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>Now, maybe you think "breaking in" to a poorly protected network should not be a crime.

No one is saying that. If he was hit with trespassing then it would be a different story. He was political target hit with the worst laws they could find that remotely applied to his case.

>The rhetoric around this unfortunate incident borders on intellectually dishonest.

The only dishonesty I'm seeing is from the aspie "law and order" types screaming "off with his head" because they can't fathom that our world is far from black and white.

>The prosecutor in this case pursued her case according to the law.

This is such a dishonest statement I'm not sure you really understand how the politics of prosecution work. Just the idea that Ortiz and Heymann had no choice but to hit Shwarz with these specific set of charges is absurd. Railroading happens, accept it. Your black and white simplistic worldview only exists in your head. Reality is messy.

> No one is saying that. If he was hit with trespassing then it would be a different story. He was political target hit with the worst laws they could find that remotely applied to his case.

He was hit with the hacking equivalent of trespassing. The point is that the fact that the network is unprotected or poorly protected doesn't make it any less "hacking" than the fact that property is unprotected or poorly protected makes it less "trespassing." What matters is whether Schwartz had permission to access the network for the kind of activity he engaged in, and he did not have such permission.

> No one is saying that. If he was hit with trespassing then it would be a different story. He was political target hit with the worst laws they could find that remotely applied to his case.

The aspies here are the techies who can't fathom why someone might characterize Schwartz's actions as "hacking into MIT's network to steal millions of scientific documents" and do so in good faith. It's aspies to not see how most people would see the situation that way, and rage at the prosecutor instead of acknowledging the larger task of changing people's views.

> Just the idea that Ortiz and Heymann had no choice but to hit Schwarz with these specific set of charges is absurd.

I didn't say she had no choice, I said her case was within the scope of the law. This is not a case where a prosecutor stretched obscure statute to railroad an innocent victim. This case was based on laws that proscribed exactly the kinds of activities the defendant undertook.

My point is that there are two very different kinds of "injustice" and people are confusing them.

In some cases, prosecutors charge defendants with completely tangentially-related laws in order to railroad them. But in this case the laws were on point. The real injustice is that the laws regarding "hacking" make no distinction between something like what Schartz did, and Russian mafia hacking into Bank of America's network.

But in this case the laws were on point.

Indeed. Perhaps it would clarify things if people who object to the Computer Fraud and Abuse Act could stand up and say "the CFAA is wrong and should be abolished; there should be no criminal penalty at all for unauthorized access to a computer system"?

> "the CFAA is wrong and should be abolished"

> "There should be no criminal penalty at all for unauthorized access to a computer system"

These are not equivalent.

Without the CFAA, what criminal penalty would there be for unauthorized access to a computer system?

At the least, there would still be criminal penalties for fraud, identity theft, misappropriation of trade secrets, blackmail, espionage, sabotage, etc.

When practically everything is a computer, having laws that specifically target computers seems unnecessary.

From what the trend has been, it looks like there are going to be 2 different lines of jurisprudence, one dealing with non digital works, actors and actions, vs one for the digital world.

It is increasingly clear that many situations online bear superficial similarity to real world analogues, and their edge cases make massive deviations from their r/l counterparts.

So laws will have to include cases for digital/computer based actions, at the very least as special cases.

If you can articulate a specific reason why e.g. "identity theft with a computer" requires different treatment than "identity theft" then we can discuss making an appropriate amendment to the laws against identity theft. But that is no excuse for the CFAA continuing to exist as written.

What I would be interested to hear is a valid argument for why "unauthorized access to a computer" (whatever that actually means) should be a felony or even a crime in cases when it doesn't occur in furtherance of any otherwise illegal act.

People talk about computers like they're property, but if you're accessing them then they're really like agents. Prohibiting "unauthorized access to a computer" isn't like prohibiting trespassing, it's like prohibiting talking to someone's agent without authorization. Which is silly. If your agent is stupid and someone convinces it to hop around on one foot or do some other such harmless thing, there is no reason for that to be illegal, you just train your agent to not do that if you don't want it to. If your agent is stupid and supplies foreign spies with copies of all your classified documents when they lie to it in the right way, anyone who does that is (or should be) guilty of espionage, and there is no utility in a separate law against "unauthorized access to an agent."

But there is great harm in prohibiting it, especially if the penalties are nontrivial, because depending on what "unauthorized" and "access" mean, we all arguably do it on a regular basis without even realizing it, and it makes us all subject to felony charges. So I'm waiting for someone to provide any good justification for why we shouldn't just repeal it.

Is it inconceivable that there's a middle ground to be found somewhere between "no criminal penalty at all" and "wildly, disproportionately harsh penalties"?

Perhaps we could call it "punishment that fits the crime"?

that property is unprotected or poorly protected makes it less "trespassing."

You know that booking someone for trespassing is pretty difficult, right? They have to be depriving you of the use of your property AND refuse to leave. So if I set up camp on your front lawn, and you ask me to leave, and I do, I was not trespassing. I don't think AS was depriving anyone of the use of their property here, was he? So the analogy does not really hold.

