let those lovers of democracy beat you, are you?

Re:OK, 35 years, then...

[steelfood]

The prosecutors have the ability to and do exercise discretion when charging individuals. It's just that they exercise discretion when it comes to themselves, their friends and families, and exercise no discretion (i.e. throw the book at) when it comes to people they want to use to further their own careers.

Don't make it appear like the prosecutors don't have a choice. Everybody has a choice. And decent, humane individuals will choose good, ethical, and moral in any clear-cut situation. Unfortunately, there aren't so many decent, humane individuals, and these prosecutors in question are demonstrably not among them.

Re:OK, 35 years, then...

[Anonymous Coward]

Dafuq has this got to do with the idiocy of the actual sentence? The judge (not the jury, who only reach the verdict) decides on the punishment in a criminal case, and how is prosecutor's claim relevant to the extent that the sentence is a bargain between 0 and whatever prossecution asked for.

People get A LOT less for murder or rape.

Re:OK, 35 years, then...

[Clockwurk]

Nigga please.

35 years was the maximum sentence. Given that Swartz was white, and not a repeat offender, the real maximum he was facing was far less.

1. Prosecutors offer a 6 month plea deal instead of the maximum sentence of 35 years. If they felt they had an iron-clad case (where they could actually get a sentence of 35 years), they aren't going to be that generous.

2. Swartz and his attorney rejected the plea deal. They either felt that they could win the case, or that even on the event that they lost the case, it wasn't going to be a 35 year sentence (otherwise, why risk it vs 6 months).

Swartz blood is on his own hands.

Re:OK, 35 years, then...

[Anonymous Coward]

"...a system that has more incarcerated people than China, Iran and North Korea all put together"

Of good grief, in those countries they just take you outside and shoot you. You are a moron, why don't you go then to North Korea where you say things are so great and stop complaining about us. Idiot.

Re:OK, 35 years, then...

[Anonymous Coward]

"Laws which can be demonstrated to be selectively enforced"

Oh really? Is that your call? Then I immediately call for Washington D.C. gun control laws to all be pulled off the books until David Gregory is behind bars.

Is that what you are trying to argue for, genius?

Re:OK, 35 years, then...

[stenvar]

No, the burden of proof is on you. You made the claim:

And what about Germany and France, which have both lower incarceration rates and lower violent crime rates?

It's clear you're talking out of your ass. You have no evidence to back up your statement.

Re:OK, 35 years, then...

[stenvar]

If low incarceration rates were a strong cause of violent crime, then Japan, Finland, Norway, Sweden, Switzerland, and Germany would be much more violent than the UK.

Oh, please, there are hundreds of variables that influence this. People can reasonably conclude from the data that lower violent crime rates in the US than in the UK are due to higher incarceration rates without seeing a correlation across countries.

Re:OK, 35 years, then...

[Anonymous Coward]

I know you're trolling, but by that token. The most efficient way for the justice system would be mass murder, just in case.

Re:OK, 35 years, then...

[stenvar]

Do you have any evidence that the grand jury is being unfairly manipulated? No. You just don't like the conclusion they reached, so you just assert that they have been manipulated without evidence. It's the same with voting: when people don't vote the way progressives want them to, they assume that they must have been manipulated somehow.

Re:OK, 35 years, then...

[Rich0]

Don't forget being unemployable and losing the right to vote. Gotta love the way we rehabilitate prisoners...

Re:OK, 35 years, then...

[fredprado]

Firstly it was not me who made that claim (even though it is indeed a correct claim). Go back and check.

Secondly you also made a claim, a claim that despite the homicide rate of US being much much higher, somehow, magically this thing you call "violent crime rate", whatever that may be is twice higher in UK, which is obviously false.

Even more, apparently you aren't even able to objectively define what is a "violent crime".

Re:OK, 35 years, then...

[TheSync]

The judge is the arbiter of the law, and the jury is merely the arbiter of the fact.

You may want to read up on Jury Nullification. Though controversial, New Hampshire recently passed a law explicitly allowing defense attorneys to inform juries about Jury Nullification.

Re:OK, 35 years, then...

[fahrbot-bot]

Even in your adversarial system, there is neither a reason nor an expectation that the prosecutor should initially be making what were basically frivolous claims that go beyond all sane reason.

The reason the prosecutor can make those charges is because that's the law. I agree that the law is too strict, but you can't blame the prosecutor for that.

As someone who was at one time in serious trouble with the law, let me state that the prosecutor is only interested in a conviction, not justice - results, not right or wrong. The bigger the conviction/results, the better.

Re:OK, 35 years, then...

[fahrbot-bot]

Then he physically trespassed on MIT property, went into a wiring closet, and plugged into the MIT network. That is hacking.

That's *not* hacking, that's trespassing and/or breaking and entering.

Re:OK, 35 years, then...

[fredprado]

Oh and just because I am a kind soul I will show you why you are wrong:

http://rayrayallday.com/2013/01/11/the-difference-between-us-uk-violent-crime-rates-depends-on-definition-of-violent-crime/

Re:OK, 35 years, then...

[Hatta]

Grand juries are a rubber stamp, not a safeguard. Federal grand jury indictment rates exceed 99%.

Jury nullification isn't a real safeguard either. If you mention it, you get pulled from the jury, and probably held in contempt of court.

Neither are elected judges. The only people who really know whether a judge is unfair are those who stand before the judge. That's always a tiny minority of the electorate, with no ability to affect the outcome of an election.

So in reality, the US justice system has very few safeguards against malicious prosecution. And we see the results of that in our mass incarceration society. There's nothing to "be happy" about with respect to our justice system. It is outright terrible through and through.

Re:OK, 35 years, then...

[Jade_Wayfarer]

If you encounter a lone hungry wandering bear in the woods, and you don't have any weapons on you - would you consider his claws or his teeth a bigger problem? But still, even if all system is borked up, the prosecutor plays much more active role in it - he has much more motivation to pursuit his goal, conviction of the accused. Jury is only determined to find the truth... by deciding guilt of the defendant on every charge that prosecutor put on him. And again, statistics shows us that it is almost impossible for jury to find defendant not guilty on all charges.

And even if defendant is acquitted, he is the lucky man here, like a winner of a lottery, or a miracle survivor... at least morally. Financially he could be almost broke - good lawyers cost much, everyone knows it. Prosecutor, on the other hand, loses almost nothing - he can always find another one "tough criminal" and terrorize... sorry... convince him to plead guilty, or throw a book at him before the jury again and again. So yes, there is a problem with the prosecutor - he is an active element in this scheme, while jury has much more passive role.

Re:OK, 35 years, then...

[Jade_Wayfarer]

Sorry - this seems to be one of the typical mistakes of non-native English speakers. In my first language "psychical" is much closer in meaning to "psychological", rather than "future-telling". Still, a scene of Tarot reading by one brutal convict to another could look good in some Hollywood blockbuster, couldn't it?

Re:OK, 35 years, then...

