A rule (called prosecutorial immunity) without which it would be almost impossible for the criminal law to function. Would you prosecute Bernie Madoff knowing he could tie you up in court, personally, with millions of dollars' worth of lawyers?
Even without that rule, a tort law claim against Ortiz or Heymann would probably not succeed, absent some proof that their intent was to torment him emotionally. Lessig and bizarre bloggers like Danah Boyd seem to occasionally accuse them of that, but it all seems rather groundless.
I don't know anything about the Smith case, and I am not saying you (and Cullen) are wrong to draw the comparison and ask questions about it.
However, it is very difficult to make this kind of backseat-driver judgment. I'm not arguing that people shouldn't look into it. They should. But different cases are often treated very differently. Perhaps Smith's case would have been harder to prove to a jury. Perhaps he had better procedural objections. It doesn't just come down to how bad anyone thinks the crime is.
At least we seem to agree her office should be investigated as to how they handled the case. It's not acceptable to me that they just be allowed to slither away by issuing a press release absolving themselves. My point is his 'alleged' crime was less offensive to the public good, and a misdemeanor conviction in Aaron's case should've met the prosecutors need for a 'crime' such as this (which was nowhere near as offensive as ballot rigging). Why insist on guilty plea to 13 felony counts unless you are being a hardass &trying to build a name for yourself?
What exactly is Boyle's argument? He rehashes the now-typical hagiography. Then he seems to argue that should influence legal policy. This is wrong for two reasons. One, the hagiography is factually wrong, no matter how generously anyone uses the word "genius." Two, conclusions about prosecutorial discretion do not follow from it.
We need to distinguish between decisions made before and after Aaron's death. It is totally fair to say that Kerr's blogposts - or my attempts to remind programmers what they thought about Aaron when he was alive - lack "sympathy." But what exactly does Boyle think should have made the prosecutors sympathetic to Aaron when they brought their charges against him? His lawyers' claim that he might be psychologically unstable? His desire for attention from the geek community? His on-and-off friendship with Lessig or Doctorow? His history of writing code as a volunteer? His involvement in a sale of a company to Conde-Nast?
To use my example from another thread, let's say Brian Behlendorf gets arrested for DUI while on the way to a conference to talk about free software. Should we be sympathetic because he gave us the Apache httpd server (something a thousand times - maybe a hundred thousand times - more significant than any code Aaron ever wrote)?
By the by, I do feel like a jerk for not being more "sympathetic" to Aaron now that he is dead. But when the people around you turn your case into a political football and say the government killed you, it is fair game to try to put things into perspective.
I find your commentary on this case to be sort of astringent and challenging, but in a largely helpful way.
Regarding both what you've written and what Kerr has written, I think it's worth pointing out that "sympathy" isn't a prerequisite for discussing the legal issues involved in the Swartz case. It's annoying that everyone who writes about the CFAA needs to provide a benediction. The Swartz tragedy does not want for sympathy, emotion, or action-spurring anger. But we can always use more (respectful) critical thinking.
It's especially annoying in critiques of Kerr's writing. Kerr's goals were to answer some basic questions. Did the prosecution stretch the CFAA to make a case against Swartz where none was warranted? Was the prosecution's conduct towards Swartz unusually cruel? Is there any legitimate public policy purpose animating the CFAA and wire fraud statutes? In discussing these questions, Kerr more or less stipulates that Swartz did what prosecutors alleged he did. But that's all it is: a stipulation. "Assuming", Kerr asks, "that Swartz did all this stuff --- and it looks like he did --- let us take a clear-eyed look at whether and how any miscarriage of justice occurred."
To berate Kerr for not adequately addressing the question of Swartz's innocence is to miss the point of the two articles.
I think the most substantive part is where he quotes Alex Stamos, the expert witness who planned to testify in Swartz's defense. Stamos provides a strong rebuttal to claims that Kerr seems to take for granted, about the validity of the legal charges against Swartz.
I would very much like to see a detailed response by Kerr to Stamos' argument.
I think this would have been a very interesting trial.
If Stamos's blog post was any indication I don't think it would have been much help to Swartz.
