Patterico's Pontifications

1/14/2013

Wall Street Journal on the Swartz Plea Bargain

Filed under: General — Patterico @ 7:28 am

Yesterday Patterico.com exclusively reported information about the plea deal that Aaron Swartz was offered by prosecutors: plead to all 13 felonies and receive prison time, or go to trial and face a request from prosecutors for 7-8 years in prison if convicted:

Swartz’s lawyer, Elliot R. Peters of Keker and Van Nest LLP, echoed these sentiments to me today in an interview. Peters refused to speculate about why Swartz committed suicide. He described Swartz as a “very sensitive and very smart person” who had been “very scared” by the Government prosecution. Peters told me that, in his opinion, the Government had been “awfully unreasonable” in their approach to the case. He said that they insisted that Swartz plead to all 13 felonies. They said that even if Swartz pled guilty, they were going to seek a prison sentence. They told Peters that if the case went to trial and Swartz were convicted, they would seek a prison sentence of 7 to 8 years. They told Peters that they thought the judge would impose that sentence. (Peters told me he didn’t agree; he thought the case was defensible and that even if Swartz lost, Peters didn’t think the judge would have sentenced him to custody time.)

Swartz, the Internet activist who was being prosecuted for downloading JSTOR files that were recently opened to the public, found a final way to reject the offer: he hung himself on Friday.

Today, the Wall Street Journal puts more meat on the bone, revealing that the Government reiterated its position on Wednesday, two days before Swartz hung himself:

Mr. Swartz’s lawyer, Elliot Peters, first discussed a possible plea bargain with Assistant U.S. Attorney Stephen Heymann last fall. In an interview Sunday, he said he was told at the time that Mr. Swartz would need to plead guilty to every count, and the government would insist on prison time.

Mr. Peters said he spoke to Mr. Heymann again last Wednesday in another attempt to find a compromise. The prosecutor, he said, didn’t budge.

Mr. Heymann didn’t reply to requests for comment Sunday.

With the government’s position hardening, Mr. Swartz realized that he would have to face a costly, painful and public trial, his girlfriend, Taren Stinebrickner-Kauffman, said in an interview Sunday. The case was draining his money, and he would need to ask for help financing his defense; two of his friends had recently been subpoenaed in the case. Both situations distressed him, she said.

The article also reveals that the Government (according to an anonymous source) was willing to offer a recommendation of 6-8 months in return for a plea:

In a superseding indictment handed up in September, prosecutors expanded the original charges to include 13 criminal counts that could have carried an even lengthier prison sentence.

The government indicated it might only seek seven years at trial, and was willing to bargain that down to six to eight months in exchange for a guilty plea, a person familiar with the matter said. But Mr. Swartz didn’t want to do jail time.

“I think Aaron was frightened and bewildered that they’d taken this incredibly hard line against him,” said Mr. Peters, his lawyer. “He didn’t want to go to jail. He didn’t want to be a felon.

Whether the Government’s settlement offer was reasonable probably depends on your view of Swartz’s conduct. Did he steal millions of dollars’ worth of valuable intellectual property (which the company just recently decided to give away for free)? Or was he an activist trying to make information free? Or something in between?

Here is Swartz giving a keynote address about SOPA:

It’s clear he was devoted to free speech — but a young man’s rather twisted and leftist version of free speech, in which participation in denial of service attacks is seen as “speech” rather than an attempt to silence speech. That’s consistent with what they teach at the schools, where shouting down a speaker is seen as an exercise of one’s rights rather than the denial of others’ rights to speak and be heard.

These disagreements aside, it’s a shame that he decided to take his own life.

By the way, the WSJ does not touch on an aspect of Swartz’s case that I blogged about yesterday. Namely: papers filed the day Swartz died revealed publicly that the Government had recently disclosed information that undercut one of the arguments they had been making in some significant pretrial motions. In an exclusive interview with this web site, Swartz’s lawyer described the Government’s arguments as “disingenuous and contrived.” At a minimum, the evidence disclosed after the motions were filed tended to undermine one of the Government’s arguments against suppression of key evidence in the case. If you haven’t read it yet, I think the post is worth your time.

UPDATE: Orin Kerr opines that the charges against Swartz were legitimate, assuming the truth of the factual allegations in the indictment. He promises a future post on the justice of the plea offer — but if he agrees with the charges, my guess is that he won’t see a 6-8 month offer as overbearing. I would be interested in his take on the suppression issues discussed in my previous post.

206 Responses to “Wall Street Journal on the Swartz Plea Bargain”

  1. Ding.

    Patterico (8b3905)

  2. Yesterday Patterico.com exclusively reported information about the plea deal that Aaron Swartz was offered by prosecutors

    It wasn’t clear to me, and I think maybe to anyone else, that there was a plea deal he had been offered, although if you read it carefully, there’s a clue:

    He said that they insisted that Swartz plead to all 13 felonies. They said that even if Swartz pled guilty, they were going to seek a prison sentence. They told Peters that if the case went to trial and Swartz were convicted, they would seek a prison sentence of 7 to 8 years.

    Sammy Finkelman (d22d64)

  3. The lawyer didn’t tell me what time they had offered in the deal. That came out in the WSJ article. It was presumably less time than what he would get at trial — and the WSJ article confirms this.

    Patterico (8b3905)

  4. THE WSJ article notes that Swartz suffered from depression, and a mental health expert warns against rushing to conclusions about why Swartz took his own life. I tend to agree — it’s probably not just one thing. I’m sure the legal problems were a concern for him, but lots of people have legal problems and the vast majority don’t kill themselves over them.

    It’s sad, no matter how you slice it.

    Kman (5576bf)

  5. I hadn’t notioced the Wall Street Journal article. There’s no mention on the front page. It’s in the middle of page B1.

    Sammy Finkelman (d22d64)

  6. The Wall Street Journal article says:

    On Wednesday, after a 10-month trial program, JSTOR opened its archives to free reading by the public.

    This might be half accurate as the Wikipedia article

    JSTOR is licensed mainly to academic institutions, public libraries, research institutions, museums and schools. More than 7,000 institutions in more than 150 countries have access.[4]

    JSTOR has been running a pilot program of allowing subscribing institutions to provide access to their alumni, in addition to current students and staff. The Alumni Access Program will officially launch in January 2013…

    But it also says:

    and in 2012 JSTOR launched a program providing limited no-cost access to old articles for individual scholars and researchers who register[5]

    It might be that now there are or will be no requirements for someone to register, except posisbly joining a free library.

    Sammy Finkelman (d22d64)

  7. His girlfriend, Tarin Stinebrickner-Kauffman, who had been living with him for a few months, about a year after they started dating, says he became upset when he concluded MIT wasn’t going to stand up for him. His father said it was a “tragedy” that MIT didn’t try to stop the prosecution. Now MIT is investigating itself. (the president of MIT sent an e-mail expressing sadness and said he’d commisisoned an analysis of their role)

    His girlfriend said it was only this past week that she noticed depressive episodes, when it became “too much to contemplate.” When she left for work that morning he said he was going to stay home and rest. He used to “lean into the pain” but this time, she said, he fell into it.

    She was worried about him, and texted him during the day, but his phone was off, but that wasn’t unusual.

    He didn’t wnat to go to jail and he didn’t want to be a felon.

    Sammy Finkelman (d22d64)

  8. He didn’t wnat to go to jail and he didn’t want to be a felon.

    Who does? But it now appears that Swartz was facing not 7 or 8 years, but 6 or 8 months.

    I know many of the commentors seem to believe that Swartz either did nothing wrong or should have been let off with a warning, but this does not, considering the conduct alleged in the indictment, which no one disputes, strike me as onerous or unfair.

    CalFed (5b899d)

  9. Let me see if I have the gist of this….

    Guy breaks into MIT, hooks unauthorized computer to the network and downloads millions of articles that are not for release to the general public.

    Now somehow this makes him a hero? You can argue the pros and cons of if the articles should have already been public, but anyway you slice it, this guy broke a bunch of different laws. Just saying the articles should have already been “free” is not a defense.

    BobbaFet (8aee6d)

  10. Orin Kerr opines that the charges against Swartz were legitimate, assuming the truth of the factual allegations in the indictment. He promises a future post on the justice of the plea offer — but if he agrees with the charges, my guess is that he won’t see a 6-8 month offer as overbearing

    As for usage of the word opines to minimize Orin Kerr post:

    From Goerge Washington University Law School Website:

    Professor Kerr’s scholarship has been cited in over 90 judicial opinions, including decisions by the United States Supreme Court and all of the regional U.S. Courts of Appeals. In a recent study, he ranked seventh among criminal law and procedure scholars in the United States for citations in academic journals.

    Additionally before you think that Orin Kerr randomly opines:

    Professor Kerr was an honors program trial attorney in the Computer Crime and Intellectual Property Section of the Criminal Division at the U.S. Department of Justice, as well as a special assistant U.S. attorney for the Eastern District of Virginia. ……, Kerr served as special counsel for Supreme Court nominations to Senator John Cornyn on the Senate Judiciary Committee. He has been a visiting professor at the University of Chicago and the University of Pennsylvania

    On the other hand Swartz’s lawyer was Lance Armstrong’s Attorney – we all know how thats turning out for Lance.

    EPWJ (c5f1fc)

  11. Aaron Swartz had several dozen different ways to accomplish legally what he tried to do illegally.

    It is stunning and a crying shame that many here are going to extreme lengths to minimize the critics, demonize the government, and to deify the man who at least caused one of the most massive document thefts in world history.

    And to insinuate that the government somehow caused Aaron’s death by not letting him steal at will, wherever and whenever Mr. Swartz decided by himself that the people had the rights not the owners.

    Wonderful

    EPWJ (c5f1fc)

  12. Again, as a non-lawyer, my experience with students his age is that they view actions like Swartz’s as some kind of ritualized civil rights protest for their generation. It’s a rite of passage, and surely the lawmakers will view this as a symbolic gesture, which is what he intended!

    Sadly, no. They don’t. They are dead serious.

    The youth are not being taught that many early protestors paid with their lives or with prison. It’s a (leftist) lie and a shame.

    Patricia (be0117)

  13. Greetings:

    Too bad his lawyer didn’t ask for an “Occupy Wall Street” or “David Gregory” get out of jail free card.

    Not one of Holder’s people, no doubt.

    11B40 (ef2393)

  14. the government’s role in this tragedy is nothing short of demonic I think

    happyfeet (4bf7c2)

  15. It is stunning and a crying shame that many here are going to extreme lengths to minimize the critics, demonize the government, and to deify the man who at least caused one of the most massive document thefts in world history.

    And to insinuate that the government somehow caused Aaron’s death by not letting him steal at will, wherever and whenever Mr. Swartz decided by himself that the people had the rights not the owners.

    This is breath-taking in its mendoucheity.

    JD (840c05)

  16. I don’t agree that Swartz should be free to take academic works just because he believes they should be widely available. Society should be able to criminalize his conduct as theft and punish him for it, even as a felony. These laws don’t prevent Swartz from otherwise lawfully objecting to MIT’s or JSTOR’s rules, nor do they prevent him from knowingly choosing to engage in this conduct — something I suspect he mistakenly viewed as laudable civil disobedience rather than criminal conduct — but he should be willing to face the consequences.

    Thus, what concerns me about this story is not prosecutorial overreach in charging or negotiating. Swartz may not have had the mental or emotional stability to face the consequences of his actions, but that isn’t the government’s fault. What concerns me is the government’s late disclosure of the Pickett email. It sounds like the prosecution may have used the discovery process to bolster its opposition to Swartz’s evidentiary arguments. If so, that kind of overreach hurts litigants but it also hurts the system and society.

    DRJ (a83b8b)

  17. How much time did the CIA agent, who leaked the names of three of his colleagues get, again?

    narciso (3fec35)

  18. These disagreements aside, it’s a shame that he decided to take his own life

    And it is a shame that he could be so brilliant in some regards and yet so dumb that he didn’t think his actions were going to get him in trouble.

    steve (369bc6)

  19. 2 1/2 years is the answer, you give the names of undercover operatives, to attorneys for terrorists, and the Times, and you get 1/3 the time, Swartz was offered.

    narciso (3fec35)

  20. The documents, each and every one of them, were freely available for download to anyone on the MIT campus. Anyone. Not students. Anyone. Not faculty. Anyone. Not staff. Anyone. Visitors. Passers-by. Anyone. Now whether they should have been … but they were. MIT bragged about their open access.

    They had not seriously considered the idea that someone would freely download all of them. (I’m sure the idea had come up, and it had been dismissed.) That a hacker would persist was impossible, and so it became a crime.

    htom (412a17)

  21. Aaron Swartz was not well mentally and had not been for years. When he was 19 or 20 (he was 26 when he died) he wrote the following, according to an article in the Herald Tribune. His own words suggest that the condition was not new to him even six years ago.