[stenvar]

Unfortunately, that blog post is merely pointing out some differences, but then goes on to make an equally weak argument for the opposite case.

Here is a reference from the University of Chicago suggesting that increased imprisonment does reduce crime rates:

http://crimelab.uchicago.edu/page/incarceration

(Steven Levitt: The Effect of Prison Population Size on Crime Rates, Quart. J. Econ., 1996)

"While calculations of the cost of crime are inherently uncertain, it appears that the social benefits associated with crime reduction equal or exceed the social costs of incarceration for the marginal prisoner."

Re:OK, 35 years, then...

[stenvar]

Oh, stop mincing words. Whatever you call it (I just used the term "hacking" because others have), it is certainly sufficient to be indicted on charges that potentially carry a lengthy prison sentence. That's what the prosecutor did, and it was up to a judge and jury to make the decision.

Re:OK, 35 years, then...

[stenvar]

Ah, well, everything is apparently "obvious" to you. We should run our entire country based on what a few nerds like you consider "obvious"! And because you are so smart, what is "obvious" to you must be scientifically proven! It would be folly to object to your "obvious" conclusions!

Re:OK, 35 years, then...

[fredprado]

Nope. The blog clearly compares each crime defined in US as Violent Crime to those in UK and shows that if you use the same definition in both countries US will ALWAYS have a higher rate. Check it again. Read it this time.

And regardless of what a single study seems to suggest, reality certainly says otherwise. US crime rates are among the highest in the world, higher than many underdeveloped countries, mind you, and much higher than any country in the European Union, all of which have a much lower part of its population incarcerated.

Re:OK, 35 years, then...

[Anonymous Coward]

http://en.wikipedia.org/wiki/Adversarial_system

Re:OK, 35 years, then...

[Anonymous Coward]

Furthermore, the prosecutor can't just go out and charge whoever he likes, he needs to convince a grand jury that the charges are reasonable. That means a majority of about 20 regular people have to agree that the person should get charged.

Grand juries are NOT _required_ in order to charge someone with a crime. They *can be* convened when a prosecutor _believes_ a crime may have been committed but needs additional testimony and input to determine whether that is the case.

In this case, no grand jury was involved and didn't need to be. Imagine if every crime required a grand jury?? Gridlock in the courts worse than it already is.

Re:OK, 35 years, then...

[Anonymous Coward]

No, it's a private for profit repository of publicly funded knowledge.

Re:OK, 35 years, then...

[Anonymous Coward]

Morris didn't break any existing laws, in fact the knee jerk he caused is the reason why the penalty for "computer" crime is so large.

Re:OK, 35 years, then...

[Anonymous Coward]

Oops. The Fifth Amendment does require a grand jury indictment for Federal criminal charges.

However, the prosecutor controls what evidence is presented and who testifies. It is widely believed grand juries merely rubber stamp prosecutors evidence rather than actively protect against inappropriate criminal charges.

Re:OK, 35 years, then...

[bcmm]

Better source, please. The Daily Mail is aimed directly at people who want harsher treatmeant for other people in general, and regularly lies to please its audience.

Re:OK, 35 years, then...

[bcmm]

(To make my point slightly clearer, the Daily Mail is well-known in the UK for regular articles comparing prison to a luxury holiday and demanding harsher sentances for everything.)

Re:OK, 35 years, then...

[AF_Cheddar_Head]

Or, the electorate voted for Obama but we Tea Party types know that the "Silent Majority" wants something else. See two can play that game.

Re:OK, 35 years, then...

[Anonymous Coward]

Mostly what you prove is a disturbing lack of education and knowledge about the world.

Re:OK, 35 years, then...

[stenvar]

Trepidity claimed that the Northern European justice system was "better because the prison populations were smaller". He needs to provide the evidence to support his statement.

Re:OK, 35 years, then...

[DeadCatX2]

I'm not sure what your point is. The date on that post is four days after Mr. Swartz was arrested, so it was not in effect when he was downloading JSTOR's articles en-masse.

Re:OK, 35 years, then...

[DeadCatX2]

We have an adversarial legal system

You mean the prosecutor gets to decide what sentence they think your crime deserves, and then offers you a chance to plead guilty for that sentence...and if you choose to exercise your Constitutional right to a jury trial, the prosecutor then punishes you for exercising this right by seeking a sentence that is harsher than they think your crime deserves.

Re:OK, 35 years, then...

[Anonymous Coward]

Any time you're citing the Daily Mail, your case is weak.

In this case, the issue is with what the statistics count. In the UK, 'violent crime' includes, for instance, shoving or slapping someone. In the US, events like that don't even get recorded.

Re:OK, 35 years, then...

[DeadCatX2]

Don't blame the prosecutor when the public demands stupid laws

Have you heard of the Responsible Corporate Officer doctrine? In a nutshell, if a company does something bad, their executives can be held criminally accountable, even if they didn't know what was going on, because it's their duty to know.

And yet when Forest Laboratories was marketing drugs to children when they were approved only for adults, what did Carmen Ortiz do? She could have held the executives responsible for the criminal actions of the company...and yet she chose not to. http://www.nytimes.com/2010/09/16/health/16drug.html?_r=0

I blame the prosecutor. The law says she could hold the executives accountable, and yet she used her discretion with Forest Laboratories to avoid sentencing anyone to any time in prison. Why not with Aaron Swartz?

Re:OK, 35 years, then...

[Jeremy Erwin]

I am no longer associated with any institution, but I occasionally use academic research libraries--reading journals, books, inside the library. Many such libraries subscribe to JSTOR in lieu of maintaining subscriptions to hundreds of journals. MIT's decision on routing JSTOR through a special portal("Your current MIT status will be verified as you are passed through to the JSTOR site.") makes the library a lot less useful to outside visitors. But yes, I should have checked the date; those restrictions may not be in force at present.

Re:OK, 35 years, then...

[smellotron]

Prosecutors offer a 6 month plea deal instead of the maximum sentence of 35 years.

Yeah... and you don't see that as problematic at all? When I see "6 month plea bargain... or up to 35 years in prison" I see the subtext of coercion by the entire judicial system. Because, no matter how slim the chance, it's still possible that he'll get nailed in the courtroom and end up with the maximum sentence. If 6 months was the reasonable number offered for "haggling", then nearly two orders of magnitude more is surely unreasonable.

Re:OK, 35 years, then...

[stenvar]

I didn't make that kind of argument, but "priceslasher" did.

Re:OK, 35 years, then...

[stenvar]

I blame the prosecutor. The law says she could hold the executives accountable, and yet she used her discretion with Forest Laboratories to avoid sentencing anyone to any time in prison. Why not with Aaron Swartz?

Because there was no reason to use her discretion. The prosecutor didn't charge him to persecute him, she charged him because she actually had a good chance to get a conviction carrying a lengthy jail sentence. That's why he was suicidal, and that's why you are angry in the first place.

Whether other prosecutors made mistakes in their cases really is not relevant to this case.

Re:OK, 35 years, then...

[smellotron]

Congress and the state legislatures.