I say this only because his points were of the form "It was so easy to get around MIT's weak security that you can hardly call it hacking", but Swartz wasn't charged with "hacking", he was charged with wire fraud, computer fraud, unauthorized access, etc., and these are not charges that go away just because it was easy to do.
His testimony would certainly have been very helpful if it came to a sentencing phase but during the trial he would have been all but confirming that Aaron did indeed get around the feeble MIT and JSTOR blocks on him, and that's much of what the prosecution would have needed to prove right there.
I don't think httpd is 1000-100,000 times more important than the things Aaron helped to accomplish (he did more than just code, btw). An open source web server was somewhat inevitable but I'm not sure rss, creative commons, reddit, or some of the other things Aaron worked on were.
You should look more closely at the history. RSS (at least, the branch of it that people use), CC, and Reddit would have exactly the same form they have today - exactly! - without Aaron's involvement.
I don't think "exactly" is the correct word here. Maybe you're off the hook because you used the word "form". Reddit might be in the same form but a fraction of its size (or gone?). Of course, we can never know.
For example: "This article was first published in 2005. After it was published, Django launched a RemovingTheMagic project to address some of my criticisms (though personally I still find it unusable), web.py inspired FriendFeed’s tornado.web and Google’s gae.webapp and others (though I still prefer web.py), and this article led to a permanent surge in Reddit traffic that still hasn’t really stopped growing."
Lessig would probably disagree with you on CC.
I left off Demand Progress so maybe we'd have SOPA in place today.
"Crime" often relies on "pre-crime." The legal definition of "burglary" is breaking into a building with an intent to steal or commit another serious crime. Prosecutors have to decide whether they think they can prove "burglary" or can only prove "trespass." The jury decides whether the prosecutor has done so beyond a reasonable doubt.
Aaron never published anything in the Stanford Law Review. The student article in the Stanford Law Review that seems to form the basis of your claim doesn't even credit Aaron.
"While at Stanford, Swartz had worked with a law student to download all the law review articles in the Westlaw database, to map funders of research with research conclusions. The result of that research was published in the Stanford Law Review, and showed a troubling connection between funders and their conclusions. At the time of Aaron's alleged "crime," he was a fellow at my Center at Harvard. The work of the Center? Studying the corruption of academic research (among other institutions) caused by money."
I saw that too and read the Standard Law Review article. He is not credited it in. He may have helped a law student write a Python script, which she then used. The article does mention that a Python script was used to collect some data.
There are many things to criticize about the universe, but the standard form language on US Attorneys' press releases is probably not the biggest thing we should be worried about. Linus, as he often does, is speaking too confidently and too hastily.
And the press releases always state the statutory maximum, which as I and many others have explained, Aaron was never actually threatened with. His lawyers knew that. He had to know it. Lessig either knew it or should have known. The only reason we're talking about "35 years" is because of Lessig's irresponsible PR.
I'm trying to think of a hacking analogy. Imagine if you write a routine for loop with an int increment and someone, trying to understand the code, asks "wait, how many times can this run?" And you respond with INT_MAX. In most situations, that would be a misleading, borderline autistic response, with no relationship to the real world in the normal case.
Hacking analogy: if you compile and run this program:
main() {
int i;
i = i++;
}
...the results are undefined. In theory (and the C FAQ has stated this for decades) the compiler can make a program that erases everything on your hard drive and then has the sound card start swearing at you.
But if you're being advised by an expert in the field, they'll tell you that in reality, the results aren't going to be anything like that.
Dr. Lessig knew it too. In fact he knew that Aaron had been offered a plea, and knew that the jail time must not have been too extensive because he knew that the reason Aaron would not take the deal is that it would involve pleading guilty to a felony.
I don't want to accuse Dr. Lessig of bad PR though, as much as using the same wording the prosecution uses (although it's no secret how Dr. Lessig feels about this case).
Bingo. I've been trying not to say petty things out of respect for recently departed people and his family, with whom I sympathize for this terrible, terrible thing.
But the radical loss of perspective here is just jarring, and the case is big enough now that it's hard to refrain from trying to put things into perspective. I am aware of the full history, having been a programmer with significant open-source and other contributions through the 90s and early 2000s. Aaron is being totally misremembered.