    Swartz apparently struggled at times with depression, writing in a 2007 blog post: “Surely there have been times when you’ve been sad. Perhaps a loved one has abandoned you or a plan has gone horribly awry. … You feel worthless. … depressed mood is like that, only it doesn’t come for any reason and it doesn’t go for any either.”

    People who suffer under the weight of chronic depression (like Aaron) often do not make good decisions. In the end, being “brilliant” or “a prodigy” or wealthy can’t trump the dark effects of depression on thought processes and lives. In his case this disease may well have included his not understanding consequences of some/many of his past actions, and/or his failure to see reality in terms of assessing his more current options. However and whatever he did to himself or what was done to him (fairly or unfairly) by law enforcement, what we have is a sad, sick man who killed himself trying to make his pain go away.

    I lost a valued and much loved employee to depression related suicide several years ago. Only after she was gone and her family found her hidden journals (some of which they shared with me) did any of us realize how impaired this employee had been and how she had struggled just to get out of bed every day. I am cross posting this on the other Aaron thread as well because I hope all the people choosing to opine on this case will take it into consideration and maybe tone it down a notch.

    elissa (98cee2)

  22. The lawyer didn’t tell me what time they had offered in the deal. That came out in the WSJ article. It was presumably less time than what he would get at trial — and the WSJ article confirms this.

    Comment by Patterico (8b3905) — 1/14/2013 @ 7:55 am

    This is odd, Patrick. As a prosecutor yourself, it seems that it would be natural for you to ask what offer the Government had made in return for Swartz’s guilty plea.

    Did you ask Elliot Peters point blank? If not, why not?

    If so, what was his answer?

    CalFed (5b899d)

  23. Knowing what the deal is, is one thing. Expecting that the prosecution and judge will adhere to the deal, having been completely and throughly honest throughout … oh, they were not honest about the warrant … I can understand how he might think that “the fix was in”, and not in the David Gregory fashion. That horse had left the barn.

    htom (412a17)

  24. This is an interest post, Patrick. I commend you for your original investigation and reporting. In it, though, by far the most significant facts — which I certainly commend you for including, but am puzzled that you literally stuck it in as a parenthetical — were these:

    (Peters told me he didn’t agree; he thought the case was defensible and that even if Swartz lost, Peters didn’t think the judge would have sentenced him to custody time.)

    There were many, many bases on which Swartz lawyers could persuasively argue for a downward departure from the federal sentencing guidelines.

    Did Swartz (through his lawyer) ever propose a counteroffer in which he’d plead to one or more felonies in exchange for a prosecutorial agreement either to support, or at least not to oppose, Swartz’ arguments for a downward departure — even a suspended sentence?

    No, sir, your reporting sheds light on a process that is typically quite opaque and that even when reported, is often heavily spun. Thank you for that. But what it tells us is that Swartz’ own lawyer was telling Swartz his realistic real-world risks, while undoubtedly serious and even grim, were still farm from prohibitive.

    I have nowhere near enough information to conclude with confidence that this particular prosecutor in this particular was overreaching or being entirely unreasonable.

    If Swartz chose to believe the prosecutor’s dire predictions and threats instead of his own counsel’s considered judgment, that’s another tragic fact, but not one that makes me more sympathetic to him, and not one that makes me think that this particularly evidences any deep and broad systemic problem.

    Beldar (008c16)

  25. (The point of my question — “Did Swartz (through his lawyer) ever propose a counteroffer in which he’d plead to one or more felonies in exchange for a prosecutorial agreement either to support, or at least not to oppose, Swartz’ arguments for a downward departure — even a suspended sentence?” — is that unless Swartz at least signaled this concession on his part, this willingness to accept a felony record even without prison time, there was no way to tell whether that concession would be successful in getting prosecutors, in turn, to make a further concession of their own (on sentencing).

    This happens every damn day in cases big and small. It’s also not terribly uncommon — albeit always tragic — for people facing serious criminal charges to commit suicide. But we don’t scrap the criminal justice system because of that.

    Beldar (008c16)

  26. htom,

    It’s my understanding that MIT made its information available for free to anyone on its campus, but at that point in time it did not release the information online to the general public. If that’s true, why should MIT’s generous but still conditional release be a reason to authorize Swartz to download the material online, without any conditions?

    In other words, MIT let the public have access to information under certain conditions, and Swartz dramatically expanded those conditions. I can see how that might be a reason to argue Swartz’s ultimate punishment should be mitigated, but I don’t see how that should be a defense to charging him.

    DRJ (a83b8b)

  27. I’m betwixt and between here, because while I don’t dig prosecutorial overreach, I also don’t dig 1) technological genii who unilaterally decide that other people’s secret documents ought to be accessed by everybody and anybody, or 2) people who commit suicide.

    Don’t get me wrong, there are reasons to commit suicide. For one example, when your workplace has become engulfed in flames and you will likely burn or suffocate trying to escape alive. On the other hand, thinking you’ll have to suffer the consequences of taking what one believes is a moral stand isn’t a good reason; you should have thought about that before you decided to act. The way I see it, Swartz thought that he was going to get away with what the illegal things he was doing based on the way others had been dealt with when they had been nabbed. That’s always unwise. You never know when either the government and/or the public is going to tire of guys using their uncanny tech savvy for illegal activity and coming up roses in the end (see Mitnick, Kevin), and it seems as if perhaps on the heels of Julian Assange’s international cat-and-mouse game and faux soldier Bradley Manning’s whiny drama queening, Swartz was going to be underneath when the powers that be decided they were going to “put their foot down.”

    In short: In the words of Tony Baretta, “Don’t do the crime if you can’t do the time.”

    L.N. Smithee (9503de)

  28. In addition, MIT would have an interest as an institution of higher learning to promoting access to the information, but it also has an interest in promoting itself. Using this information as a way to bring people to MIT — either as students or the public in general — is valuable. By releasing that information online, I can see how Swartz helped society’s interests but arguably he hurt MIT’s.

    DRJ (a83b8b)

  29. Beldar,

    I generally agree with you with this exception: I am concerned if the prosecution did not timely release the Pickett email in discovery, either deliberately or because of negligence, in order to bolster its opposition to Swartz’s evidentiary argument. I agree we don’t know for sure if that occurred because we’re only hearing one side of the story, but it appears the email was turned over after the normal discovery period.

    Unfortunately, Swartz may have been a kind of eggshell defendant/litigant who would be more susceptible to depression if he felt the government was conspiring against him. That’s not the government’s fault as long as it adheres to the rules. My concern is it may not have been.

    DRJ (a83b8b)

  30. “The documents, each and every one of them, were freely available for download to anyone on the MIT campus. Anyone. Not students. Anyone. Not faculty. Anyone. Not staff. Anyone. Visitors. Passers-by. Anyone. Now whether they should have been … but they were. MIT bragged about their open access.”

    htom – Are you suggesting that MIT has no campus security and that street people and psychos can use its facilities and that they brag about the fact? Are you serious?

    Do the parents of students know about its lax standards?

    daleyrocks (bf33e9)

  31. I am not a fan of the

    ALL YOUR INTELLECTUAL PROPERTY ARE BELONG TO ME

    JUST BECUZ

    defense.

    daleyrocks (bf33e9)

  32. I’m a little leery of taking anything that Elliot Peters says about this case at face value.

    Peters has apparently gone to some lengths to create the impression that the prosecutors were insisting on a 7 to 8 year sentence, all the while concealing that there was a much lower offer of 6 to 8 months on the table.

    I’m very interested in what Peters told Patrick about the details of the government’s plea offer.

    CalFed (5b899d)

  33. Yes Your Honor, I stole that car, but the old guy hardly ever drove it, it was a beater that wasn’t worth much, I didn’t hurt it and I was eventually going to bring it back. I swear.

    daleyrocks (bf33e9)

  34. Well, Daleyrocks, ME. So let those parents be warned.

    SarahW (b2418e)

  35. Also I am at a little local college right now and have no student account, but can access JSTOR.

    If I toddle on over to the University of Richmond Library which I sometimes do, I also have access to JSTOR, like any other ordinary non-student who visits.

    SarahW (b2418e)

  36. Also they let me walk around the lake.

    SarahW (b2418e)

  37. Aaron entered a restricted networking room, attached his laptop directly to the network switch, hid the laptop under a box and then apparently aware that the networking room might be under video surveillance, hid his face behind a bicycle helmet.

    Oh, and when confronted by the police, Aaron attempted to flee.

    This is what is known in law enforcement as “consciouness of guilt”

    CalFed (5b899d)

  38. “Well, Daleyrocks, ME. So let those parents be warned.”

    SarahW – Good on you. MIT campus is pleasant to walk around as is strolling along Charles River. My alma mater now requires IDs for most buildings unless accompanying a student. Colleges I visited with and which my two oldest attended stressed safety measures for students. Some were in urban settings some were in rural. So there you are.

    daleyrocks (bf33e9)

  39. In addition, MIT would have an interest as an institution of higher learning to promoting access to the information, but it also has an interest in promoting itself. Using this information as a way to bring people to MIT — either as students or the public in general — is valuable. By releasing that information online, I can see how Swartz helped society’s interests but arguably he hurt MIT’s.

    Comment by DRJ (a83b8b) — 1/14/2013

    This a great point.

    I’m going through a college class MIT is offering for free. I’m not enrolled there and I’ve never given MIT a penny, yet I have access to a nice class. I think MIT is pretty good about sharing information, but they do want me to visit the MIT website and would justifiably not appreciate it if I copied their course and shared it elsewhere. MIT wants to build a destination for people to go for these free classes, and they probably think doing so will lead to a greater good than unorganized and open disbursement of info.

    Property rights are valuable even when it’s not about money.

    Dustin (73fead)

  40. http://ist.mit.edu/

    Htom, on MIT’s front page this littl msg

    what the heck click on the link

    EPWJ (c5f1fc)

  41. SarahW – From a 2010 survey by the Daily Beast written up in local Boston paper “Cambridge’s Harvard, MIT make top 50 campus crime list’” might cause parents of students or prospective students some concern reading the comments of htom.

    daleyrocks (bf33e9)

  42. Missed the free part

    Nine months’ Tuition and fees for 2012–2013 is $42,050. Additionally, undergraduate room and board is approximately $12,188

    EPWJ (c5f1fc)

  43. Missed the free part

    Right. MIT offers free classes.

    I’ve been spending more time learning stuff and less time getting into arguments about politics lately.

    It’s a lot of fun. I am not enrolled or admitted to MIT, but they provide interesting stuff I want to learn about.

    Naturally, the more this is used and updated, the better.

    Dustin (73fead)

  44. daleyrocks — it was (is?) considered a feature.

    L.N.Smithee — no secret documents that I’ve heard of. The documents had all been already published (or were in pre-publication public discussion status. JSTOR is an electronic distribution of public (copywrited) documents.

    Beldar — This happens every damn day in cases big and small. It’s also not terribly uncommon — albeit always tragic — for people facing serious criminal charges to commit suicide. But we don’t scrap the criminal justice system because of that.

    Perhaps we should just scrap the part where mistaken utterances become perjury, while police and prosecution mistakes or intentional deceptions are “negotiating tactics” that can never be challenged in court.

    Meanwhile, they (Carmen Oritz, Stephen Haymann, and Scott Garland) get to own the case they’ve now dismissed. Not even buried yet (tomorrow.) I wonder if big media will be hiring them … or is it hiring them back?

    htom (412a17)

  45. I’ve been spending more time learning stuff and less time getting into arguments about politics lately.

    Believe it or not me too, but when prosecutors who are just doing their jobs are accused of murder, well…..

    EPWJ (2925ff)

  46. “daleyrocks — it was (is?) considered a feature.”

    htom – WTF are you talking about? While I am sure MIT considers allowing wide access to its resources a benefit, I suggest the overblown way it is being described cannot conform to reality and perhaps a little more diligence is order on the physical open access claims.

    daleyrocks (bf33e9)

  47. This is what is known in law enforcement as “consciouness of guilt”

    CalFed – Regular exercise is commonly recommended for people suffering from depression who might otherwise fall into the Catch 22 of the disease, feeling so down they don’t want to do anything to help themselves. The fleeing might have represented Aaron’s daily cardio regimen as opposed to the consciousness of guilt.

    daleyrocks (bf33e9)

  48. daleyrocks — reality is a real thing, different than what people imagine it to be. MIT’s computer network was very open. This was considered to be a feature, fostering the exchange of information between faculty and student, and student and student, and between MIT and the world (both local and foreign.) Walk onto (or even across the street from) the campus and there was free MIT Wi-Fi. No hacking, no password, no student ID. Been there, done that.

    htom (412a17)

  49. “MIT’s computer network was very open.”

    htom – Fine. I understand on-line access and Wi-Fi. You don’t have to be physically present in a building. Why did Swartz have to physically tap in to the network through a closet if what you say is true? It makes no sense.

    daleyrocks (bf33e9)

  50. Given what he was trying to do, it could well be 100 or 1000 times faster.

    htom (412a17)

  51. There may have been some limits on how much you could download – it is not clear.

    Sammy Finkelman (d22d64)

  52. The problem with your argument, htom, is that if this was all very open and above board and did not violate MIT rules, then Swartz would not have had to gone to the length that he did to hide what he was doing.