Sorry, upon re-reading my own statement I realize that I failed to include a substantial assumption. Let me amend:

Some mechanism should exist which allows laws to be removed from the books without requiring them to be tested in court or an about-face from the legislature.

It is my opinion that the legislative process is currently skewed towards adding more laws than are removed. I think this is a natural problem: there simply isn't any incentive to remove laws, because the legislative branch wants to look "tough on crime" and because they know that out-dated laws (e.g. state sodomy laws) can simply be ignored by the executive branch. To counterbalance this, I think it should be easier for laws to be removed from the books on the judicial side. The existing powers in the judicial side are presently unpopular with TPTB: Jury nullification has the potential to land you in contempt of court. Grand juries seem to be rubber-stamps now for whatever reason. Elected judges in Illinois have a very low rate of recall: in Cook County, even skipping out on work to sunbathe won't get you kicked out. Cook County also just re-elected—by a landslide—a prosecutor who has a reputation for her "Law & Order" approach to crime-fighting, violent or not.

Ugh. The problem is that on the judicial side, all of the powers that you listed lie entirely with the masses, and so the only way to change is through massive advertising campaigns. Civil-rights organizations can hire lawyers to work within the court system, but they can't make people care.

Re:OK, 35 years, then...

[stenvar]

The prosecutor says to the judge and jury "here is the range of options you have to convict this guy; I'm going to try to make a good argument for each of them; you decide which ones stick". They are acting as a salesman for various options, and it's the judge and jury's decision which of those options they "buy".

You seem to want an inquisitorial justice system, like Continental Europe has. There, everybody cooperates to find a "reasonable" outcome before the trial. It's not clear that that system produces better outcomes, and it is subject to potentially much worse political abuses like show trials.

Re:OK, 35 years, then...

[stenvar]

It is my opinion that the legislative process is currently skewed towards adding more laws than are removed

It is, and that's a huge problem. But the only solution is for people to get more educated and elect better representatives. There is no other workaround.

But don't be too depressed about it either: the reason grand juries seem to rubber stamp and judges have an easy reelection because, by and large, the system actually works pretty well. The doomsayers are people who want to get elected/stay in power by scaring everybody, and both parties are guilty of that, and both gang up on anybody who says that the government should actually get smaller and less intrusive.

Re:OK, 35 years, then...

[Vidar Leathershod]

Yes, I am very familiar with Jury Nullification. I absolutely believe it is a Juror's moral responsibility to know it and apply it. But as a matter of pure fact, they typically will not. They will not be read, learned, or educated. The fact that the defendant is the defendant will cause most to assume guilt. In practice, the defendant's attorney will have to work hard to prove his client's innocence. If the client is not good looking, this can be very difficult.

I don't say this in ignorance. I have been called upon as an expert witness. The funny thing is, what I have witnessed most is prosecutors' willingness to try to twist the truth, leave out pertinent information or prevent it from being disclosed, and in fact try to take advantage of the ignorance of juries (and I mean ignorance of the particulars of an industry, for example, not that they are ignorant) to try to win a conviction when there is not only reasonable doubt of guilt, but reasonable probability of innocence.

Just like anyone else, they want to *win*. But they often seem to lose sight that *winning* is convicting the right person of the crime, if indeed a crime has been committed.

It cannot be left to Jury Nullification, which is a little known avenue for justice, and only one that is effective with an informed Jury (rare) who are given the right circumstances to detect a problem with the law itself, or how it is being applied, or with the punishments attached to conviction. Also, in many states, mere mention of it can get you into trouble with the court.

Re:OK, 35 years, then...

[Keith Henson]

"Grand juries are a rubber stamp." That may be true now, and it may have always been common, but the US Attorney's tried to get Phil Zimmermann indicted by two grand juries and failed.

Of course they tried this in Silicon Valley where it may be hard to impanel a grand jury without getting someone with a clue.

Re:OK, 35 years, then...

[Anonymous Coward]

Of course, juries are rarely anything approaching "regular Americans." I've twice been dismissed from jury duty for asking basic legal questions during the selection process (stuff like "Wait, I thought you had to provide him a lawyer if he couldn't afford one...is there some official criteria for "afford" that doesn't match the usual definition?")...almost like they don't want jurors who understand the legal system.

Re:OK, 35 years, then...

[Anonymous Coward]

Your hotel analogy kind of works: Swartz walked into an unlocked motel room off the street then started stealing cable service on a massive scale, for redistribution. Yes, there is potentially lots of jail time for that.

Re:OK, 35 years, then...

[Mr. Slippery]

Oh, please, there are hundreds of variables that influence this.

Which means, that low incarceration rates are -- at minimum -- not a stronger cause of violent crime than those "hundreds of variables"; and perhaps not a cause of violent crime at all.

People can reasonably conclude from the data that lower violent crime rates in the US than in the UK are due to higher incarceration rates without seeing a correlation across countries.

No, you cannot reasonably reach a conclusion based on two data points when other data doesn't fit on any sort of interpolated curve. That's the same bad reasoning gun control advocates use: the UK has a lower murder rate than the US, the UK has strong gun control, therefore strong gun control strongly lowers the murder rate. Never mind that you don't see a dose/response relationship when you plot gun control versus homicide rates...

Many gun rights advocates makes the opposite error: the UK has a higher violent crime rate than the US, the UK has strong gun control, therefore strong gun control strongly increase the violent crime rate (unarmed victims are temping).

The data indicates that neither incarceration rates nor gun ownership is a primary driver or deterrent of violence on a society-wide level. (Locking up an individual person, or giving a good person a gun to defend themselves, can impact that person and those around them, of course.)

Re:OK, 35 years, then...

[stenvar]

The data indicates that neither incarceration rates nor gun ownership is a primary driver or deterrent of violence on a society-wide level

Incarceration doesn't function as a deterrent, it simply keeps criminals off the street. It's easy to calculate how many extra crimes the US would have if people weren't locked up by looking at recidivism rates. That doesn't require any comparisons between countries or complicated inferences, or statistical analyses.

For the rest, we agree: neither gun control nor gun ownership have a significant effect on violence in a society; other factors are at work. And that means that guns should remain legal and gun control shouldn't be strengthened, because you shouldn't restrict people's rights without evidence.

MIT STUDENTS SHOULD PROTEST THIS WAY

[Sir Foxx]

Every student at MIT should download and article from JSTOR and post it online. Everyone. Let's see the system deal with that.

Re:MIT STUDENTS SHOULD PROTEST THIS WAY

[Anonymous Coward]

Every student at MIT should download and article from JSTOR and post it online. Everyone. Let's see the system deal with that.

The "system" will deal with it just fine....because the "system" will simply shut the fucking power off.

Perhaps you'd care to suggest an alternate ending other than the prescribed "death sentence".

Re:MIT STUDENTS SHOULD PROTEST THIS WAY

[VortexCortex]

Or, maybe copyright infringement shouldn't be a felony. Or, maybe researchers should publish via open access instead of ransoming back the findings taxpayers payed them to make.

