Welcome to thought-crime, folks.
1984? Yeah right, man. That's a typo. Orwell is here now. He's livin' large. We have no names, man. No names. We are nameless! ~~ Cereal Killer
There are two issues of intent here:
(1) There is the question of whether Swartz's repeated accesses of JSTOR were done knowing that access was wrong, or recklessly, or purposefully to accomplish an illegal end. This question, of "mens rea", is I think reasonably established in the charging documents by things like MAC address spoofing.
(2) There is the entirely speculative question of whether Swartz had the intention of "liberating" all of JSTOR onto BitTorrent. Nobody knows whether this is true except Swartz and possibly the DoJ. My suggestion here is only that we don't know all the evidence, and perhaps some of the severity of the DoJ's response is based on evidence they have but have not yet disclosed to the public.
The confusion here is my fault. Sorry.
I certainly don't believe that Swartz should be prosecuted for thinking JSTOR should be liberated, or that the DoJ should be building a case based on what they think he was going to do next.
The question that this hinges on is whether there is hard evidence of his intent; either there exists a clear statement from Swartz of his intention (e.g., say, a chat log from an informant where he expressed his intent, or an actual upload) and they didn't feel the need to share this info to get the indictment, or they're just trying to make up some circumstantial case (oooh, look, he had a BitTorrent client on a laptop we seized) to justify the harassment.
I would guess that it must be something very weak, ambiguous and circumstantial which is why they didn't feel the need to substantiate the claim. But then again, given the long time frame (many months) and the rashness of some of the behavior Swartz displayed, I wouldn't be at all surprised to find that someone got him to say something via electronic means that could be construed as an intent to P2P the documents.
On this point specifically I hope that, if it would be beneficial and accurate, Swartz's attorneys bring up the point that:
1. Programmers routinely work around various limitations to do their jobs.
2. Those limitations may originate in the laws of physics, limitations of current technology, or excessively strict corporate IT policies.
3. Those workarounds may include changing MAC addresses, connecting to a different switch port, etc.
4. Therefore, a programmer such as Swartz would have considered his actions in an engineering context. Overcoming any blocking or access rate limitations imposed automatically by JSTOR's systems would be seen by Swartz in the same light as bypassing a faulty router or otherwise routing around network damage, rather than as a specifically legal affront.
5. Thus, at first glance, mens rea is not present.
My point above is that if Aaron did not actually distribute the files to bittorrent, then making any relevance of his intent to do so, is "thought crime." And as you can no doubt gather, I would consider such a thing to be total bullshit. That is, bullshit vis-a-vis my personal view of a sort of universal ethics... not necessarily with with regards to US government statutes.
What's the difference between the scenario you described and forgetting to pick up a basket by the door then using your pockets to hold what you intend to buy?
There's a reason why security normally waits until the person leaves the store to nab them.
A man brings a gun to a political demonstration where a VIP with whom he violently disagrees will be arriving. He reaches the front of the crowd and as the VIP draws near, the gun slips from his pocket and he is arrested. Are you meaning to tell me he shouldn't be charged with attempted murder just because he hasn't yet pulled the gun out and engaged the trigger?
Just so you know, people have already been convicted under these circumstances, so the case law is already pretty clear.
Attempted murder is a crime with a specific definition in specific laws. It's harder to make this charge stick than murder, for obvious reasons, but police are rather more likely to arrest someone they think is attempting murder than arrest someone they think is considering shoplifting, for equally obvious reasons.
...What does any of this have to do with planning to distribute files by bittorrent? These are not useful analogies.
We are just talking here. I have absolutely no reason to believe that there is evidence that Swartz was going to liberate JSTOR. It's just, people seem to want a "why is the DoJ going so nuts about this", and I'm just saying, "here's a what-if".