    One of the things that Swartz was charged with was unauthorized access. Review what happened… Swartz kept trying to access the JSTOR database and JSTOR kept trying to block him. They blocked his IP address; he changed it. They blocked his MAC address; he spoofed it. They blocked access and he broke into a restricted closet and connected directly to MIT’s network.

    He went to great length to hide what he was doing…hiding the laptop in the closet, hiding his face from the video camera, fleeing when confronted by the police…all indicia of consciouness of guilt

    He obviously knew what he was doing was wrong…why would you claim that it wasn’t?

    CalFed (5b899d)

  53. Let’s discuss the CORZINE plea bargain???

    gus (694db4)

  54. Believe it or not me too, but when prosecutors who are just doing their jobs are accused of murder, well…..

    Who accused anyone of murder?

    JD (840c05)

  55. Perhaps a slight overstatement, but it has been suggested on this blog, as well as elsewhere, that the prosecutors “hounded this kid to death”

    CalFed (5b899d)

  56. It may have been wrong. It was probably a violation of some MIT regulation (although since he wasn’t a student, those might not apply.) It was not the multi-million dollar crime imagined by the prosecution that they persecuted him for.

    htom (412a17)

  57. CalFed — such claims have been made of others by criminal prosecutors. Bullying has become a crime, the consequences can be fatal, and in the public’s eyes, those prosecutors may be seen as guilty. I can understand why a prosecutor might find that highly objectionable. Goose, sauce, gander.

    htom (412a17)

  58. The problem, htom, is that your argument assumes facts not in evidence.

    That you consider the prosecutors to have bullied Swartz does not make it so

    CalFed (5b899d)

  59. Bullying, a form of assault, is in the eye of the victim. The purity of the bully’s motive is not a defense.

    htom (412a17)

  60. “The purity of the bully’s motive is not a defense.”

    htom – Nor is the “purity” of the motive of the criminal claiming he is being bullied.

    daleyrocks (bf33e9)

  61. Who accused anyone of murder?

    Comment by JD (840c05) — 1/14/2013 @ 3:13 pm

    JD, meet htom…

    CalFed (5b899d)

  62. “Bullying, a form of assault, is in the eye of the victim.”

    - htom

    Assault also hinges on the reasonableness of the purported victim’s perception.

    Leviticus (17b7a5)

  63. htom…you realize that Orin Kerr, a subject matter expert in this area of the law has looked at the charges and concluded that Swartz was not overcharged…or “bullied” in your parlance…by the prosecutors?

    You are, of course, entitled to your opinion, but I’m more persuaded by someone who is actually familiar with the law in these matters.

    CalFed (5b899d)

  64. CalFed — yes, I’ve read Kerr’s opinion. I’ve read the indictment, and I’ve read the defense witness piece. None of that reading has changed my mind from a year ago. Carmen Ortiz was determined to make an example of him. The problem of making examples is the making of martyrs, and I suspect that’s how he will be seen by some.

    I’m not sure if Lawrence Lessig’s Prosecutor as Bully has already been linked.

    It seems a trait of bullies that they are sure they’re not responsible for the things their victims do to themselves. In a way, they are right, their gloved hands are clean. Karma,like McKayla, is not impressed.

    htom (412a17)

  65. Swartz repeatedly circumvented protections established by MIT’s IT staff, and concealed his identity, but not because he knew he was doing wrong. He knew he was “breaking the rules”, but he was absolutely certain that he was right and the rules were wrong.

    The prosecutors came down on him to get him to understand, or at least admit that he had done wrong. That horrified him, because like a lot of people of his age and political background, he thought that “idealism” and “civil disobedience” are a get-out-of-jail-free card.

    Colby Cosh has a post on hunger strikes. One of his key points is that the striker has to be dead serious, and unmistakably willing to die. Otherwise, it’s just self-righteous posturing. It’s the same with other forms of civil disobedience – one must be willing to accept the legal or physical consequences.

    Swartz was so self-righteous that he couldn’t imagine anyone would actually enforce laws against him. When he learned otherwise, he collapsed.

    As to the issue of the e-mail: I agree that the Feds are being disingenuous about custody and control of the equipment. But this is exactly the sort of technicality which draws lawyers into popular contempt. It does not affect any of the actual facts in the case, nor is it a substantive abuse of the procedures.

    Rich Rostrom (553877)

  66. This is odd, Patrick. As a prosecutor yourself, it seems that it would be natural for you to ask what offer the Government had made in return for Swartz’s guilty plea.

    Did you ask Elliot Peters point blank? If not, why not?

    If so, what was his answer?

    He was on his way somewhere and didn’t have much time, and my original reason for contacting him wasn’t to ask about the plea negotiations but to discuss the motions. He mentioned some details about the plea negotiations and I wrote it down, but it didn’t occur to me in the short time I had to talk with him to ask what if any counteroffer he had made, or exactly how much prison time they were asking for.

    Patterico (8b3905)

  67. As for usage of the word opines to minimize Orin Kerr post

    Using the word “opines” minimizes his opinion??

    Patterico (8b3905)

  68. Pat,

    I just heard from some sources and now its posted on Drudge that Lance Armstrong confessed to everything.

    This person who told you this story is the same lawyer that convinced the Justice department that Lance didnt cheat.

    Eh, at this point, I’d be very skeptical, very skeptical of any more bombs thrown by this guy

    EPWJ (2925ff)

  69. Opines is sometime meant in a sarcastic tone, or to denote a lessor opinion

    Given the general tone of the two posts, it seemed to be the case especially when Kerr’s analysis rebutted the story that the lawyer told you.

    EPWJ (2925ff)

  70. Given the time frame of Kerr’s opinion and your interview with the attorney – its unfortunate that they didnt occur simultaneously.

    Given the fact that your source also braggs on his website for achieving a victory for a client who lied his envolvement in one of the largest sports scandal in world history next to the throwing of the world series, I feel you were way taken advantage of, given the tragedy about the young man and the timeframe you had to investigate it

    EPWJ (2925ff)

  71. Opines means gives one’s opinion.

    JD (b63a52)

  72. o·pine
    /ōˈpīn/
    Verb
    Hold and state as one’s opinion: ““The man is a genius,” he opined”.
    Synonyms
    think – reckon – deem – suppose – guess

    JD (b63a52)

  73. JD

    Yes but modern usage is to denote a lengthy verbose opinion which is a type of subtle minimization

    EPWJ (2925ff)

  74. Given the general tone of the two posts, it seemed to be the case especially when Kerr’s analysis rebutted the story that the lawyer told you.

    How?

    Patterico (8b3905)

  75. EPWJ sez:

    Yes but modern usage is to denote a lengthy verbose opinion which is a type of subtle minimization

    JD, did you consult one of those archaic online dictionaries again?

    Patterico (8b3905)

  76. Patterico – it was a paleo-tionary.

    JD (b63a52)

  77. eh, If I’m wrong – I apologize.

    EPWJ (2925ff)

  78. wow you and lance armstrong have a lot in common

    happyfeet (4bf7c2)

  79. While I’ve supported the prosecutors in this discussion, it nevertheless bothers me that prosecutorial discretion leaves us with extremes like the Swartz prosecution and the David Gregory prosecution. For American society to benefit from the rule of law, the public needs more predictability in legal matters like this.

    DRJ (a83b8b)

  80. DRJ

    It seems to be coming out that the prosecutors offered a much lessor sentence – I think Pat was misled by this guy

    EPWJ (2925ff)

  81. My last comment is not about plea negotiations, EPWJ, but the unpredictability of prosecutorial charging. It’s not helpful when prosecutorial decisions seem arbitrary.

    DRJ (a83b8b)

  82. Or when intentional violations of the law go unpunished because of who committed the crime, for the right reason.

    JD (b63a52)

  83. DRJ

    If you have time I suggest Orin Kerr’s piece over at Volokh.

    EPWJ (8a4ca7)

  84. All the commenters who are using the words “theft” and “stealing” should get real. Copyright infringement is not theft. No matter how many times you call it theft, it won’t change the fact that it’s not. Theft means taking someone’s property away from its owner, with the intention of permanently depriving him of its use. Copyright material is not property, and copying it does not remove anything from its “owner”, nor deprive him of its use for even a second, let alone permanently.

    Copyright is not property. The phrase “intellectual property” is a metaphor, and its pernicious use by the IP lobby as if it were literal is right out of 1984. It’s manipulating the language in order to change how people think about something, and unfortunately it’s successful, considering how many otherwise sensible commenters here are comfortable calling Swartz a thief.

    Copyright is not property. Property belongs to its owner, not by anyone’s grace but by right, and by definition it belongs to him forever. Copyright is a gift from Congress to creators, an incentive to encourage people to create new works. It’s a limited time monopoly, just like the trade monopolies governments used to grant people who had pioneered a new trade route or discovered a new country, or who had simply paid for the privilege.

    Breach of copyright is therefore not theft, and not anything like theft. It is simply an illegal act, just like breaking a law requiring you to hire union labour, or to source a certain percentage of your supplies from “minority” businesses, or to bet only with the state’s OTB, or to buy your liquor only from the state monopoly. If someone breaks those laws they risk penalties, but nobody would accuse them of theft, or get on a moral high horse about it. Everyone understands that these things are malum prohibitum — if they are malum at all — and not malum in se.

    Milhouse (15b6fd)

  85. Perhaps we should just scrap the part where mistaken utterances become perjury, while police and prosecution mistakes or intentional deceptions are “negotiating tactics” that can never be challenged in court.

    This. In fact, much more than this. So long as the police are allowed to deliberately lie to you, and routinely do so, you have every right to lie to them, and it is wicked to punish someone for doing so. Policemen are not better than other people, and don’t deserve any special privileges. I realise this would make life complicated for crime investigators, but fundamental fair play is more important. I mean, it’s not as if they automatically believe everything they’re told anyway.

    Milhouse (15b6fd)

  86. I disagree. Lying to a police officer should be a crime. You do not have to say anything to a police officer. That is enough freedom. You shouldn’t have the right to send earnest investigations on the wrong path. That’s fraud and that’s dangerous.

    That said, police shouldn’t lie unless there is something urgent at stake. The main reason for this is because they work for us and they need to do all they can to honor that and earn our respect. And in my limited experience, most police do in fact try to earn that respect.

    Dustin (73fead)

  87. Yes but modern usage is to denote a lengthy verbose opinion which is a type of subtle minimization

    Maybe on Planet EPWJ

    Milhouse (15b6fd)

  88. I actually feel sorrier for the prosecutors than anyone else. I don’t think they were trying to make Swarz hurt himself, and I don’t think Swarz should have tried to evade arrest or even ask for a plea deal if he were truly committing an act of civil disobedience.

    Alvin H. Belt (aca75a)

  89. I disagree. Lying to a police officer should be a crime. You do not have to say anything to a police officer. That is enough freedom.

    “Enough freedom”? That sounds like “why do you need a 30-round magazine?”

    You shouldn’t have the right to send earnest investigations on the wrong path. That’s fraud and that’s dangerous.

    It’s no more fraudulent than the police lying to you. Prosecutors can’t lie, and for very good reason.

    That said, police shouldn’t lie unless there is something urgent at stake.

    Then you should be able to lie to them if there’s something urgent at stake. Fair’s fair. They are not kings, and you are not a subject.

    Milhouse (15b6fd)

  90. He wasn’t engaged in civil disobedience, he was putting right what he saw as an injustice. Should those who ran the Underground Railroad, or who supported the patriots in the 1770s, have volunteered to be prosecuted?

    Milhouse (15b6fd)

  91. “Enough freedom”? That sounds like “why do you need a 30-round magazine?”

    Kinda does, I agree. I saw that response coming, but I really do think it’s enough freedom to not be obligated to inform the police if you choose not to cooperate.

    It’s no more fraudulent than the police lying to you. Prosecutors can’t lie, and for very good reason.

    Actually, if a police officer lies to me, and I am convinced of whatever they told me, I don’t think this is very likely to lead a criminal investigation in the wrong direction. The consequences of conning the police could be grave, and I do think it’s worse.

    In all cases, lying is wrong and a bad thing. I can see instances where it is justified, for example if a criminal admits fault or is fooled into providing information needed to solve a crime.

    Then you should be able to lie to them if there’s something urgent at stake.

    In my opinion, this could be justified hypothetically if the stakes were truly high. Like life or death matters. But not because a criminal wishes to escape justice, and not because someone has a problem with authority (because you do not have to tell the police anything at all, in this case).

    They are not kings, and you are not a subject.

    Maybe this is where we are diverging. This isn’t about the police officer, and it isn’t about me. We are not establishing our rank in the order of society. This is about the law and our roles as citizens and moral people. It is much worse to damage a criminal investigation than it is to fool a suspect during a questioning. It’s not the police officer I would make king. It’s the pursuit of justice I would make king.