Of those who knew of him before his death - and he was not a "celebrity" or "famous" or considered "brilliant" or a "genius" by technologists - most knew him as a blogger. He was actually a very good writer, even from a young age. He wrote with clarity and purpose, and he had many interests. His technical output was not major. To pull a random name out of a hat, his contributions were less than someone like Craig McClanahan and far less than someone like Brian Behlendorf. Basically, Aaron got a chance with Y Combinator, which he parlayed into a merger with Reddit's parent company, mostly through personal connections. Aaron didn't get end up getting along with Alexis or Steve, who considered him immature, dramatic, and unreliable. Reddit was shortly rewritten entirely, and web.py was too buggy to make any further contribution to Reddit. Aaron was fired from Reddit's acquirer because he didn't bother doing anything after the payout. He then floated around, wrote a few minor libraries and some more interesting blog posts, and then became a very good activist worthy of deeper respect on that front. He wasn't actually a tech celebrity before his death. He didn't "invent RSS." He didn't singlehandedly "defeat SOPA." His work on RSS 1.0, a version of RSS that was never significant itself, was mostly of interest to the semantic-web people, who have themselves have never made much of an impact, although the work is interesting to some.
I didn't know Aaron personally, but I do think his volatile relationships with others and his desire to be famous within this community were a source of extreme anxiety for him, though probably more so in the past than recently. But his professional life was, perhaps understandably, extremely frustrating for reasons that had nothing to do with his criminal case.
That's not an attack. Most people don't make major technical contributions. But I wish people would see this case for what it is - a volatile activist who pulled a stunt that spiraled out of control.
I've read many of your comments and am glad you've been posting them. They're well-written and well-reasoned, and I hope you stick around in the future and continue to speak your mind with the freedom that your current format seems to be providing. The combination of legal and technical expertise is valuable and rare.
That being said, your comments seem to me to pooh-pooh the impact of what the prosecutors/system did in this case as (a) standard practice and (b) not that big a deal. Most people here (well, I anyway) did not know much about this and, having learned it, feel that it is a big deal. This makes me wonder whether your senses have been dulled by taking too much of that standard practice for granted. Maybe the people here to whom this is new and disturbing are not the only ones experiencing "radical loss of perspective".
It's straightforward to explain why Aaron's story has had such an impact on this and similar communities: he is easy for many of us to identify with, so the shock has a personal effect. This isn't hypocritical, it's human nature: one takes in this kind of information through the emotional medium of a story one can identify with. There's no contradiction between that and learning that a great many less-advantaged people get treated far more abusively still – quite the opposite.
Setting aside the obviously dumb comments as a cost of doing business on a public forum such as this, I am also pretty sure that people here are not nearly as naive about Aaron's personal history as your critique and the GP's suggest. Taste enters into this.
Taste cuts both ways though. I'm seriously concerned about how younger people in the community might respond to the hagiography. I'm afraid that some might come to believe that the CFAA isn't a real law so there's no problem with breaking it or that suicide is the best way for activists to enact real change.
I see a lot of people writing about how they change their MAC address all the time so what did Aaron do that was so wrong?
Granick writes in a well-read post about how Swartz didn't really break any laws -- everyone on MIT's network was legally entitled to download JSTOR as fast as they wanted to and apparently MIT had no right to keep anyone off its network.
There's a pervasive social norm that says 'if you can use tech to get something, then doing so is legal'; lots of people find the CFAA normatively absurd, in the same way that we might find a law against eating asparagus on sundays absurd. You see that in all the defenses that start from the premise that not only is Swartz innocent but that there's no conceivable crime he could have committed.
> apparently MIT had no right to keep anyone off its network.
What? How could some institution not have a right to keep somebody else off its own network? That makes no sense at all. Don't forget both JSTOR and MIT (after JSTOR contacted them) tried to block Swartz's massive downloads.
"This makes me wonder whether your senses have been dulled by taking too much of that standard practice for granted." Yes, that is totally fair. I have been thinking hard recently about the role of gradual change vs. radical change.