Re:MIT STUDENTS SHOULD PROTEST THIS WAY

[Anonymous Coward]

Hah! now that would be funny... Lets get the students at MIT to all spend an hour of their days downloading a file, and then figuring out how to get it posted online so that JSTOR can ignore them too...

THAT will show them... something... ummmm.

http://orgchart.mit.edu/director-libraries

[Anonymous Coward]

Ann J. Wolpert, the MIT director of libraries, wrote to Ellen Finnie Duranceau, the official who was receiving Jstor’s complaints: “Has there ever been a situation similar to this when we brought in campus police? The magnitude, systematic and careful nature of the abuses could be construed as approaching criminal action. Certainly, that’s how Jstor views it."

So tired of all this.

[Anonymous Coward]

The more details that come out the less sympathy I have for the legal troubles Swartz found himself in. He was smart enough to know going into this that there would be legal repercussions. It's possible he even ran his plan by Lessig, with Lessig explaining that it was wrong and he shouldn't do it. Barreling ahead anyways, he only decided not to do it at Harvard.

Viewed as a good guy?

[Anonymous Coward]

By using the phrase 'viewed as a good guy', it invites you to show the opposite: there are reasons not to consider them a good guy, and the automatic conclusion from the mechanism of the trope becomes: they are not good guys so they must be bad guys.

To the contrary, I have not seen anyone try to paint JSTOR as 'the good guys'. I have seem them painted as 'the neutral guys' or 'the guys doing what they should and can be expected to as reasonable under the circumstances'.

Seriously, over the last couple of years it's like people who love to abuse language have crawled out of the woodwork absolutely everywhere. If you enjoy twisting messages and carefully composing phrases to convey particular emotions and do that to influence politics, then please just fuck off and die. You are a terrible person and society would work better without you.

Mens rea

[CuteSteveJobs]

It's called Mens rea: http://en.wikipedia.org/wiki/Mens_rea

Granted manslaughter isn't as cut and dry as premeditated murder, but I believe it would be having a state of mind of reckless indifference towards human life: http://uk.answers.yahoo.com/question/index?qid=20120228041559AAE8XI3

Stephen Heymann is the real problem

[andydread]

The problem here is Stephen Heymann. He is the real zealous procsecutor here

He has been on a crusade for years for "computer crime" juicy publicty

I remember about a week or so ago Anonymous leaked some long diatribe written by Stephen Heymann about lowering the bar on what defines computer crimes etc. I can't find it now. This guy is on a crusade to make a name for himlself.

Nancy Black v. The US Government

[CuteSteveJobs]

Nancy Black may be a better poster girl: http://www.japantimes.co.jp/text/eo20120803gw.html http://www.huffingtonpost.com/2012/01/06/nancy-black-marine-protection_n_1189118.html

Dale Carson points out there are many, many cases of this going on all the time, but it's been under the public radar. Most of these people get eaten up by the system and no one cares except their family who by then are bankrupted by the lawyers if they could afford them. Public Defenders don't have time for these so-called petty cases. No one else cares so journalists don't even consider it newsworthy. You won't even read about it. Aaron is an exception.

Let ye who is without sin cast the first stone

[Anonymous Coward]

Did he deserve to die, or are you happy with 50 years jail? You better hope I'm not on your jury if you're ever busted for J-walking.

Re:Let ye who is without sin cast the first stone

[wonkey_monkey]

Did he deserve to die, or are you happy with 50 years jail?

What do those questions have to do with the GP's post?

Re:Let ye who is without sin cast the first stone

[Anonymous Coward]

50 years? Why are we just arbitrarily adding on to the theoretical maximum sentence of 35 years? What rules of rounding state that 35 -> 50 is reasonable? Further, entencing guidelines would call for 6-24 months incarceration. In a minimum-security facility.

So don't act as if his life had become worthless. And you're blaming his death on others? If 6 months (which was offered in a plea bargain) is simply too much for you to bear, you don't have the guts needed to be an activist.

Swartz didn't "break into" anything

[mangu]

Swartz is a lousy poster boy, because physically breaking into a network and committing massive copyright violation

He did nothing of the sort. If you just RTFA you would know that the only thing he did wrong was to use a script to download the papers, instead of getting them one by one.

He had the right to download those papers, he never passed them to anybody else, he did not commit copyright violation.

The only effect of his actions was that, because he downloaded a lot of documents, the system was stressed more than it would ordinarily be.

Essentially, it was like being prosecuted for clicking on too many links in a web page. Or, as his lawyer put it, for checking out too many books from a library. He did nothing he didn't have the right to do, only he did it more often than was expected.

Re:Swartz didn't "break into" anything

[Anonymous Coward]

He had the right to download those papers, he never passed them to anybody else, he did not commit copyright violation.

So why did he return the files to JSTOR instead of telling them to pound sand?

Re:Swartz didn't "break into" anything

[Anonymous Coward]

So that as it's said in Sicily, it didn't look like an accident?

I just have one small question

[Anonymous Coward]

Who or what the fuck is a JSTOR? Would it kill the summary writer to explain the acronym?

Re:I just have one small question

[Anonymous Coward]

Well once upon a time the universities got sick at being ripped off for journal access by academic publishers and wanted information to be free and so made their own journal database and called it JSTOR. And then they got greedy. JSTOR is technically not-for-profit - like a charity - which explains why they wanted Schwartz imprisoned for making information free.

Re:I just have one small question

[pseudofrog]

Google is hard :(

Re:I just have one small question

[taxman_10m]

I've heard this complaint before that JSTOR is greedy. Can anyone put some numbers to this? In one article I saw it said that MIT paid $50k a year for access to JSTOR. $50k from an institution like MIT? That to me seems like nothing.

Re:I just have one small question

[sesshomaru]

Look, I guess it is an acronym, but they don't even explain it on their about page:

About JSTOR

It could be a random brand name for all I know, like Yahoo or Twitter. Basically, it's a company that makes money providing students access to digitized scholarly article.

Oh, they have this on the about page:

We are deeply saddened to hear the news about Aaron Swartz. We extend our heartfelt condolences to Aaronâ(TM)s family, friends, and everyone who loved, knew, and admired him. He was a truly gifted person who made important contributions to the development of the internet and the web from which we all benefit.

I'm surprised at the sympathy for the fearsome criminal who stole from them, and who the prosecutors felt needed to face 35-50 years at trial to protect us all from this monster.

Re:I just have one small question

[Entropius]

Is JSTOR essentially to the humanities what arXiv is to physics etc.? It seems like arXiv is a far friendlier system: the only penalty for repeated automated downloads is "we will ban your subnet for a while to protect our CPU power, since each download requires some rendering from TeX source". The thought of arXiv seeking prosecution of someone is just absurd.

(It's also free to anyone, not just university users...)

Re:I just have one small question

[Anonymous Coward]

That to me seems like nothing.