    Dustin (73fead)

  92. Actually, if a police officer lies to me, and I am convinced of whatever they told me, I don’t think this is very likely to lead a criminal investigation in the wrong direction.

    No, but it may lead me in the wrong direction. Why are their interests more important than mine? That sounds like Gemeinnutz geht vor Eigennutz.

    In my opinion, this could be justified hypothetically if the stakes were truly high. Like life or death matters. But not because a criminal wishes to escape justice, and not because someone has a problem with authority (because you do not have to tell the police anything at all, in this case).

    How about just because you don’t want to disclose your private matters? Martha Stewart did nothing wrong, so why should she have had to tell the truth about what lawful instructions she’d given her broker? Scooter Libby did nothing wrong, so why should he have had to tell the truth (and remember the truth) about the precise moment at which he learned who Joseph Wilson’s wife was? So long as the FBI had the right to lie to them, why should they not have had the same right?

    It is much worse to damage a criminal investigation than it is to fool a suspect during a questioning. It’s not the police officer I would make king. It’s the pursuit of justice I would make king.

    But the individual does not exist to serve society, let alone the state; the state exists to serve the individual.

    Milhouse (15b6fd)

  93. DRJ, from your comment above (# 29 — 1/14/2013 @ 12:10 pm), you’ve obviously been looking more closely than I have about the specific issues that were being disputed in pretrial motions and hearings. I don’t claim to have done that at all, and I have no idea whether the prosecution did or didn’t play by the regular rules. I’m not even rejecting the possibility that the prosecution was being unreasonable.

    But in virtually every hotly contested criminal case — and our host’s independent research amply confirms that Swartz’ counsel was indeed aggressively contesting these charges — there’s going to be at least an allegation or an argument about whether the prosecution is playing by the rules. And normally, when prosecutors routinely or consistently overplay their hands, over time that blows up often enough in their faces that they change or find a new line of work.

    I don’t know that Swartz was getting a fair shake. But he wasn’t without resources, nor without reasonable grounds for cautious optimism or, at a minimum, considerable tempering of his pessimism.

    Which returns me to my base reaction — that this is a personal tragedy, one that has and ought justly have touched a great many people’s hearts. But it’s not a reason to propose sweeping changes in the criminal justice system.

    Indeed, I don’t even think it’s a terribly good data point to argue for change in the copyright or other relevant laws because Swartz’ reaction was a sad and irrational overreaction. I’ve seen — indeed, I’ve represented — clients who’ve been seriously threatened for both civil and criminal prosecution in broadly comparable (if less notorious) circumstances, and I’m generally sympathetic to those who believe the pendulum has swung way too far toward protection of legacy content-provider private interests to be in the public interest. I don’t endorse Swartz’ path of lawlessness in pursuit of his goals, but I’m not unsympathetic to those goals. Yet I’m not persuaded that responsibility for his suicide can be fairly imputed to these specific prosecutors or the government generally.

    Beldar (008c16)

  94. Why are their interests more important than mine?

    It’s not about making the police officer happy or his personal interests (except as an accidental feature). It’s about how wrong it is to sabotage a criminal investigation, which I do think is an interest of unusually high importance.

    How about just because you don’t want to disclose your private matters?

    I thought I was clear that you don’t have to, in my view.

    But the individual does not exist to serve society, let alone the state; the state exists to serve the individual.

    I am not claiming an obligation on the part of the individual to cooperate or serve. I am saying that one’s freedom stops at the point where they would be actively doing damage. In this mild way, the pursuit if justice does take on a status above our right to lie and our (non) right to not be lied to.

    Scooter Libby did nothing wrong, so why should he have had to tell the truth (and remember the truth)

    Good point. There’s point where this crap goes too far. Someone being tripped up by dizzying questions and honest inability to perfectly answer them… that’s not at all what I’m calling wrong. I’m talking about a deliberate attempt to lie.

    Dustin (73fead)

  95. Good God damn, this is all over JSTOR, an academic database which is the result of millions of unpaid hours of academic research. That’s just pathetic, in the oldest sense of the word. I’ve got articles in JSTOR, and you know how much money I’ve made from them? Exactly what you’d expect in a reputation economy: absolutely nothing. To be hounded to suicide for revealing the “underbelly” of an unsubtle scam is just terrible.

    SEK (74bb56)

  96. Scooter Libby did nothing wrong, so why should he have had to tell the truth (and remember the truth)

    Good point. There’s point where this crap goes too far. Someone being tripped up by dizzying questions and honest inability to perfectly answer them… that’s not at all what I’m calling wrong. I’m talking about a deliberate attempt to lie.

    So what if he had deliberately lied? What if he just didn’t want to reveal politically sensitive information to someone who might very well leak it, and would in any case certainly report it to an unknown number of other people who might leak it, and it might also come out in a report? Why should he not have valued his and/or the VP’s political interests at least as highly as the public’s interest, to the extent that that was at stake? Putting the public’s interest ahead of an individual’s sounds to me like Gemeinnutz geht vor Eigennutz, and it doesn’t seem right.

    Milhouse (15b6fd)

  97. So what if he had deliberately lied?

    I think there is a major and obvious moral difference between being unable to keep a story straight despite an honest effort to do so, and actively trying to deceive the police because you want to sabotage their investigation that you are not obligated to cooperate with.

    What if he just didn’t want to reveal politically sensitive information to someone who might very well leak it

    I thought I was clear that you don’t have to, in my view.

    Putting the public’s interest ahead of an individual’s

    We wrestle with the tension between individual freedom and public interest all the time. This one is an easy call.

    Dustin (73fead)

  98. “Theft means taking someone’s property away from its owner, with the intention of permanently depriving him of its use.”

    Milhouse – Complete nonsense. Do you have a citation to back up that “depriving the owner of its use” bit or did you just make that up? What category does the theft of trade secrets, proprietary formulas, designs, bioengineering material, etc. which allow competitors to copy products but does not deprive the owner of use of the original fall into, assault?

    daleyrocks (bf33e9)

  99. “He wasn’t engaged in civil disobedience, he was putting right what he saw as an injustice.”

    Milhouse – Of course, because in America people should feel free to obey only those laws they want to obey, free of consequences.

    daleyrocks (bf33e9)

  100. Why was the Secret Service involved?

    MayBee (b27ea0)

  101. Rich Rostrum,

    Regarding the last paragraph of your comment, it’s true that people often view legal technicalities with skepticism or disdain. But the alternative to a legal system based on technical rules is one based on the personality of the judge or the amorphous concept of justice.

    DRJ (a83b8b)

  102. MayBee,

    Several liberal websites suggest President Obama ordered it because he wanted to target Swartz, but I suspect it’s because the Secret Service is responsible for investigating wire and telecommunications fraud as well as emerging technology cases, which generally includes computer fraud.

    DRJ (a83b8b)

  103. Well DRJ, that falls under neither category, however after Manning, he should have realized what could come down upon him, and acted accordingly.

    narciso (3fec35)

  104. Thanks, DRJ. It seems like overkill to get them involved.

    If I suspected Obama, I’d suspect they were worried a hacker could get his college records.

    MayBee (b27ea0)

  105. Comment by Rich Rostrom (553877) — 1/14/2013 @ 6:00 pm

    I agree that the Feds are being disingenuous about custody and control of the equipment.

    One thing that has not even been speculated on here is: What was the reason for the delay in executing the search warrant?

    Were they debating whether the whole thing was worth investigating?? Or even maybe initially not interested?

    Were the technical people who would search the computers, otherwise occupied?

    But this is exactly the sort of technicality which draws lawyers into popular contempt. It does not affect any of the actual facts in the case, nor is it a substantive abuse of the procedures.

    Although if Bill Ayers could benefit from something like that…

    Sammy Finkelman (5b43a3)

  106. Comment by Beldar (008c16) — 1/14/2013 @ 9:08 pm

    But he wasn’t without resources, nor without reasonable grounds for cautious optimism or, at a minimum, considerable tempering of his pessimism.

    But he was at the stage where he would have to start asking people for money, and that was one of the things that was troubling him. (much too much, though)

    Sammy Finkelman (5b43a3)

  107. Comment by MayBee (b27ea0) — 1/15/2013 @ 5:59 am

    If I suspected Obama, I’d suspect they were worried a hacker could get his college records.

    No, I would expect it’s the copyright lobby,
    and the actual decision as to how low they could go was probably made by Eric Holder or the deputy attorney general in charge of the criminal division, Lanny A. Breuer. (But it will be a long time till we know)

    Sammy Finkelman (5b43a3)

  108. If Scooter Libby had taken the Fifth amendment, while he never would have been prosecuted, he would have had to resign, and it would have created a totally false picture of events. He did sort of leak it the identity of Jow Wilson’s wife, but that’s not the leak that became public. And he told Judith Miller bacause that was the explanation the CIA gave as to why Joe Wilson was sent on that trip to prove nothing.

    Sammy Finkelman (5b43a3)

  109. The real reason was the CIA didn’t want to backtrack on its claim that Saddam Hussein had wanted to buy uranium in Africa. So they came up with something where someone would report that it was extremely unlikely he could have bought uranium secretly from Niger. But that wasn’t the question.

    Scooter Libby, by not being forthcoming, was also protecting New York Times reporter Judith Miller with being charged with espionage, because the question as to who sent Joe Wilson had only been asked of the CIA in the first place on her instigation. But that he could have done by resigning. He needed to lie in order to keep his job, and to prevent politically damaging false conclusions from being drawn. (because his leak, was not THE leak – the one that went to Bob Novak, although, by asking the question of who sent Joe Wilson, he was responsible for circulating the information that Joe Wilson’s wife worked for the CIA more widely within the government, so indirectly he caused it.)

    Sammy Finkelman (5b43a3)

  110. Comment by DRJ (a83b8b) — 1/15/2013 @ 2:12 am

    But the alternative to a legal system based on technical rules is one based on the personality of the judge or the amorphous concept of justice.

    And what is prosecutorial discretion besides the amorphous concept of justice?

    Sammy Finkelman (5b43a3)

  111. Actually, if a police officer lies to me, and I am convinced of whatever they told me, I don’t think this is very likely to lead a criminal investigation in the wrong direction. The consequences of conning the police could be grave, and I do think it’s worse.

    In all cases, lying is wrong and a bad thing. I can see instances where it is justified, for example if a criminal admits fault or is fooled into providing information needed to solve a crime.

    Dustin, I’m curious. A police officer lies to a suspect’s mom to gain entry to a home. He admits that, but we all know the police can lie “in the pursuit of justice.” But then he claims the guy’s mom consented to a search of the home which turned up incriminating evidence.

    But the guy’s mom says she didn’t consent to the search. You’ve only got one admitted liar in the equation.

    Do you take his word over a citizen’s?

    Steve57 (fe2b65)

  112. The lie I’m talking about is claiming to have received a 911 call. And, no, this didn’t happen to me.

    Steve57 (fe2b65)

  113. “One thing that has not even been speculated on here is: What was the reason for the delay in executing the search warrant?

    Were they debating whether the whole thing was worth investigating?? Or even maybe initially not interested?

    Were the technical people who would search the computers, otherwise occupied?”

    Comment by Sammy Finkelman (5b43a3) — 1/15/2013 @ 6:23 am

    I suspect there was nothing sinister about the delay. It was probably just one of those things that happen in law enforcement…something that did not appear to be pressing being put on a back burner temporarily while more pressing matters are addressed.

    The reality is that no benefit accrued to the Government and no detriment was suffered by Swartz because of the delay.

    In light of what has come out about the actual sentence being sought by the Government (6 to 8 months) and Mr. Peter’s efforts to paint the Prosecutors as unreasonable by demanding a 7 to 8 year sentence, I think we need to ask ourselves who, really, has been “disingenuous and contrived” in this matter.

    CalFed (5b899d)

  114. Some of Swartz’s friends have accused Assistant United States Attorney Stephen Heymann of contributing to Swartz’s suicide, with his unwillingness to compromise on the prosecution of Swartz in a case involving scholarly journal articles.

    Back in 2008, another young hacker, Jonathan James, killed himself after being named a suspect in another Heymann case.

    Neo (d1c681)

  115. Elissa,
    I’m sorry for the loss of your friend and colleague who suffered with depression. You make a good point. Mr Swartz was a human being and I think was entitled to some measure of compassion because of his depression. I still think he deserves some kind of penalty for what he did (as I said earlier, community service and a ban from computers for six months is what I would have found appropriate). But he already paid plenty for whatever sins he committed.

    Dustin (73fead)

  116. But then he claims the guy’s mom consented to a search of the home which turned up incriminating evidence.

    But the guy’s mom says she didn’t consent to the search. You’ve only got one admitted liar in the equation.

    Do you take his word over a citizen’s?

