Mercury Rising 鳯女

Politics, life, and other things that matter

More on the Aaron Swartz story

Posted by Charles II on January 31, 2013

We previously covered the tragic story of Aaron Swartz, who was hounded to his death by a prosecution that seemed malicious and disproportionate, charging him with 13 felonies for downloading publicly-accessible files from MIT’s JSTOR account–even though JSTOR refused to say Swartz had stolen data. It is increasingly evident that the prosecution was completely wrong-headed. Scott Horton:

The flaw in Ortiz’s posture has been laid bare by Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals. In United States v. Nosal, he dismissed the theory Ortiz used to go after Swartz, saying it would potentially criminalize “everyone who uses a computer in violation of computer use restrictions — which may well include everyone who uses a computer.” Kozinski was born and raised in Communist Romania, and knows a thing or two about totalitarian states — and he knows that prosecutorial overbreadth is their leitmotif. If conduct can be charged so broadly as to cover virtually everyone, then prosecutorial discretion effectively becomes a license to persecute anyone who stands in the state’s way. Radley Balko and Clive Crook have each focused on this concern about the Swartz case. I share the essence of their analyses.

The Ninth Circuit is California, whereas Boston is First Circuit. So an opinion by Kozinski isn’t binding on whoever would have tried the case in Massachusetts District Court. But Ortiz would have done well to consider what he said, which is (in my layman’s interpretation) computers aren’t somehow special. Just because you do something using a computer does not automatically convert what would otherwise be a civil wrong (tort) or infraction of institutional rules into espionage, treason, or some other arcane crime. If you take confidential information from your employer, it shouldn’t matter whether it was in a filing cabinet or on a computer. It’s wrong, but probably not a felony.

Maybe someday enough prosecutors and judges will understand computers to get this simple idea: there’s nothing special about them.

3 Responses to “More on the Aaron Swartz story”

  1. Stormcrow said

    Except this story isn’t really about computers.

    This is about a amoral, ruthless, and politically ambitious politician/psychopath, posing as a Federal prosecutor.

    I hope this deep-sixes her political career for good.

    And that’s what I hope when I’m in a charitable mood.

    In the mood I’m in right now, Vlad Tepes would run away, retching.

    • Charles II said

      That was pretty stinky about trying to seize the Motel Caswell. I would guess that any political ambitions by Ortiz died with Aaron Swartz.

      The point is that involvement of computers is used to mystify the rubes and magnify a minor crime into something major.

      The logical question to ask in the case of US vs. Nosal is what would happen if the records he stole were in a filing cabinet? If he got access to the cabinet by pretending to be someone he wasn’t, that might be fraud. If he gained access to a filing cabinet in a company in which he was not employed or in a company he was employed but not authorized to access the cabinet, it might be theft. But it would not be theft or fraud if he was authorized to access the cabinet. It would probably be a tort, with monetary damages due to the loss of profit that was caused by misuse of documents.

      So why would the penalty be vastly worse just because he used a computer?

      • “The point is that involvement of computers is used to mystify the rubes and magnify a minor crime into something major. ”

        Exactly. It’s the whole “ooh ooh but he used a COMPUTER to do it” nonsense that unfortunately works well with judges, the ranks of whom are disproportionately filled with technopeasants.

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