One dollar would be something. One dollar means several billion people have no access. That's the problem with people who seem to think that "cheap" equals "close to free". It's not; as soon the cost is non-zero that means usually significant distribution management/control overhead, strongly misaligned incentives (people employed to manage/control will try to minimize their salary? As if!), no attempt to minimize or spread costs (you can always charge more; the IEEE is a classic example of this) and probably some form of DRM (passwords if nothing else).

Re:I just have one small question

[Anonymous Coward]

They are not similar regarding how content is placed (or acquired) by the organization. Take a look at wikipedia to see the differences.

Re:I just have one small question

[Entropius]

Well, sure, but they serve the same purpose: a community-funded and free to use distribution mechanism for scholarly papers.

The physics community has gotten its shit together and created a friendly way for people (inside and outside the community) to read its papers. It looks like the JSTOR folks haven't accomplished the same thing.

Re:I just have one small question

[Anonymous Coward]

Not at all. JSTOR is a frontend to a bunch of publishers who allow their property to be viewed through JSTOR. Nothing there (well, practically nothing, I'm sure there are edge cases) is in the public domain, most of it can't even be viewed unless you're partnered with a university or other organization that pays the exhorbitant access fees.

ArXiv is just a place where people dump their research, in that they voluntarily make it free for all to view. Much of the time, they go on to publish it in a journal (and it might end up on JSTOR), but much of the time they don't. As a result you have a mixing ground of complete garbage (people claiming to disprove long-understood theorems with nothing beyond basic, but misapplied algebra), real research, and even brilliance (Grigori Perelman, for one).

Re:I just have one small question

[Anonymous Coward]

It also means having a credit card at your disposal.

Re:I just have one small question

[Anonymous Coward]

Not only is $50k for an institution like MIT reasonable (you should see the price of journals or large collections of them), but JSTOR is a non-profit organization. Unlike many of the journal publishers, they aren't in it to make a profit. JSTOR's goal is covering the costs of digitizing, indexing, and their web servers. None of these costs are zero, so I don't know why people would think they are "greedy" to charge a fee for access. If they got enough donations, I suppose they wouldn't have to do that. Short of enough donations, the money has to come from somewhere.

Re:I just have one small question

[Anonymous Coward]

There are similarities and differences. JSTOR mainly digitizes old (i.e. paper) journals, although they have started to cover more recent stuff too. It's mostly science journals, although there is quite a variety (it's certainly not humanities only). Like arXiv, their costs aren't zero and they rely on donations to cover costs, but donations aren't enough to cover all of it, so they charge universities and other institutions for access to make up the difference. I'm sure if JSTOR got enough money that large parts of it could be free access. Part of the problem is the deals they have with journal publishers who still hold the copyright to the papers. It's fine to say "information should be free", but if it costs money to provide it and the copyright holder won't let you, then it's pretty hard to actually do it. Even arXiv doesn't generally have the final papers submitted to journals. They have the preprints/manuscripts prior to publication. They also collect voluntary donations from institutions to support it.

Re:I just have one small question

[Anonymous Coward]

No, JSTOR hosts copyrighted material. They have to pay the publishers for that material. The non-copyrighted material is free to everyone. The universities pay JSTOR for access to the copyrighted material instead of negotiating deals with each of the publishers.

I used to work for them, nice folks, but greedy bastards pay better :-)

Ever heard of Google, Wikipedia, and typing a URL?

[SplatMan_DK]

Who or what the fuck is a JSTOR? Would it kill the summary writer to explain the acronym?

Most people know what it is, because of the Swartz-case. So you missed it - fine - but rambling about it on a geek-site like /. is hardly the way to go.

Have you tried Googling it?
https://www.google.com/search?q=JSTOR

have you tried looking it up on Wikipedia?
http://en.wikipedia.org/wiki/JSTOR

Have you tried simply visiting their homepage - perhaps even their "about" page?
http://about.jstor.org/

Was that so hard? Really?

Seriously ... as a reader and poster here ... you have failed! :-)

- Jesper

MIT coudl replace JSTOR.

[couchslug]

With their resources, MIT could do the same thing in-house instead of outsourcing.

MIT is a wealthy institution and could afford to free considerable information without being adversarial. The solution isn't "lone rebels freeing the info", but using massive resources to break it loose instead.

You trust this guy?

[Anonymous Coward]

Mod parent useful. Stephen Heymann sounds like a nutbag and that all he gives a shit about is prosecuting people. Worry about finding a name for the crime later.

> During another investigation in the 1990s, Heymann wanted Harvard to place a electronic banner on its intranet telling users they were being monitored, as Network World reported. He said would allow the feds to monitor the network without getting a court order. Harvard disagreed, saying it respected the privacy of its users. According to his Harvard biography, Heymann is responsible for supervising approximately 80 criminal prosecutors and reviewing the majority of approximately 400 indictments returned and informations filed annually.

Anyone trust this nutbag with your liberties? He has done it before too: Aaron Swartz prosecutor 'drove another hacker to suicide in 2008 after he named him in a cyber crime case. http://www.dailymail.co.uk/news/article-2262831/Revealed-Aaron-Swartz-prosecutor-drove-hacker-suicide-2008-named-cyber-crime-case.html#ixzz2IhxDiQLD

Re: You trust this guy?

[sesshomaru]

The prosecutor [Heymann] even claimed Watt had psychopathic tendencies and was trying to bring down the entire financial system, Watt told Business Insider.
Those accusations came after Watt admitted to liking the movie "Fight Club," according to Watt.
"I think that he had a very bombastic manner of describing the crime and the alleged calculating manners of the co-defendants," Watt said.

Read more: Ex-Con Shares How Hard It Is To Be Targeted By One Of Aaron Swartz's Prosecutors

Heymann does seem to be a particularly bad example of a bad bunch of people, an Ogre among the Orcs. The truth is, the corruption of the Justice Department goes all the way up to the President, and includes Eric Holder and Carmen Ortiz as well. (I'm not being partisan here, the previous administration was no better, but we are talking about today.)

OK, wait, What?

[Anonymous Coward]

So this guy is being fined for downloading papers from MIT? Isn't that kind of what schools are for- reading, research, sharing knowledge and such. Or have they become a classified nuclear facility, and nobody let the rest of us know.

The only good guy in this story

[Anonymous Coward]

just killed himself. Nice going.

Instapundit

[Frankie70]

You forgot the bit that comes before the trial, where the prosecutor makes terrifying threats in an effort to intimidate the suspect into a guilty plea in the hope of leniency, regardless of actual guilt or likely outcome if it had gone to trial.

Glenn Reynolds recommends the following law changes wrt plea bargaining.

- Ban plea bargains all together, so that every criminal charge filed would have to be backed up in open court.

- Alternatively, âoewe might require that the prosecutionâ(TM)s plea offers be presented to a jury or judge before sentencing. Jurors might then wonder why they are being asked to sentence a defendant to 20 years without parole when the prosecution was willing to settle for 5. 15 years in jail seems a rather stiff punishment for making the state undergo the bother of a trial.â

Re:Instapundit

[Belial6]

Plea bargaining is a completely corrupt system. It should be done away with. It is literally sentencing people to jail time for demanding their right to a trial.