    Comment by Steve57 (fe2b65) — 1/15/2013

    In that case, based only on what you’ve said, no, I wouldn’t. It’s possible that with more context I would change my mind.

    I don’t think police should run around being as crafty and devious as possible to any suspected perp, just on a hunch that they will resolve more crimes.

    In my view, for that kind of thing to be justified, they would need to be convinced (I’m not proposing a legal standard, but honestly convinced) that a serious crime (like murder or rape) had occurred and there was a serious public benefit to resorting to deception, for example when questioning an accomplice and trying to learn the location of evidence.

    The officer could then take the stand and frankly explain what he was deceptive about and why he felt it was urgent enough to justify that.

    If the officer was able to do this, and I bought it, I would still trust his testimony on other matters. If he wasn’t… if he was just ignoring the fourth amendment because he doesn’t care about our rights, then I wouldn’t trust a thing he said.

    Dustin (73fead)

  117. 113. But he already paid plenty for whatever sins he committed.

    Comment by Dustin (73fead) — 1/15/2013 @ 8:52 am

    We don’t know that. He’s before a different judge now.

    Not to speak ill of the dead, but I don’t believe it’s possible to avoid paying for your sins by committing suicide.

    Steve57 (fe2b65)

  118. Dustin — It is much worse to damage a criminal investigation than it is to fool a suspect during a questioning. It’s not the police officer I would make king. It’s the pursuit of justice I would make king.

    I submit that lying to a suspect will, in and of itself, damage both the instant investigation and every subsequent investigation that suspect (and those who learn of the suspect having been lied to) may ever be involved in. The pursuit of justice is explicitly abandoned by that tactic for a pursuit of convictions.

    We wrestle with the tension between individual freedom and public interest all the time. This one is an easy call.

    I suspect that I make that “easy call” differently than you do, and that I define public interest differently than you do.

    htom (412a17)

  119. I suspect that I make that “easy call” differently than you do, and that I define public interest differently than you do.

    The easy call is that lying to the police is a serious wrong. That the first amendment does not grant you the right to lie to investigators. Indeed, this is a very easy call.

    I did not say that police lying is always OK. Regarding police lying, I think it’s not an easy call at all and requires substantial justification.

    In fact, the circumstances I would think justify deception will be enough justification that I think many suspects and many who learned of it would understand. That’s why I said that I would want the police officer to be able to explain why he needed to do it under oath.

    Dustin (73fead)

  120. Dustin@ #113–

    I appreciate your kind words. At the same time I’m not sure I expressed myself well up at #21 if you took from it that I thought he deserved extra-legal compassion or some sort of leniency due to his condition. Rather, I was hoping to address both Aaron’s supporters and his detractors who have been commenting here with such passion.

    Let me try again. Aaron was undeniably a long term sufferer of depression. He admitted that it came and went, often for no apparent reason. His condition preceded (by years) his actions at MIT and the government’s subsequent prosecution of the case. Therefore I was hoping to make the point that, rather than him being “evil” or “stupid” or crass, or unwilling to “do the time” as some commenters suggested– that instead we might want to acknowledge that he was impaired and therefore probably lacked to an extent the reasoning skills to always know what he was getting himself into or fully appreciate what the repercussions of his actions could be. Just because he was cunning and persistent does not necessarily mean he himself was consciously expressing consciousness of guilt as some have suggested–even as he was guilty of breaking the law. He made it easy to get caught, did he not? I also think his depression condition made it hard if not impossible for him to weigh the government’s case against him rationally. It appears some of his reactions to negotiations over the case were bizarre. But in a depressive state he may well have seen only doom, may not have listened to/heard his attorneys’ or friends’ recommendations, and he very likely hid from them the true state of his inner turmoil. (This was why I mentioned my colleague.)

    My bottom line is always that we are a nation of laws. If the evidence was clear that he broke the law, if the government’s case was clean and fair and consistent (even if partly political), then absolutely Aaron needed to be prosecuted and he needed to respond accordingly. I just would like commenters who firmly stand by Aaron and his hacker actions to possibly try to view the DOJ as less evil than they are increasingly being portrayed. (As DRJ has written, the government is not responsible for Swartz’ mental condition.) At the same time I’d also ask those commenters who firmly and unequivocably stand with the government’s enforcement actions to possibly try to see Aaron, who was by all accounts a sick puppy, as less evil and hostile and overtly criminal than he is being portrayed.

    elissa (98cee2)

  121. I’m not sure I expressed myself well up at #21 if you took from it that I thought he deserved extra-legal compassion or some sort of leniency due to his condition

    The way my comment immediately moves from compassion to talking about how I think he still should face justice was sloppy. I didn’t intend the latter to suggest you thought otherwise.

    I took your comment to mean that we should simply have some sympathy for people and hesitate to judge him with too much fury.

    But I appreciate you elaborating on how depression can affect judgment. That’s interesting to think about.

    Dustin (73fead)

  122. I don’t think police should run around being as crafty and devious as possible to any suspected perp, just on a hunch that they will resolve more crimes

    3 weeks in law enforcement might just change your mind

    EPWJ (8a4ca7)

  123. Let’s try again.
    The easy call is that lying to the police is a serious wrong. That the first amendment does not grant you the right to lie to investigators. Indeed, this is a very easy call.

    I did not say that police lying is always OK. Regarding police lying, I think it’s not an easy call at all and requires substantial justification.

    Lying to the police or prosecutors by a suspect is always a crime. Lying by the police or prosecutors to a suspect is never a crime.

    Lying by the police to the court … seems to be rarely detected.

    The truth (a) uttered by the witness vs the truth (b) uttered by the LEO, which to believe? There was a time (a long time, over a half-century) when my default was to believe the police. Then I discovered that my default setting was in error.

    We wrestle with the tension between individual freedom and public interest all the time. This one is an easy call.

    I make the call towards individual freedom. You make the call towards public interest. My problem with that is that the State’s interest is not necessarily the public interest, and indeed, may be antithetical to it.

    htom (412a17)

  124. “Theft means taking someone’s property away from its owner, with the intention of permanently depriving him of its use.”

    Milhouse – Complete nonsense. Do you have a citation to back up that “depriving the owner of its use” bit or did you just make that up?

    No, it’s one of the elements of larceny. I’m genuinely astounded that you didn’t know this.

    What category does the theft of trade secrets, proprietary formulas, designs, bioengineering material, etc. which allow competitors to copy products but does not deprive the owner of use of the original fall into, assault?

    These are not theft. They’re not crimes at all, unless the local legislature has decided to make them so. As far as I know, in most jurisdictions it’s perfectly legal to find out someone’s trade secret, and to use it or publish it to the world. Of course finding it out is the difficulty, and it’s often impossible to do so without committing some crime; but then that’s the crime, not “theft of a trade secret”. E.g. if you break into Coca Cola’s office, blow open the safe in which they keep the secret formula, and reveal it to the world, you’ve committed several crimes. If you actually remove the paper on which the formula is recorded, and take it with the intent to keep it, then one of the crimes you’ve committed is theft; but if you merely copy it and put it back, then you are not a thief, but only a burglar, trespasser, safecracker, and probably a few more things.

    Milhouse (15b6fd)

  125. Lying to the police or prosecutors by a suspect is always a crime. Lying by the police or prosecutors to a suspect is never a crime.

    That’s correct. I was engaged in a disagreement over whether lying to the police should be a crime, which you misunderstood (probably not your fault, as that’s three times in this thread someone has misunderstood what I’m trying to say).

    I also believe that police lying to a suspect can either be justified or unjustified, and certainly the details of this should be explained to jurors when appropriate, and also suspects when appropriate. Should it be a crime for police to lie? Probably under certain circumstances it should be a section 1983 issue.

    I make the call towards individual freedom. You make the call towards public interest.

    I’m trying to balance to two reasonably.

    My problem with that is that the State’s interest is not necessarily the public interest, and indeed, may be antithetical to it.

    You’re right. Especially when the trust people like me place in police is unfounded (to the level where I am hoping their use of deception is justified by emergencies, when the truth is probably that it’s often used because it’s just a lot easier). I still have a certain amount of faith for folks in law enforcement because the few times I’ve interacted with them I’ve been pleased. The truth is this is a very limited sample, and I do think your skepticism and focus on liberty is a good point of view to have.

    Dustin (73fead)

  126. The easy call is that lying to the police is a serious wrong. That the first amendment does not grant you the right to lie to investigators. Indeed, this is a very easy call.

    The first amendment (at least according to current doctrine) doesn’t protect any lies at all.

    Milhouse (15b6fd)

  127. Lying by the police or prosecutors to a suspect is never a crime.

    As far as I know lying by prosecutors is against their professional rules and can get them disbarred, and therefore they take care not to lie themselves, and when they want a lie told to a suspect they get the police to tell it.

    Milhouse (15b6fd)

  128. I also believe that police lying to a suspect can either be justified or unjustified, and certainly the details of this should be explained to jurors when appropriate, and also suspects when appropriate. Should it be a crime for police to lie? Probably under certain circumstances it should be a section 1983 issue.

    Lying to the police can be justified or not, too; sometimes it should be a crime, sometimes not.

    Discovery of police or prosecution lying to the suspect, justified or not, should be cause for a new trial if there has been a conviction (and the suspect’s defense, of his choice, in that trial to be paid for entirely by the State — and a cause of action to have the successful defense paid for by the State.

    Lie, telling me my wife’s been having an affair? That DNA testing shows my children are not mine?

    htom (412a17)

  129. In Minnesota it’s called “an acceptable bargaining tactic”. Or so I’m told … granted, by a prosecutor.

    htom (412a17)

  130. 120. Lying by the police to the court … seems to be rarely detected.

    Comment by htom (412a17) — 1/15/2013 @ 12:13 pm

    Rarely. But it does happen.

    Judge says Dallas officers lied about Red Bird-area drug bust

    Two Dallas police officers are under criminal investigation after a judge determined that they repeatedly lied in sworn testimony about a December 2011 drug arrest at a Red Bird-area apartment complex.

    Calling the officers’ testimony “largely perjurious,” Dallas County District Judge Carl Ginsberg concluded in a scathing ruling that Officers Jon Llewellyn and Randolph Dillon detained Melvin Williams without probable cause, violated his constitutional rights and lied about where they found the money and some of the drugs.

    …“The court does not consider the testimony of Officers Jon Llewellyn and Randolph Dillon to be credible,”

    This is why I can’t agree to the notion that cops should be permitted to lie under some circumstances. It becomes too easy to lie under other circumstances. The above is a classic example, as the Mollen Commission found in its investigation of NYPD corruption in the early 90s. If officers can lie to get a confession, they often develop an attitude it’s OK to lie to get a conviction. As the Mollen report found, it’s so common the police coined the term “testilying” for the practice.

    The problem is that many police officer’s don’t think it’s perjury to even lying (so they came up with new name for it) to falsify the basis for an arrest or search if they believe the suspect is actually guilty. And of course if they falsify the paper trail then they have to stick by their story even under oath.

    As I said, what these two Dallas cops did is a classic example; they lied to cover up the unlawful arrest and search. Even “honest” cops don’t see much wrong with that. They think they’re serving justice by putting a bad guy away, and this dude was no angel, even if some of the steps they took along the way weren’t exactly in compliance with the Constitution.

    But who knows if these two were otherwise “honest.” Sometimes the motive for lying is to cover up a crime of their own. Who knows if these two vouchered all the drugs they found on the guy? Ripping off drug dealers is a standard crime committed by crooked cops. They report some of the drugs or cash they took off the suspect, and keep the rest. If the suspect feels like filing a complaint, and most don’t, then he’s got the problem of getting a jury or a judge to believe him over the cops.

    Steve57 (fe2b65)

  131. I have decided to judge them by the standard they use to judge us: false or unbelievable in any part, false in all.

    htom (412a17)

  132. And as for taking things at face value, an interesting charge from someone who falsely equates criticizing an overbearing prosecution as “contempt for copyright laws” and who tries to imply that we are claiming that Swartz’ conduct was non-criminal.

    SPQR (768505)

  133. Comment by Milhouse (15b6fd) — 1/15/2013 @ 3:36 pm

    There is a rather famous case of a prosecutor, trying to find out where a kidnap victim was if memory serves, lying to a suspect about being a public defender. Disbarred.

    SPQR (768505)

  134. 100 DRJ:

    Rich Rostrum,

    My name is Rostrom, blast it! That’s my sore toe – don’t step on it.

    Regarding the last paragraph of your comment, it’s true that people often view legal technicalities with skepticism or disdain. But the alternative to a legal system based on technical rules is one based on the personality of the judge or the amorphous concept of justice.

    True. But the rest of the world gets by without the Exclusionary Rule. This particular technicality doesn’t seem to do very much to increase justice, while producing many blatant examples of injustice.