I agree about "taste" too. I'd never have said anything, but there comes a point in the popularization of a case where truth starts to be important.
It's very harsh but I find fault with some of the adults who made him a "celebrity" in the first place. Here's a link to the (yes, harsh) piece I wrote about that.
It's significant, in my view, that Swartz "came to fame" right as the first "dot com" bubble was cresting. Hype was ridiculously excessive, back then. Looking back at what his celebrity "friends" were saying about him back then, it's painfully obvious that even back then his achievements (which were quite respectable) were greatly exaggerated and that the story he was a new prodigy was a myth self-servingly spread by a few powerful people trading in on the caché of having access to him. To the young boy.
It's horrifying to me, at least, to contemplate what that roller coaster ride did to his sense of self and his own understanding of his identity.
I just read this linked article and think it is excellent and very thoughtful. It is much more human than any of Lessig or Doctorow's self-serving comments, and it fits with my recollection of the history.
I mean, people are right that all of this is separate from calls for plea-bargaining reform. I'm all for that. I'm not sure this kind of offense is the worst example of the lot, but I'm all for it. (Decades for drug possession is worse. Life imprisonment, [in facilities that are not at all, shall we say, minimum-security] for child-porn traded on IRC is probably worse, at least when it doesn't make child abuse more likely.) But it should all be reformed. That's a big task, of course, but that doesn't mean people shouldn't try.
I don't even mind if people use this case to help with that. But it's easy to grow weary of all the manipulation and distortion and hypocrisy by the people that your link discusses.
Yes, when you're young people make all sorts of hype about your minor accomplishments.
Isn't that what VC-istan and acq-hire welfare checks are for, though? To make phony celebrities then tear them down? With a few notable and impressive exceptions, that whole machine stopped doing technology some time ago. Most of these "startups" (at least in NYC, which may be a different scene) are hare-brained marketing experiments and treat engineers poorly.
Isn't that what the entirety of US pop culture is for? We lionize young people for small accomplishments constantly only to tear them down when they cannot meet our expectations from Lindsay Lohan to now Manti T'eo... It seems to be a larger problem of this celebrity driven bullcrap. Remember when Valleywag was a thing?
Since you're so blasé about plea bargaining, maybe you can help us out with this one:
Why was it necessary for Aaron to plead guilty to 13 felonies in order to get a short sentence? If it were me, I'd be more concerned by the 13 felonies than the time, and I get the impression he was too.
How does it work? Do the prosecutors get to count it as 13 kills, which buffs up their own record as badass prosecutors? Can you explain the logic that pleading guilty to _more_ felonies than would be convicted at trial should lead to a shorter sentence?
You're really just changing the subject here. The issue isn't whether or not Aaron was a superman. We're shocked and offended by the plea bargaining process (even more surprised that its commonplace, forgive our naiveté) and the draconian vagueness of the CFAA (for example, what does "unauthorized" mean?)
Nicely put. I was more aware (marginally) of his political activism and vaguely knew something of his past (I do really like his writing about web.py - and now that I'm reading it, all of his writing).
It seems to me he was driven by the need to score a coup, and move fast. To be the hero who liberated an entire database, instead of a contributor to a slower process that would have slipped past their defenses - which as I've said elsewhere, really would have gotten us something, instead of the nothing we have now.
I think that need was due to his need to recapitulate his early acclaim when he was 14. And in retrospect, that really sucks.
What I don't understand is his rush. He could have gone for stealth mode: get a few laptops, program them to download at (largish) random intervals. Leave them operating a year or two. Check up on them every once in a while.
I totally get it. I don't know how you originally got into programming, but imagine you were good at it during your early teens, like many of us, and like Aaron. Now imagine that when you met the outside world, people other than your parents were amazed at your ability - imagine you wangled your way onto a W3C committee at 14. Now imagine that by sheer blind following of the next interesting thing, and talking to the next interesting person, you wangled your way into Y Combinator and into the Reddit sale. You're damn good at programming, but it turns out that being great at writing and programming doesn't translate at all into being good at business.