Re:Instapundit

[HereIAmJH]

Plea bargaining works in the defendant's favor at times too. A friend of mine used to get tickets quite often. In order to keep his license he would hire a lawyer each time. That lawyer would talk to the prosecutor and agree to plead to a lessor non-moving violation with a fine. Speeding? Speedometer was off. Equipment violation, $200 fine and no points. It used to be so common that DUIs were plead down to C&I (Careless and Imprudent), that insurance companies just assumed a C&I was actually a DUI and adjusted your rates accordingly.

Les Miserables

[rmdingler]

Valjean's descent from peasant to yellow card carrying convict, after serving 14 years in the gallows for bread theft & repeated escape attempts, is an odd parallel at first glance. In reflection; Both Schwartz and Valjean intentionally broke the law of the land, both offenses seem rather petty to most of their peers, and both faced draconian punishments. Of course, one man was stealing food for his starving sister and the other gent was engaged in idealistic hactivism, but I can see how prosecutorial discretion has the ability to continue our society's descent to a place where being a felon is so ubiquitous it's no longer a Big Red F.

Re:Les Miserables

[interkin3tic]

but I can see how prosecutorial discretion has the ability to continue our society's descent to a place where being a felon is so ubiquitous it's no longer a Big Red F.

Oh, don't worry, they'd never let it get watered down to that point. They'll make sure "felon" still makes people think they're horrible people. Kind of like how they label people "sex offender" for a ton of crimes that have nothing to do with sex, but most people would still see that as a mark of a pervert, rather than someone who got drunk and peed in public.

These people ARE taking it up with the law.

[Anonymous Coward]

But you then go around and whine "You can't blame the prosecutor!". Except that she IS the law.

Skaters

[Anonymous Coward]

Sometimes Slashdot rants are like Skaters being told they can't skate on public property.

"Why, man? "
"It's not a rime, dude"
etc. blah blah.

Swartz Death Sentence

[myelizacitra]

The Swartz case has been a Hot topic over internet these days.Some say's he is right and some says wrong.But i think we should leave all this on law and obey its order...... http://tiny.cc/qbgbrw

The Tech on Aaron Swartz

[sesshomaru]

The comments on this "The Tech," "MIT's oldest and largest newspaper & the first newspaper published on the web," online edition are very good:

Aaron Swartz commits suicide By Anne Cai

Re:The Tech on Aaron Swartz

[balbus000]

Apparently, http://mit.edu/ has been hacked by Lulzsec.

Restitution?

[Anonymous Coward]

For what? Nothing was lost.

Zero

[Anonymous Coward]

And I bet you still voted for Zero anyway.

Trust me, things will continue to get worse unless we vote in as many true limited-govt conservatives like Ron Paul who want to scale back govt to be as small as possible.

Until then, look forward to the day when all crimes are felony and only one punishment-death.

Re:Zero

[AF_Cheddar_Head]

Yes, by all means scale back the federal government to zero then when the states AKA Mississippi denies rights to a minority the federal government doesn't have the capability to intervene. Just what the state's rights people really want.

The school that started "hacking"

[tekrat]

Isn't this the very school that *created* hacker culture with the model railroad club and people lockpicking their way into offices at the school?

Is this school now going to teach that the investigative process itself is now a crime? That, if you try and figure out how something works, essentially reverse engineer it, you're a criminal?

What has happened to our world? Dammit, the vast majority of the infrastructure of the internet was created by college students, as a free and open system that was run largely on chaos theory.

I think it's time we took back our internet.

murderdeathkill's too good for the lot...

[Anonymous Coward]

If companies are people, the state should be able to execute them.

Re:murderdeathkill's too good for the lot...

[GodInHell]

What company? The complaints here are about prosecutorial discretion -- that's the gov't, not a company.

Re:murderdeathkill's too good for the lot...

[TheCRAIGGERS]

You must be new here. Government and "Big Money" are pretty much the same thing now.

I'm not sure how one would provide a source for this, but it seems to me that most new laws nowadays are obviously there to protect powerful companies, instead of the common good of the people.

Re:murderdeathkill's too good for the lot...

[tacokill]

They do. Google Arthur Anderson.

Anatole France quote

[fritsd]

a nice quote from the same time period, from Anatole France:

"The law, in its majestic equality, forbids the rich and the poor alike to sleep under bridges, to beg in the streets, and to steal bread." (Le Lys Rouge)

Re:Anatole France quote

[rmdingler]

"When a thing has been said and well, have no scruple. Take it and copy it."

Bull

[tekrat]

"There's a good book by ex-FBI cop & criminal lawyer Dale Carson who explains these people have run out of big time criminals to prosecute, and so now the justify their existence by filling jails with poor saps who meet this criteria,"
----

In a word, that's bull. The world is filled with big time criminals. The problem is that they are "too big to prosecute". Look at HSBC. They laundered money, knowingly, for drug dealers, terrorists, and Iran (helping to fund their nuclear program).

Even after a full investigation, and HSBC admitting to criminal activity to the tune of billions of dollars, wanna take a guess how many people went to jail?

If you guessed anything other than ZERO, you are wrong. HSBC was fined 1.9 Billion Dollars, and then let off the hook. HSBC, incidentally, can make up for that fine over 4 weeks with some slightly more risky trading, and perhaps charging their customers a few pennies more per transaction.

The point is: Prosecutors don't go after "big targets" to make their name, because it's much, much tougher to win a case against an organization that can spend more in lawyers than the entire GDP of your district.

As a result, there have been no prosecutions of anyone guilty of market manipulation for the "Great Recession", there have been no prosecutions for "robosigning foreclosures", there have been no prosecutions for insider trading, there have been no prosecutions for LIBOR, there have been no prosecutions for HSBC.

So, Prosecutors spend their time being High School Bullies, going after targets they know they can win because the little guy has no resources to fight. That's why we have the highest incarceration rate in the world, and our jails are filled with petty criminals -- people busted for a few ounces of Pot. But the real criminals drive in limos.

Re:Bull

[Anonymous Coward]

In case anyone doubts this, I spent two years in prison for posession of 1.19 grams of marijuana in the fine state of Alabama.

My first bunkmate was at the tail end of a 25 year sentence for murder.

For the record, there were no cells...just 200 man dormitories. no air conditioning. we were not issued enough soap to last the week, nor any deodorant.

Having survived this, I am a convicted drug felon, and will likely never find work in a computer related field. Its a good thing I know how to cook.

I can't even ditch my yellow ticket of leave and go underground, the information grid is now so cheap that my full background is available to all.

JSTOR is the bad guy

[Anonymous Coward]

Why do none of you idiots get the true nature of JSTOR. Like the organisations that pretend to collect artist 'fees' from the users of recordable media in more primitive nations, JSTOR exists purely to put extreme amounts of money into the pockets of those that run the organisation. For the big universities, JSTOR pays massive kick-backs to higher university administrators. JSTOR has only one goal- to make the access of academic papers ever more expensive year-on-year.