    Rich Rostrom (553877)

  135. I don’t think anyone really knows how widespread testilying is, but cases like these sure create the perception it’s universal:

    Suit claims Utah trooper faked DUI arrests

    According to the report, Steed had been a rising star within the UHP – she was even named trooper of the year in 2007. But she was fired in November amidst allegations of wrongdoing, though she is currently appealing her termination. Greg Skordas, Steed’s lawyer, said the allegations were overblown, arguing that most of her arrests had stood up in court. Even so, Davis County attorney Troy Rawlings has said he will dismiss any case where Steed was the primary investigator or witness. Three years ago, a Highway Patrol sergeant reviewed 20 of Steed’s marijuana-impairment arrests and found that the drivers had no traces of the drugs in their system.

    8 Officers Charged With Gun Trafficking in U.S. Corruption Case

    And the arrests come at a difficult time for a department already besieged by corruption allegations large and small, including a case in which 16 officers are expected to face charges in the coming days in a ticket-fixing scandal in the Bronx. In recent weeks, testimony at the trial of narcotics detective has featured accusations that he and his colleagues in Brooklyn and Queens planted drugs or lied under oath to meet arrest quotas and earn overtime, leading to the arrests of eight officers, the dismissal of hundreds of drug cases because of their destroyed credibility and the payout of more than $1 million in taxpayer funds to settle false arrest lawsuits.

    Officer Charged With Lying About Man’s Arrest

    The homeowner was accused of trying to run over a police officer in the driveway outside his house. He was charged with felony reckless endangerment and spent three nights in jail.

    The homeowner said that the police officer made the whole thing up and that he had video to prove it.

    On Thursday, the Brooklyn district attorney’s office announced that a grand jury had sided with the homeowner, indicting the police officer, Diego A. Palacios, on five kinds of illegal lying, one of them a felony.

    Officer Lied About DUI Arrest: Moriarty

    A local politician and his attorney have released the police dash-cam video that they say contradicts the claims of the officer who arrested New Jersey Assemblyman Paul Moriarty and then charged him with driving under the influence.

    …Moriarty maintains his innocence and claims Dibuonaventura specifically targeted him. Moriarty used to be mayor of Washington Twp. and right after his arrest, he issued a statement saying the officer was previously fired from the force and then reinstated by a court order. Requests for those official police records have been denied because of an ongoing investigation.

    …Former New Jersey State Police Lieutenant Frank Rogers also attended the conference and backed up Moriarty’s claims.

    “Based upon my training experience, it’s clearly a false police report,” said Rogers.


    “What you’re going to see on this tape is Mr. Moriarty at all times traveling lawfully and not committing any traffic violations whatsoever in the right hand lane of Black Horse Pike in Washington Township. He then goes into a jughandle, goes across and puts his left hand turn signal on. There’s plenty of distance between him and the officer behind him. He makes a left hand turn, goes in, the officer activates his overhead lights and says that he cut him off. What the report is going to demonstrate is that later the officer had the chance to see the video which shows that there is no traffic violation. He tells his superior it’s a shame that the video didn’t go back further because the time that’s on there doesn’t capture any violation. To which his superior says, ‘oh do you want more? We can get that for you.’ At which time there’s a noticeable silence and the officer then knows that he has to make up a different story…

    The only person seen on this video committing traffic violations is the police officer. He leaves the median strip going at speeds approaching 80 miles per hour in a 45 miles per hour zone, going through red lights without his overhead lights on.”

    Naturally I don’t know the truth of these cases. Although I’d say there must be something to the allegations if a grand jury indicted the New York cop. And certainly if that Utah trooper was fired here department must believe there’s something to the allegations, as well as the prosecutor who refuses to try any cases with her as the main witness or investigator.

    It would seem the the Utah Highway Patrol must have suspected her of wrongdoing if they decided to audit her. Why they didn’t fire her 3 years ago when they found she had arrested 20 people for marijuana impairment who had in fact no marijuana in their system I don’t understand.

    It’s interesting that she was the Trooper of the Year in 2007. She was clearly fabricating these charges because she wanted to make the kind of “production” that would advance her career. A lot of dishonest cops are “rising stars” like Steed.

    It makes great cover. When people file complaints people tend to disbelieve the allegations when they’re against a stellar performer.

    Frankly, I hope she does serious time. She tried to ruin dozens of people’s lives, and all so she could rack up the kind of arrest numbers that would get her noticed.

    The Mollen Commission found that many of the police officers who they discovered were testilying or were otherwise corrupt had great work records as well as commendations. Which is why the news reports they end up starring in always has blurb about how great an officer the guy or gal is, with excellent performance reviews and various awards.

    Most crooked cops didn’t start their careers that way. They started by committing relatively minor transgressions. Like falsifying official documents or committing perjury under oath to put individuals they know are guilty away when the truth doesn’t serve that purpose. But then they start committing larger transgressions.

    Which is why I’m not in favor of permitting police officers to lie under any circumstances. The little “white lies” they start with, with a police culture that tacitly (and sometimes not just tacitly) encourages that “win at all costs” mentality, can and do become bigger.

    Steve57 (fe2b65)

  136. “As far as I know, in most jurisdictions it’s perfectly legal to find out someone’s trade secret, and to use it or publish it to the world. Of course finding it out is the difficulty, and it’s often impossible to do so without committing some crime; but then that’s the crime, not “theft of a trade secret”.”

    Milhouse – Glad that you admit that stealing proprietary information which does not belong to you is actually a crime which does not necessarily deprive the original owner of its use but as usual you do not have the testicular fortitude to admit that your original definition was wrong and not encompassing. Theft of customer lists, computer code, formulas, etc. is a frequent subject of litigation and or criminal charges without having to confuse the issue as you attempted to do by childishly adding breaking and entering, burglary and safecracking to the scenario. I’m surprised you don’t know what to call such offenses.

    daleyrocks (bf33e9)

  137. “And as for taking things at face value, an interesting charge from someone who falsely equates criticizing an overbearing prosecution as “contempt for copyright laws” and who tries to imply that we are claiming that Swartz’ conduct was non-criminal.”
    Comment by SPQR (768505) — 1/15/2013 @ 6:41 pm

    SPQR, I’ll leave it to the jury to decide whether your comments could be fairly interpreted as showing contempt for the copyright laws” and implying that Swartz’s conduct was not or should not be criminal.

    “CalFed, how is the downloading of academic articles without permission even a crime, much less a felony?”
    Comment by SPQR (768505) — 1/13/2013 @ 5:33 pm


    “OOooo, copyrighted. That’s such a big deal … “


    Comment by SPQR (768505) — 1/13/2013 @ 7:08 pm

    CalFed (5b899d)

  138. 132. True. But the rest of the world gets by without the Exclusionary Rule. This particular technicality doesn’t seem to do very much to increase justice, while producing many blatant examples of injustice.

    Comment by Rich Rostrom (553877) — 1/15/2013 @ 6:54 pm

    Yes, but some of those places have rules of there own to prevent police from getting away with testilying. For instance in France if the police are to conduct a search of a home they must bring along a citizen as a witness.

    France doesn’t have an exclusionary rule, but clearly they have some laws concerning unlawful searches and the resulting evidence. Otherwise what’s the point of a neutral observer coming along to witness the execution of the search? And I believe in France, and other countries as well, the trial judge can throw out evidence on his own authority if the judge finds the evidence was acquired by illegal means.

    Steve57 (fe2b65)

  139. “No, it’s one of the elements of larceny. I’m genuinely astounded that you didn’t know this.”

    Milhouse – Gee, that’s very nice, but you were defining theft, not larceny and since you took the trouble to look, you are well aware the two words are not interchangeable and in fact theft is a much broader legal concept to which virtual all states but Massachusetts have moved during the 20th century. Comments like the above are what make such a pathetic small pedant who lives in a bubble. Why would I concern myself with outdated law rather than the real world?

    daleyrocks (bf33e9)

  140. make YOU such a pathetic…………

    daleyrocks (bf33e9)

  141. I don’t think anyone really knows how widespread testilying is, but cases like these sure create the perception it’s universal:

    Universal enough that in Australia they call it “verballing”.

    Milhouse (15b6fd)

  142. Interesting discussion all around, y’all.

    To the rulers of the state then, if to any, it belongs of right to use falsehood to deceive either enemies or their own citizens for the good of the state: and no one else may meddle with this privilege.
    —Plato

    And ye shall know the truth, and the truth shall make you free.
    -John 8:32

    Dustin (73fead)

  143. Milhouse – Glad that you admit that stealing proprietary information which does not belong to you is actually a crime which does not necessarily deprive the original owner of its use but as usual you do not have the testicular fortitude to admit that your original definition was wrong and not encompassing.

    I admitted no such thing. The common law definition of larceny is as I gave it, and any lawyer — or any literate person — will tell you as much. That’s why they had to make special laws against joyriding. I can’t believe you don’t know this; it isn’t some sort of secret or esoteric knowledge. Next you’ll be claiming that reasonable reliance is not an element of fraud, or that apprehension is not an element of assault.

    Copying a trade secret is not a crime at all (unless you happen to live in a place where the local legislature has decided to make it one). As I wrote in the very comment you claimed was some sort of “admission”, the only crimes involved in “stealing” trade secrets are those you might have to commit in order to find the secret; but those things would be just as criminal if you did them for some other purpose. If you manage to find out a trade secret without committing any crime in doing so, then you are perfectly free to “steal” it and do whatever you like with it. For instance if you analyze Coca Cola and figure out the secret formula, or if you overheard someone talking about it in a place where you had the right to be, or if you developed telepathy and read someone’s mind, you may publish it to the world, or you may go into business in competition with it, or probably even to ask the company to pay you to sign a nondisclosure agreement. (I’m not sure about that last one; blackmail is a very peculiar crime.)

    Milhouse (15b6fd)

  144. Theft of customer lists, computer code, formulas, etc. is a frequent subject of litigation and or criminal charges

    Only when the accused had a duty not to copy them, perhaps because they’d signed an NDA, or because they had a fiduciary duty to the accuser.

    Milhouse (15b6fd)

  145. Milhouse – Gee, that’s very nice, but you were defining theft, not larceny and since you took the trouble to look, you are well aware the two words are not interchangeable

    They certainly are. Theft is just the common term, while larceny is the legal term.

    Milhouse (15b6fd)

  146. The exclusionary rule could be done away with if there were some way of guaranteeing that criminal charges would be brought against cops who conducted illegal searches. I’d even propose an exception if the search was successful; if you’re really sure you’ll find evidence of a crime in someone’s house go ahead and search it, but if you don’t find the evidence you go to prison. That would be a change from the current perverse system, where if the cop found something the criminal goes free and the cop might well be disciplined, while if he didn’t find anything the entire affair is forgotten and nothing happens to anybody.

    The only problem I see with my proposal is how do you find out about illegal searches that don’t find anything? I think if you were to analyze the reported data on illegal searches you would find that they’re almost universally successful in finding evidence of a crime. I think that, because if someone did an illegal search and didn’t find (or plant) anything, how would there be a record of it in the first place? The cop would have no reason to volunteer the information.

    Milhouse (15b6fd)

  147. Irrelevant, CalFed. That’s a statute that a particular legislature happened to make; it creates a crime where none existed before, and only in that legislature’s jurisdiction. Before they made the law it wasn’t a crime, and if they repeal it it won’t be a crime. Theft is a crime everywhere; it was a crime before legislatures were invented, and will be one after they disappear. And this law does not alter the definition of theft in any way; it just criminalises something else. Chopping down a tree in a forest where spotted owls have been spotted is a crime, but it isn’t theft, and it isn’t wrong.

    Milhouse (15b6fd)

  148. Theft of customer lists, computer code, formulas, etc. is a frequent subject of litigation and or criminal charges

    Only when the accused had a duty not to copy them, perhaps because they’d signed an NDA, or because they had a fiduciary duty to the accuser.

    Comment by Milhouse (15b6fd) — 1/15/2013 @ 10:09 pm

    Milhouse…I think you are wrong about that

    CalFed (5b899d)

  149. As I said the very first time trade secrets came up, “These are not theft. They’re not crimes at all, unless the local legislature has decided to make them so.” Legislatures can criminalise anything they take it into their little pointy heads to; they can make growing strawberries a felony if they like. There’s no way to guarantee that no legislature anywhere hasn’t done so. But it’s not theft, it’s not a crime under the common law, and it’s not wrong.

    Milhouse (15b6fd)

  150. Ahhh…so you want to have a philosophical discussion, not a legal one.

    Fair enough.

    CalFed (5b899d)

  151. I also want to have a discussion in which people are honest, and use terms honestly. Referring to breach of copyright as theft, and to copyright breakers as theives, is dishonest, pernicious, slanderous, and makes any honest discussion impossible. It’s a perversion of the language, deliberately done for the purpose of manipulating how people think, and thus preemptively winning the debate. It’s straight out of 1984. The moment anyone whips up outrage at a copyright-breaker by calling them a thief, I know I am dealing with a dishonest person who doesn’t give a sh*t about truth or justice, and just wants to use the power of the state to extort money from people.