When I was 14, I assumed that I was going to program computers and get rich, much like Gates or Jobs. Aaron got a hell of a lot further down that adolescent trajectory than I did - I had all kinds of intermediate small failures along the way to soften the blow when it turned out I wasn't good at business. Now, ten years later, I've learned to be better at business.
Aaron bounced off, apparently really hard. He longed for those days when - just by talking and thinking and coding - he was taken as a surprising genius by people he'd never met. He wanted to walk in and surprise people with the fait accompli, cut right to the chase of being admired.
Or so I imagine. Because I know that at his age I thought exactly that way. I even have depressive tendencies - never been bothered by suicidal ideation, but then I never failed so badly as he did after the Reddit sale, and I could certainly see that happening to me in that case.
I may very well be projecting. But essentially, when I look at this, I just think, there but for the grace of early failure and family commitments go I.
Wow I really think you are projecting! You assume his life was a failure after Reddit ("I never failed as badly as he did after the Reddit sale").
I review his life, and it appears to me he started to find his true passions after reddit, and it wasn't about making $, or finding the next big .com, but rather achieving reforms in the areas where his passion(s) took him.
Sadly his final action ends his life but doubtful it ends his legacy. Because of his fame (regardless of any controversy surrounding it), so many are now more aware of needing to step up and "demand progress".
I think the sign that the VC-istan technology world is terminally fucked is that we even have "celebrities" in the first place.
Aaron Swartz may not have been a technological heavyweight. Nor am I. Nor are 99.x percent of the people reading this. That's not so bad. What is bad is that there's so much complete nonsense in our so-called "scene" that no one seems to give a rat's ass about actual technology anymore. It's poorly understood, not rewarded, and the arena is so full of bike-shedding narcissists it's impossible not to get enraged.
Also, -1 for mentioning Brian Behlendorf. I looked him up on Wikipedia and he works for the World Economic Forum, which is more commonly known for Davos Fascism.
In the same post you complain that no one seems to give a rat's ass about actual technology anymore and then you downvote someone for bringing up Brian Behlendorf as someone who has contributed to actual technology.
In fact Brian definitely has made a lot of technical contributions to open source, and the fact that you don't like one organization that Brian Behlendorf's is associated with does not change that. Perhaps if YOU "gave a rat's ass about actual technology", you could understand respecting Brian for that EVEN THOUGH you disagree with him on other topics.
(If you really want to stretch yourself, you might consider that when the same person is important in organizations as diverse as Apache, Mozilla, Burning Man and the World Economic Forum, that perhaps the last organization has goals you are unaware of that might in critical ways differ from the actions of the world leaders who they have to engage in order to have any change of achieving their real goals. That might be a stretch for you. It doesn't fit nicely on a propaganda placard. But it is worth thinking about regardless.)
Plenty of people still care about technology, it's just that "the scene" has become big enough for celebrities to emerge. This is part and parcel of the type of individualist capitalist society that enables a place like SV to emerge in the first place. The fact that there's a lot of noise drowning out the real technologists is nothing more than validation that technology is in fact relevant.
But that's ridiculous. The only thing that made this case big news was his death.
It's worth reading over old HN threads on the criminal case. The consensus was pretty close to my position now, which is that prosecutorial discretion worked pretty well in determining the charges. That doesn't make the outcome any less sad; nor does raging at the wrong people.
> prosecutorial discretion worked pretty well in determining the charges.
The original charges or the pile of wire fraud charges added at a later time to make for good press? She used her discretion to add piles of charges on him and then claims she didn't want a long prison sentence. At the very least what she said is inconsistent.
USA requested the extradition of a young student[1] from UK over copyright laws, for sharing links. UK Home Secretary approved the order and the outrage ran the world. Without the attention the story got that young student would be in an American jail today.
Look, I guess you have no reason to believe me, but this is just not how the US government works. There's no staffer in the Administrative Office of the courts who's upset at Aaron and tells the United States Attorney for the District of Massachusetts to throw the book at him.
Even without that rule, a tort law claim against Ortiz or Heymann would probably not succeed, absent some proof that their intent was to torment him emotionally. Lessig and bizarre bloggers like Danah Boyd seem to occasionally accuse them of that, but it all seems rather groundless.