It gets worse. Not only is JSTOR a vile criminal conspiracy, it is a very pro-active one. Go to any forum talking about this issue, and I promise you you will see long posts that pour hate on Aaron, and sing JSTOR's praises to the sky.

Always, where lots of money is concerned in a highly dubious or illegal enterprise, the most ruthless methods are ALWAYS deployed to protect the money stream. In this sense, JSTOR is no different from a big drug producing cartel- except JSTOR actually produces nothing, operating as a pure parasite. Cross either, and expect to get 'rubbed out'.

Organisations like JSTOR will use their massive funds to place tentacles into every influential aspect of society. They consider their primary goal is to always be one step ahead of their opponents, no matter how much money this takes. Like the musical 'fees' collection agencies, their truest and most dangerous enemy is the people that create the material they seek to control. If the authors of the academic papers ever seek to speak with a loud enough voice, JSTOR is clearly doomed.

Why hasn't JSTOR fallen yet. Well, it pays significant kick-backs to many of the 'bosses' of those that write the papers in the first place, to ensure it has vocal supporters of the status quo near ground level. People tend to fear their bosses, so dissent is neatly suppressed.

Anyway, think again of the amount of money involved. Remember, universities are, first and foremost, academic organisations. This being so, a university has no issue taking a VERY large subscription from every student (hidden in general fees) and giving this to JSTOR. University fees are rising faster than inflation in most nations, so JSTOR can tap every student for an every larger pay-out. The money JSTOR gets per student dwarfs the monthly fees collected by cable TV companies (if you take into account the average number of people in the TV household). We are talking about an incredible amount of money. We are thus talking about an incredible amount of corruption.

The costs of scanning and placing online academic papers is now trivial. Better, a free and open system would benefit from 'crowd-sourcing', where the community itself would automatically add features infinitely more useful and advanced than anything a commercial company could or would provide. Sadly, one of JSTOR's strongest arguments is that JSTOR effectively limits real access to elites, and this is what governments should crave.

Re:Ever heard of Google, Wikipedia, and typing a U

[Anonymous Coward]

There are a lot of different types of geeks that read Slashdot. Is it really so hard for the editor to include even the most basic description of the subjects mentioned in the summary, especially when its a fucking acronym? "JSTOR, a digitized repository of academic journals, ...". Is that really too much to ask for in a fucking summary?

Jesper, please quit making excuses for poor editing. You really make yourself look like an asshole.

How to fix the broken system:

[Anonymous Coward]

The Trillion Dollar Coin: What You Really Need to Know

Another time the U.S. government printed its own money was in 1963 under Kennedy’s Executive Order No. 11110 that returned to the U.S. government the power to issue currency, without going through the Federal Reserve. This order instructed the Treasury to print bills against any silver inventory held by the government. There were billions of these certificates printed and they were known as United States Notes and they were all interest free. Some of you may remember some of these bills as they had a red seal, rather than the more common green seal of the Federal Reserve Notes. These United States Notes represented a mortal threat to the Federal Reserve System, and we all know what happened to Kennedy 5 months later.

After the Kennedy assassination, no more interest free United States Notes were issued. The Executive Order was never repealed by any U.S. President, This Executive Order is still valid, yet no president Republican or Democrat has ever utilized it!

Think about this, much of the $16 trillion in debt that was created since the Kennedy assassination has been because of the interest payments on the debt. If any subsequent president had found the courage to use Executive Order 1110, our current level of debt would be magnitudes smaller. We would not be in the same mess we are in now. So when you hear people talking about needing budget cuts in order to solve our problems and leaving a legacy of debt to our children, you are listening to people who do not understand our monetary system, or worse, they are supporters of the current system of debt that can never be paid off with the resulting perpetual interest payments to the private bankers. The better solution would be to have the government issuing its own money, debt free. Now that would be a great “gift” to our children and grandchildren!

One very valid point made by critics of having the government being able to issue its own money is that there will be nothing to restrain the government from simply overspending. In reality, banker issued debt money has also done little to limit government spending. The mechanism we have currently for that now is the congressionally approved debt ceiling, however flawed that is. Any move towards government issued money could be met by congressionally mandated structures to prevent runaway spending. At the least, if we did not have to deal with the interest payments, our spending would be significantly less than it is currently and that would help cut the deficit significantly.

Captcha: interim

Ode to Aaron Swartz

[sgt_doom]

The ode,

http://www.youtube.com/watch?feature=player_embedded&v=Qb0tCgNzbjk

The reason:
http://www.youtube.com/watch?NR=1&v=9-UyhdNxv-4

http://www.nytimes.com/2013/01/21/technology/how-mit-ensnared-a-hacker-bucking-a-freewheeling-culture.html

torrent

[cellurl]

This article convinced me. I will publish our speed limit data on a torrent.

We have a big database and we want it to be realtime, but it costs $72/month (you know who hosts us) which adds up quick.
So alas, when the money dries, we will torrent it...

Help eliminate stupid speeding tickets"

yellow

[Anonymous Coward]

slashdot sez: hey? where'd all our readers go?

it's headline like this that helped us leave.
buh bye! *wave*

Socrates & Hemlock

[Anonymous Coward]

I just realized that Aaron is the modern equivalent of Socrates.

Re:Bullies

[CuteSteveJobs]

To be fair, Carson said that there are big criminals but not on the scale there once were. He said they are easy to arrest, but hard to prosecute. They need big and long police probes to gather evidence, and they are wealthy so will be defended by top tier lawyers. So do Oritz and Heymann go after the drug kingpins of Miami? No. Too much work. Low-hanging fruit like Aaron are much more attractive. He's a frightened kid with a family. They know they can break him easy. He doesn't have much money. Once they decide to go after him they know they can find something to stick him with. They're bullies who choose weaklings instead of other bullies.

White collar criminals have it much easier, but if they make for a career-making photo OP then prosecutors will use the same tactics they used on Aaron to find something to stick: http://www.guardian.co.uk/commentisfree/cifamerica/2009/nov/17/silverglate-three-felonies-book

More sordid stuff

[Anonymous Coward]

At this following link

It doesn't work any more

[Anonymous Coward]

Whole point of civil disobedience is to shame the government into dropping absurd laws. The problem is today's government prosecutors have no shame and they are never held to account. Oritz and Heymann won't get so much as a slap on the wrist and not like this is a one off because Heymann drove another victim to suicide. They don't give a shit about anything but climbing the career ladder.

that proves nothing

[SuperBanana]

A prosecutor can get an indictment from a grand jury, if he wants one, in just about any case: of the circa 20,000 cases brought to a grand jury per year, fewer than 100 will result in a "no bill" (refusal to indict), for an indictment rate of around 99.5%.

And your point is what, exactly?

I could just as easily say "Because prosecutors know they have to convince a grand jury that the case is worth it, they're very careful about what they bring to the grand jury."

Several friends have served on grand juries. None of them described any of the cases as jokes or questionable. Both said the same thing: the criminals were incredibly stupid, leaving substantial evidence behind.