    Milhouse (15b6fd)

  152. It’s also impossible to have an honest discussion with anyone who doesn’t recognise the difference between malum in se and malum prohibitum. Daleyrocks, for instance, would have happily turned people into the Gestapo or the NKVD, because it was the law.

    Milhouse (15b6fd)

  153. 140. Interesting discussion all around, y’all.

    To the rulers of the state then, if to any, it belongs of right to use falsehood to deceive either enemies or their own citizens for the good of the state: and no one else may meddle with this privilege.
    —Plato

    And ye shall know the truth, and the truth shall make you free.
    -John 8:32

    Comment by Dustin (73fead) — 1/15/2013 @ 9:46 pm

    Interesting choice of quotes. Because the truth does make you free. Plato was not interested in making men free.

    Which is why I’m opposed to the police getting official approval or unofficial willful blindness for lying. We are supposed to be a self-governing nation (yeah, I know, I know; right!) and the jury system is part of that self-government. A trial is supposed to be a search for the truth. But that can only be the case when all witnesses including police witnesses testifies truthfully. If they don’t how can the jury, the triers of fact, render a valid verdict?

    The fact is that more and more people are convinced police officers routinely lie to gain a conviction. I know one gentlemen who didn’t believe that until he sat on a grand jury. They were presented with a stream of drug offenses. He noticed something peculiar; every single officer’s testimony was identical. All the suspects dropped their drugs in plain view of the officers creating probable cause for a warrantless search. Apparently none of the repeat offenders the officers arrested could avoid displaying their contraband to the police.

    It doesn’t help that the criminal justice system advertises the fact that officers are allowed to lie to a suspect. With that knowledge, what is a juror supposed to believe when the officer testifies before them and the story is flatly unbelievable? Or a grand juror who sees a stream of officers all with identical stories about probable cause and seizure of evidence?

    High profile perjurers then add to the impression. Probably most famous was Mark Fuhrman, who ended up pleading no contest to felony perjury. Vannatter wasn’t much better; Judge Ito commented that he had shown “reckless disregard for the truth” on a search warrant application.

    The high profile corruption cases in New York that have taken place since the Mollen commission concluded its investigation into NYPD corruption, and continuing to the present, also give people a view of the police that is not complementary. It isn’t just that officers are charged with planting evidence, lying under oath, and falsifying documents. That’s bad. But what makes it worse is when other police officers fill up the courtroom to show solidarity with the accused, and are willing to say on camera that what the accused officer did isn’t wrong and it’s just part of police work.

    Don’t get me wrong. I think OJ should have been sent to prison for murder. But when jurors are convinced the police aren’t credible then miscarriages of justice like that are going to happen. And as long as lying gets official approval in some circumstances, and a wink and a nod in others, then jurors are going to be convinced that the police aren’t credible. I recall a New York police official saying that after the Mollen report was released and corrupt officers were charged and convicted the rate of acquittals went way up.

    They think their lies serve the cause of justice, but as Fuhrman demonstrated they’re just jeopardizing their own cases. The New York cases resulted in hundreds of convictions being set aside, admitted felons set free from prison, and millions in damages. That’s a high price, and really the crime isn’t committed just against the court. The people in these jurisdictions are victimized on several levels. They have to pay for a jury trial twice. Once for the accused criminal, then again for the officer who commits perjury. Then they have to pay for the damages. And put up with all these released criminals who are set free.

    It just isn’t worth it.

    Steve57 (fe2b65)

  154. “I also want to have a discussion in which people are honest, and use terms honestly.”

    Milhouse – So would I instead of someone who shifts from a discussion of the term theft in one comment and doesn’t find his proof so shifts to a much narrower legal term in a later comment. Or someone when given several examples of thefts of intellectual property comes back in a subsequent comment with different examples such as intellectual property becoming known somehow or breaking and entering or burglary or safecracking, but virtually ignoring the original examples.

    daleyrocks (bf33e9)

  155. “Only when the accused had a duty not to copy them, perhaps because they’d signed an NDA, or because they had a fiduciary duty to the accuser.”

    Milhouse – CalFed is right that it is more instances than you mention and so what? If the property being taken by the accused does not belong to them, what do you call the act? Think hard.

    daleyrocks (bf33e9)

  156. Larceny is a synonym for theft. It’s the fancy legal term, that’s all. Your “examples” were dishonest. There is no such thing as “intellectual property”; the term “property” is a metaphor that you are pretending is literally true.

    You asked “What category does the theft of trade secrets, proprietary formulas, designs, bioengineering material, etc. which allow competitors to copy products but does not deprive the owner of use of the original fall into”. I answered that there is no such thing. “They’re not crimes at all, unless the local legislature has decided to make them so. As far as I know, in most jurisdictions it’s perfectly legal to find out someone’s trade secret, and to use it or publish it to the world.” You then deliberately lied by falsely characterising this as some sort of admission. You are a thoroughly dishonest person and a disgrace to this blog. You’re at least as bad as EPWJ.

    Milhouse (15b6fd)

  157. “It’s also impossible to have an honest discussion with anyone who doesn’t recognise the difference between malum in se and malum prohibitum.”

    Milhouse – If you can point to anyone making the case that copyright infringement is a malum in se offense on this thread, please do so, because it is obvious you do not understand the meaning of the term.

    daleyrocks (bf33e9)

  158. Milhouse – CalFed is right that it is more instances than you mention and so what? If the property being taken by the accused does not belong to them, what do you call the act? Think hard.

    There is no property, and nothing is being taken. Breach of a NDA is a breach of contract, not theft. Breach of fiduciary duty is that, not theft. And you are a liar.

    Milhouse (15b6fd)

  159. Milhouse – If you can point to anyone making the case that copyright infringement is a malum in se offense on this thread, please do so, because it is obvious you do not understand the meaning of the term.

    You’re the one calling it theft, and whipping up outrage against those who do it.

    Milhouse (15b6fd)

  160. “As far as I know, in most jurisdictions it’s perfectly legal to find out someone’s trade secret, and to use it or publish it to the world.”

    Milhouse – The use of the word theft in my original comment was your clue. Your eliding of that word above in the process of finding out trade secrets and publishing is what makes your comment dishonest. As far as I know, state legislatures have not approved the pilfering of trade secrets, customer lists, prices, etc., as your comment would otherwise lead people to believe. If you can you can cite some legislatures which have, I would be happy to take a look.

    daleyrocks (bf33e9)

  161. “There is no property, and nothing is being taken. Breach of a NDA is a breach of contract, not theft. Breach of fiduciary duty is that, not theft. And you are a liar.”

    Milhouse – There doesn’t have be an NDA. In all the instances I cited there was intellectual property and it belonged to the business, not the accused. Take your head out of the sand. These are garden variety disputes but which can be over significant dollars.

    daleyrocks (bf33e9)

  162. “You’re the one calling it theft, and whipping up outrage against those who do it.”

    Milhouse – I’m calling it theft because it’s an accurate description. You are the one who is outraged that charges were filed.

    daleyrocks (bf33e9)

  163. malum in se. evil, a severe violation of the community standard of behavior. Murder, rape, theft, … “common law” crimes.

    malum prohibtum. unlawful because it’s prohibited by statute. parking and copyright violations.

    Even wikipedia knows the difference.

    htom (412a17)

  164. (and I’m not a lawyer, and only looked there to see if my memory of law for engineers was correct (from a half-century ago.))

    htom (412a17)

  165. Comment by CalFed (5b899d) — 1/15/2013 @ 7:43 pm

    CalFed, your comment above utterly failed to show that I had “contempt” for copyright laws. Unless you are under the utterly false impression that copyright is only enforced by criminal prosecution.

    Since Glenn Reynolds currently has a post criticizing excessive criminal enforcement of environmental laws, I’m sure you’ll say that Glenn Reynolds has contempt for the environment. Its such a useful rhetorical trick when you don’t have an argument.

    And to repeat since you can’t seem to understand, that something is in and of itself copyrighted is not impressive, your comment referenced above is copyrighted and yet obviously has no value.

    SPQR (768505)

  166. Copyright theft is very different than copyright violation. The only case I know of of copyright theft (I suppose I should say attempted copyright theft) was by an employer who tried to claim that they owned the copyright to a child’s story written by an engineer (not me) who had an “all work” clause in his employment contract. IIRC it never went to court because the company legal department (which had helped the engineer with obtaining the publishing contract) convinced management that they’d look like The Grinch.

    htom (412a17)

  167. As I said, SPQR, I’m not interested in listening to you squirm on this issue.

    You claim that I falsely implied that people on this thread have suggested that what Swartz did was “non-criminal”

    The readers can read you comment:


    CalFed, how is the downloading of academic articles without permission even a crime, much less a felony?
    Comment by SPQR (768505) — 1/13/2013 @ 5:33 pm

    and decide for themselves whether that is a fair inference.

    Likewise, you claim that I falsely suggested that people on this thread have shown “contempt for the copyright laws”.

    As I said, I’m content to let the readers decide if:


    OOooo, copyrighted. That’s such a big deal …
    Comment by SPQR (768505) — 1/13/2013 @ 7:08 pm

    can fairly be interpreted as contemptuous.

    As for what Reynolds has posted…that really doesn’t have anything to do with this issue, does it?

    CalFed (5b899d)

  168. You’ve convinced me you’ll never understand, CalFed, which is sad and dangerous for the rest of us.

    htom (412a17)

  169. I guess if I cared what you thought, htom, I’d be concerned

    CalFed (5b899d)

  170. CalFed, I’m not squirming on this issue. I’m ridiculing your ignorance and credulousness.

    SPQR (768505)

  171. SPQR, I’ll admit that you warned us in your very first comment on this matter that you were very emotional about it, so I guess that we shouldn’t be surprised that your comments are so…well…emotional

    CalFed (5b899d)

  172. CalFed, you still don’t get how ridiculous your rhetoric is. Here’s a hint: your 9:07AM comment? Its copyrighted, so you think its a “big deal” and no one else does.

    SPQR (768505)

  173. It appears the effort to reform the CFAA is going to be a bipartisan effort:

    Lawmakers slam DOJ prosecution of Swartz as ‘ridiculous, absurd’

    Clearly, if the legislators who write the law think the DOJ was out of line, then the case can be made that this kind of prosecution was never what Congress intended. If they amend the law to remove the DOJ’s discretion in these cases, then that’s because the DOJ abused that discretion.

    Steve57 (fe2b65)

  174. If they amend the law to remove the DOJ’s discretion in these cases, then that’s because the DOJ abused that discretion.

    Comment by Steve57 (fe2b65) — 1/16/2013 @ 9:45 am

    And if they don’t amend the law to remove DOJ’s discretion, does that mean that DOJ did not abuse their discretion?

    CalFed (5b899d)

  175. 178. And if they don’t amend the law to remove DOJ’s discretion, does that mean that DOJ did not abuse their discretion?

    Comment by CalFed (5b899d) — 1/16/2013 @ 10:39 am

    If Congress holds hearings, and then doesn’t revise the CFAA to limit the DOJ’s discretion, then I think it’s fair to say Congress intends for them to have such broad authority.

    Steve57 (fe2b65)

  176. To amplify, I think if Congress investigates this then the people who believe Swartz was unfairly prosecuted have a point. After all, the congresscritters are expressing their outrage at this. It doesn’t seem this was the intended result when they passed the law. But after they hold hearings they may decide that this broad discretion though not originally intended is necessary.

    It just seems to me that those arguing that Swartz was the victim of an overzealous prosecution don’t have a ridiculous point. That any Congressional action on this means there’s some merit to the argument. It may not ultimately win out, though.

    Clearly Congress wouldn’t hold hearings on this if this is how they originally expected the law to work.

    Steve57 (fe2b65)

  177. For 17 years, Nancy Gertner sat as a federal judge here in Boston. She says she was troubled by much of what she learned and saw from the bench before leaving in 2011. And she says Ortiz should not have prosecuted Swartz.

    WBUR story

    htom (412a17)

  178. “It just seems to me that those arguing that Swartz was the victim of an overzealous prosecution don’t have a ridiculous point.”
    Comment by Steve57 (fe2b65) — 1/16/2013 @ 11:46 am

    Steve, apparently the prosecutors had offered Swartz’s attorney a jail sentence of 6 to 8 months. Would you be as outraged if Swartz had just pled guilty and accepted a 6 month jail sentence?

    Be honest. Isn’t the outrage about the “overzealous prosecution” of Swartz really being fueled by his suicide and the narrative that is being pushed by some that he was “hounded to death” by the prosecutors?

    Wasn’t Swartz really being stalked, not by the prosecutors, but by his own demons?

    CalFed (5b899d)


  179. For 17 years, Nancy Gertner sat as a federal judge here in Boston. She says she was troubled by much of what she learned and saw from the bench before leaving in 2011. And she says Ortiz should not have prosecuted Swartz.
    Comment by htom (412a17) — 1/16/2013 @ 12:29 pm

    htom, when I was in Boston, Nancy Gertner was known as an ultra-liberal defense attorney who had political connections. That is how she became a Federal Judge. She was appointed by Bill Clinton after being championed by Ted Kennedy and John Kerry.