Non-profit racket

[CuteSteveJobs]

Same deal with non-profits ICANN who oversee domain names: In theory non-profit but the people who run it are richly compensated. That JSTOR locks up publicly-funded knowledge to keep it out of the hands of the masses really sucks, and it was started by Princeton!
"Who are the most ruthless capitalists in the western world?" George Monbiot of the Guardian asks in a recent article. Scanning this week's headlines alone, one would find any number of viable candidates. Monbiot's answer: "While there are plenty of candidates, my vote goes not to the banks, the oil companies or the health insurers, but – wait for it – to academic publishers...Of all corporate scams, the racket they run is most urgently in need of referral to the competition authorities."
http://townsendlab.berkeley.edu/thl-administration/lab-blog/academic-publishing-one-big-racket
http://www.guardian.co.uk/commentisfree/2011/sep/02/bad-science-academic-publishing
http://www.guardian.co.uk/science/2011/aug/31/real-cost-academic-publishing
http://www.guardian.co.uk/commentisfree/2011/aug/29/academic-publishers-murdoch-socialist

Both JSTOR and MIT are engaged in self-dealing

[Paul Fernhout]

So their tax-exempt status could possibly be revoked. From a decade ago: http://www.pdfernhout.net/open-letter-to-grantmakers-and-donors-on-copyright-policy.html
"Foundations, other grantmaking agencies handling public tax-exempt dollars, and charitable donors need to consider the implications for their grantmaking or donation policies if they use a now obsolete charitable model of subsidizing proprietary publishing and proprietary research. In order to improve the effectiveness and collaborativeness of the non-profit sector overall, it is suggested these grantmaking organizations and donors move to requiring grantees to make any resulting copyrighted digital materials freely available on the internet, including free licenses granting the right for others to make and redistribute new derivative works without further permission. It is also suggested patents resulting from charitably subsidized research research also be made freely available for general use. The alternative of allowing charitable dollars to result in proprietary copyrights and proprietary patents is corrupting the non-profit sector as it results in a conflict of interest between a non-profit's primary mission of helping humanity through freely sharing knowledge (made possible at little cost by the internet) and a desire to maximize short term revenues through charging licensing fees for access to patents and copyrights. In essence, with the change of publishing and communication economics made possible by the wide spread use of the internet, tax-exempt non-profits have become, perhaps unwittingly, caught up in a new form of "self-dealing", and it is up to donors and grantmakers (and eventually lawmakers) to prevent this by requiring free licensing of results as a condition of their grants and donations."

See also:
http://en.wikipedia.org/wiki/Self-dealing
"Self-dealing is the conduct of a trustee, an attorney, a corporate officer, or other fiduciary that consists of taking advantage of his position in a transaction and acting for his own interests rather than for the interests of the beneficiaries of the trust, corporate shareholders, or his clients. Self-dealing may involve misappropriation or usurpation of corporate assets or opportunities. Self-dealing is a form of conflict of interest.[1]"

The self-dealing happens because the non-profit could make its digital resources available to the world for essentially free these days. But instead MIT and JSTOR impose artificial scarcity to extract a revenue stream for its staff in order so it may then create new resources which it also sells access to make more such resources etc.. That model may have made some sense in the 20th century, but it makes no sense in the 21st. The argument that access to digital resources today should be restricted to support making more digital resources tomorrow is not one that a tax-exempt organization should legally be able to make these days IMHO. And in order to sustain their self-dealing, they contributed to the death of an idealistic young man, Aaron Swartz to sustain their obsolete and now essentially corrupt business models, which just highlights how evil what they (and many other non-profits) are doing has become bit-by-bit year-by-year if artificial scarcity ever made sense for a non-profit.

So, perhaps a way forward here is to make an example of both MIT and JSTOR by getting their IRS tax exempt status and also corporate charters revoked (a corporate "death sentence") for the act of self-dealing? That might serve as an example to other tax-exempt non-profits to shape up and make their digital works freely available before they get the same treatment? See also:
http://www.ratical.org/corporations/
"In most states a lot of the language from the early days, that reflected the subordinate nature of corporations is still on the books

Carmen Ortiz’s Sordid Rap Sheet

[Anonymous Coward]

She's bad news: http://whowhatwhy.com/2013/01/17/carmen-ortizs-sordid-rap-sheet/

Carmen Ortiz's conduct on other cases

[CuteSteveJobs]

"Mr. Caswell’s family-owned and -operated property was worth approximately $1.5 million with no mortgage—making it a perfect target. Without a bank involved, the likelihood of the Caswells’ mounting a drawn-out legal defense was miniscule. For Carmen Ortiz, Russ Caswell was like the weakest kid on the block who was wearing something she, or the agencies her office represents, coveted. Ms. Ortiz’s fervency seems to have stemmed from the publicity such cases were sure to generate. All the defendants insisted on their innocence and fought the charges. The jury’s still out on O’Brien and Caswell, but Swartz and Mehanna have paid the price for their defiance."
http://whowhatwhy.com/2013/01/17/carmen-ortizs-sordid-rap-sheet/

There is a petition to remove her, but don't hold your breath. She is an Obama appointee and her Heymann's dad worked for Clinton.
https://petitions.whitehouse.gov/petition/remove-united-states-district-attorney-carmen-ortiz-office-overreach-case-aaron-swartz/RQNrG1Ck
http://en.wikipedia.org/wiki/Carmen_Ortiz

Re: "The prosecutors killed Swartz. That's it."

[LuYu]

From when I first heard this news, I could not help thinking of the Dmitry Sklyarov case. In both cases, a corporation complained: Adobe and JSTOR. In both cases, when the the corporation found this action was not popular, they "officially" backed off: Adobe dropped the charges due to an internet outcry. JSTOR was "unwilling" to press charges. Finally, in both cases, the prosecutor was adamant that the trial continue.

I think the puppet show should be fairly obvious to anyone looking at the facts. JSTOR was obviously complaining a lot to MIT and pushing MIT to prosecute. JSTOR just did not want anyone to know publicly that they were doing that. Will MIT publish all of its communications with JSTOR related to this incident? While TFA names the individual at MIT that was receiving the complaints, it does not mention who at JSTOR was complaining. I find the secrecy around this a little telling.

In an assassination, who is the real murderer: the person who orders the assassination or the person who pulls the trigger? In my opinion, they are all guilty. JSTOR is playing innocent, and they should not be allowed to do so. Further, Aaron had a point, JSTOR's existence is an assault on the First Amendment and the very concepts of democracy and science.

I think that JSTOR should be dissolved as a result of this incident, and all documents under its control should lose their copyrights; publishers be damned.

Petition to Fire Asst. US Attorney Steve Heymann

[SgtChaireBourne]

In addition to calling in Ortiz, there is a petition to Fire Assistant U.S. Attorney Steve Heymann. The petitions by themselves might not do much but they do keep the ball rolling. What was done to Swartz has been and is done to many others.