    You can’t possibly imagine how unimpressed I am by anything she says.

    Ditto with Zoe Lofgren. She is a liberal congresswomen from the Bay area with whom I share nothing. But they do say that politics makes for strange bedfellows. I suppose that might account for her sudden popularity on this forum.

    CalFed (5b899d)

  180. A defense attorney (of any sort) became a judge? Who knew!

    htom (412a17)

  181. htom, Steve57

    This is something I wrote on the other thread tro Sammy, its about zealousness, pain, and how unfiar, unfairness is

    136.Sammy,

    I was just in a lawsuit with my neighbors. It was an extensive property rights suit over the fact that if someone is away from their property from extended periods of time, can you use an easement as an excuse to claim ownership rights, hunting rights on the rest of my estate, including my lake.

    One of the parties is crying that they had to bankrupt themselves, all I sued them for was for them to stay off my land.

    Then they countersued me and my wife for 750,000 for damages in NOT being able to use my property because I and previous owners had guests over who used the lake.

    I even gave them money to build their own road so they could stay off my 1/2 mile asphalt raod instead of sending delivery trucks down it constantly rutting it out.

    I Asked them just to stay off my land, not hunt, not shoot into my lake in the direction of my main cabin and principal guest cabin and the two thousand square feet of docks, decks and outdoor recreational facilities I was in the process of building.

    Well the suit lasted over a year costing everyone tens of thousands of dollars and they lost on all counts but as we are in that stupid rule where even in the most aggregious of cases you cannot recover attorney fees.

    I had to stay here, missed Erica’s sophmore year, and now it looks like they are trying to appeal and I cant leave as Tennessee requires 30 day answers and where I am in Jakarta there is very little chance to respons – so now I am missing Erica’s Junior year.

    Think of it forced to be separated from my family for two years for a bullsh$t lawsuit – Erica is never going to be back in highschool again.

    Legal matters are tough, even civil suits, think of what Pat is going through,Aaron has gone through and now Mandy Nagy, Et al.

    Swartz’s parent mortgaging their house is not an issue to prosecutorial misconduct. Sorry if I have any real sympathy except for the loss of their son, but they seem to be losing their cause the more they blame others for people just doing their job

    Comment by EPWJ (8a4ca7) — 1/16/2013 @ 12:21 pm

    EPWJ (8a4ca7)

  182. 182. Steve, apparently the prosecutors had offered Swartz’s attorney a jail sentence of 6 to 8 months. Would you be as outraged if Swartz had just pled guilty and accepted a 6 month jail sentence?

    Be honest. Isn’t the outrage about the “overzealous prosecution” of Swartz really being fueled by his suicide and the narrative that is being pushed by some that he was “hounded to death” by the prosecutors?

    Wasn’t Swartz really being stalked, not by the prosecutors, but by his own demons?

    Comment by CalFed (5b899d) — 1/16/2013 @ 1:48 pm

    No, it’s the fact that they said they’d seek 7 to 8 years if he fought the charges in court. That’s a ridiculous amount of time for this.

    Republican House Oversight Committee Chairman Darrell Issa is no Zoe Lofgren. And he’s interested in looking into this because of the length of the sentence the prosecutors were seeking if Swartz rolled the dice in court and lost. Also the length of the maximum sentence he finds excessive.

    It’s not the suicide. I’m sure it’s not rare for a defendant in a felony case to commit suicide. That was a selfish act on Swartz’s part even if he was in a fragile mental state.

    Steve57 (fe2b65)

  183. Is there a jail sentence that was short enough that you would consider it reasonable?

    If so, what length of time?

    CalFed (5b899d)

  184. americans prize the liberty of their countrymen but very very cheaply

    it’ll bite them in the ass one day

    happyfeet (4bf7c2)


  185. “Also the length of the maximum sentence he finds excessive.”
    Comment by Steve57 (fe2b65) — 1/16/2013 @ 3:40 pm


    Steve I can not find any support for your statement. Do you have a link to support it?

    I did find this quote from him, however:

    “Issa said he didn’t have enough information to say whether the U.S. Attorney’s Office in Massachusetts overprosecuted Swartz. He said he had dispatched an investigator to gather more facts.”–Huffington Post, 1-16-2013

    CalFed (5b899d)

  186. I am not ready to join the movement more commonly seen on the left which is contemptuous of property rights. Data is property (or use the plural).

    daleyrocks (bf33e9)

  187. it’s screener time here in los angeles so that’s probably how i’ll watch les miz it’s just like watching the for reals movie except there’s an annoying crawl fairly frequently telling you not to give this movie to the chicoms or the fbi will break you face

    but the key thing is it costs me nothing

    happyfeet (4bf7c2)


  188. I am not ready to join the movement more commonly seen on the left which is contemptuous of property rights. Data is property (or use the plural).
    Comment by daleyrocks (bf33e9) — 1/16/2013 @ 4:31 pm


    Protection for copyright and intellectual property rights, in this country is as old as the Constitution.

    The founding fathers wisely included Article 1, Section 8, Clause 8, known as the “Copyright Clause”, to protect the rights that so many people are contemptuous of these days.

    CalFed (5b899d)

  189. CalFed:

    Rep. Darrell Issa investigating whether prosecutors ‘threw the book’ at Aaron Swartz

    US Representative Darrell Issa (R-CA) has said he is investigating whether prosecutors were overzealous in going after Aaron Swartz, the online activist and Reddit co-founder who committed suicide last week and was set to stand trial for copying articles from the JSTOR database. Issa told The Huffington Post that while the investigation was ongoing, overprosecution may have been a problem for Swartz and others, even if actual crimes had been committed. “If someone is genuinely guilty of something and you bring them up on charges, that’s fine,” he said. “But throw the book at them and find all kinds of charges and cobble them together so that they’ll plea to a ‘lesser included’ is a technique that I think can sometimes be inappropriately used.”

    I don’t recall where he was quoted saying the sentence the prosecutors were seeking he thought was excessive, but clearly if he thinks Swartz may have been overcharged to pressure him to agree to a plea that’s implied.

    As far as what sentence he should have received, I think the basic problem is that the feds can charge people who were authorized users of a site with felony hacking if they violate the user agreement. If an authorized user violates the terms of use agreement I believe that should be a civil matter, not criminal.

    9th Circuit narrows reach of computer fraud law

    I hate to agree with the 9th Circus Court but that’s what they ruled in April 2012 because millions of people could unwittingly become criminals.

    Kozinski said the law’s criminalization of computer activity that “exceeds authorized access” addresses how information is accessed, not how it is used.

    He said the government’s interpretation would transform the law into an “sweeping Internet-policing mandate” to criminalize any unauthorized use of information from a computer, rather than simply a statute to thwart hacking.

    Actually, they agreed with me because I thought that before they ruled. If people violate an agreement they enter into with a private company whether their employer or a website that should be construed as a breach of contract and handled accordingly.

    Steve57 (fe2b65)

  190. No, it’s the fact that they said they’d seek 7 to 8 years if he fought the charges in court. That’s a ridiculous amount of time for this.

    It’s its ridiculous, you had nothing to worry about, as prosecutors do not determine the sentence.

    And it’s common to negotiate plea bargains this way. If they say they will go for six months jail time unless he agrees to six months jail time, there is no bargain to be made.

    Dustin (73fead)

  191. *if it’s

    Dustin (73fead)


  192. I hate to agree with the 9th Circus Court but that’s what they ruled in April 2012 because millions of people could unwittingly become criminals.
    Comment by Steve57 (fe2b65) — 1/16/2013 @ 5:09 pm

    You can’t be suggesting that Swartz’s criminal activities were “unwitting”.

    He broke into a networking closet for God’s sake.

    CalFed (5b899d)

  193. The second part of Orin Kerr’s discussion of CFAA and Swartz, this time on prosecutorial discretion – where I don’t necessarily agree with all of his points but he makes them well – and more substantively his analysis on the overly broad language of the felony provisions.

    SPQR (768505)

  194. The Boston FBI office was the one that gave one of its CIs a license to murder. CalFed was that during your tenure there?

    Milhouse (15b6fd)

  195. 195. You can’t be suggesting that Swartz’s criminal activities were “unwitting”.

    He broke into a networking closet for God’s sake.

    Comment by CalFed (5b899d) — 1/16/2013 @ 7:04 pm

    Entering a networking closet isn’t a violation of the CFAA. I never referred to that. Although according to the indictment he was never charged with breaking in to anything. Two counts of wire fraud, five counts of computer fraud, five counts of unlawfully obtaining information from a protected computer, and one count of recklessly damaging a protected computer, yes.

    I was referring to using the language of the CFAA to argue, as the feds have done in several cases, that a user who violates terms of service or employment agreements commits a crime. That’s what I was objecting to.

    Orin Kerr in the article SPQR links to in #196 says it well:

    On the fourth issue, yes, the Swartz case does point to a serious problem with the Computer Fraud and Abuse Act. But that problem is not the definition of “unauthorized access,” as some people seem to believe. (That definition is a problem, but with the Nosal case from the Ninth Circuit and likely Supreme Court review in the next year or so, I think the Courts are likely to take care of it.)

    I do think the language remains a concern, as the courts might fix the problem or they might not. I linked to an article about the Nosal case in which the court rejected the DOJ’s broad interpretation of what constitutes “unauthorized use” in comment #192. There was another earlier case, US v Drew, in which Kerr was the defense attorney as he mentions arguing a motion to dismiss before Judge Wu. Here the judge also rejected the government’s broad interpretation of what constitutes “unauthorized use” or “exceeding authorized use.” The court rejected the government’s argument that violating a terms of use agreement could constitute a crime.

    Kerr goes on to touch and other another issue with the CFAA concerning the broad the language. The threshold for the felony enhancements could be triggered way too easily.

    All in all, I really don’t see anything Swartz did as rising to the level of a felony. I don’t think they could have proven wire fraud.

    the four essential elements of the crime of wire fraud are: (1) that the defendant voluntarily and intentionally devised or participated in a scheme to defraud another out of money;

    He didn’t access the system without authorization. At MIT everyone and anyone has authorization per their open access policy. He didn’t exceed his authorization; guests have access to JSTOR data. JSTOR didn’t want to pursue the case; they’ve said they suffered no loss or damage. So I don’t know how the government would prove Swartz recklessly damaged a protected computer.

    Certainly MIT and JSTOR if they worked at it might have tried to recover any loss through a civil proceeding. Swartz did deprive MIT of the use of the JSTOR database for several days, and they did have to spend time countering Swartz’s activities.

    Perhaps Massachusetts might have wanted to pursue that networking closet deal, but it doesn’t appear he actually used force to get in.

    Steve57 (4c041b)

  196. Data is property (or use the plural).

    No, it is not, and no amount of asserting it will make it so. You are a liar and that is all there is to it.

    Milhouse (15b6fd)

  197. The founding fathers wisely included Article 1, Section 8, Clause 8, known as the “Copyright Clause”, to protect the rights that so many people are contemptuous of these days.

    No, they did not, and you know it very well. The Copyright clause does not protect any rights, it authorises Congress to grant a privilege to certain people, for a limited time, as a reward and incentive. If copyright were a right, then it wouldn’t be up to Congress, and it wouldn’t be for a limited time. As it is, when Congress extended copyrights to such absurd lengths it spat in the founders’ faces, so how dare you invoke them? But the important point is that rights are not granted by Congress, and don’t expire after a few years. Copyrights are, and do. That’s because they are not rights.

    Milhouse (15b6fd)

  198. I hate to agree with the 9th Circus Court

    It’s Kozinski, so it’s OK.

    Milhouse (15b6fd)

  199. He broke into a networking closet for God’s sake.

    No, he did not. It was unlocked.

    Milhouse (15b6fd)

  200. “No, it is not, and no amount of asserting it will make it so. You are a liar and that is all there is to it.”

    Milhouse – What do you think it is, sitzpinkler? Asserting it is not property does not cause data not to be property, no matter how many times you repeat it. From the Illinois Criminal Statutes:

    (720 ILCS 5/16D‑2)(from Ch. 38, par. 16D‑2)

    (c) “Data” means a representation of information, knowledge, facts, concepts or instructions, including program documentation, which is prepared in a formalized manner and is stored or processed in or transmitted by a computer. Data shall be considered property and may be in any form including but not limited to printouts, magnetic or optical storage media, punch cards or data stored internally in the memory of the computer.

    daleyrocks (bf33e9)

  201. That’s weird, I thought I added a comment to this thread …

    SPQR (768505)

  202. No, he did not. It was unlocked.

    Comment by Milhouse (15b6fd) — 1/16/2013 @ 11:13 pm

    No, the documents filed with this case show that the networking closet was secured behind a locked door that was, unfortunately easily defeated.

    CalFed (5b899d)


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