AS's actions caused MIT to lose access to JSTOR. And he kept on very actively circumventing measures to keep him off their network.

Do you approve of all actions throughout history performed under color of law? Your constant refrain to "Yes, these aren't terribly good laws, but they are the laws and that's enough" are so utterly unconvincing in light of this that I find it difficult to imagine your answer to the preceding question could possibly be anything other than yes, but before we proceed down that path I just thought I'd verify that assumption with you.

No honest person would call this the theft of millions of documents. This is akin to jumping the gate at a theme park and riding for free, a bunch of times. Nobody stole a rollercoaster. Harm was done but there's no need to reach for emotional terms to exaggerate it.

It'd take a lawyer to call this theft. I mean, by a word in a book it is but realistically it isn't.

For instance, I've had a forum post quoted word for word, and not as a reply. Of course I hadn't registered the copyright, but if I had I could have sued, as I would have been robbed - in your eyes. The same nothing would have happened but by virtue of a piece of paper you and yours would see it differently.

You talk about the closed mindset of hackernews but fail to see the emotionally isolated world inhabited by those who act as if morality flows from law instead of vice versa.

So again, no. I don't think an honest person would agree with that characterization of the events, at least not until a lawyer 'clarified' it for them.

You're now the third lawyer I've seen on HN in the past couple days who has come on here and defended Ortiz with an argument that essentially claims that she did nothing wrong, that procedures were followed, that it's the system that's broken and needs fixing. That getting rid of Ortiz won't fix anything ("it's not the relatively simple matter of stopping overzealous prosecution in one agency".)

Those things may all be true, but what you don't seem to understand is that calls for firing Ortiz aren't about fixing the system. That's a bigger fight, a job that will take a long time. They're about punishment. With your narrow legalistic thinking, you seem to be incapable of recognizing that people have means of discovering the truth other than legal procedures. It's almost certain that Ortiz followed the letter of the law and the rules of criminal procedure, but it doesn't matter. She threatened a man, a man many here consider a hero, with 35 years in federal prison for allegedly committing a crime that, at most, prevented MIT from accessing JSTOR for a few days. People have decided, using means not codified in statute, that she has done a terrible thing and must be punished. It doesn't matter that the system is broken.

You lawyers keep saying that punishing Ortiz will have no consequence, because someone else will take her place. Well, people don't care. This is not about deterrence. That's such a laughably small part of it. Here are some other reasons for punishment, courtesy of Nietzsche

> punishment as a way of rendering someone harmless, as a prevention from further harm

People would certainly like to see Ortiz rendered harmless.

> punishment as isolation of some upset to an even balance in order to avert a wider outbreak of the disturbance

Who knows what some of the more unbalanced Anons will do

> punishment as festival, that is, as the violation and humiliation of some enemy one has finally thrown down

Yep

So you see it's not just about deterrence. The sad part, though, is that the one thing punishment will never achieve is to make Ortiz have a guilty conscience. She and people like you will never realize that she is a bad person and should feel bad.

It should tell you something that every lawyer on HN is defending Ortiz. It's because Ortiz isn't the problem--the system, and more specifically the laws, are the problem.

Nietzsche's justifications have no relevance here. Removing Ortiz wouldn't change anything because the next US Prosecutor would simply do the same thing given the same set of facts. Prosecutors overreach. They have to, given the way double jeopardy and the rest of the criminal justice system works.

We get that you and the other technerds are angry about what happened to Swartz, but if you don't redirect your misplaced anger where it properly belongs (i.e., the laws that gave rise to this situation in the first place), you won't accomplish anything, and then Swartz really will have died for nothing.

* The sad part, though, is that the one thing punishment will never achieve is to make Ortiz have a guilty conscience. She and people like you will never realize that she is a bad person and should feel bad.*

Lawyers have feelings, too. Ortiz almost certainly went into the prosecutor's office to do good, to see justice done and to protect the innocent. Do you really believe that Ortiz doesn't feel torn up that a young white collar defendant committed suicide because she pushed him too hard? Because if you really believe that, then you are the sociopath, not her. She will spend the rest of her career second guessing herself with every defendant--both the defendants like Swartz and the murderers and drug dealers that form the rest of her caseload.

I agree that the system is the problem. Never said it wasn't. Seeing Ortiz punished is not mutually exclusive with fixing the system. I was simply attempting to offer an explanation as to why people are calling for punishment given that it will not fix the system or prevent future Aaron's (as you've been so enthusiastically pointing out for the past two days). That's why Nietzsche is relevant - clearly deterrence is not the motive here, so what is? Do you have a better explanation?

As for your last paragraph, I'm happy to let my fellow technerds judge who is the sociopath here. I do believe that Ortiz has egregiously failed if her intent were to do good. I do not believe in the prima facie legitimacy of duly enacted laws in a representative democracy - especially one made up of such morally degraded citizens as our current United States.

...the system, and more specifically the laws, are the problem.

Not "more specifically", the right word is "including". And the system includes a lot of other broken things.

Such as the way that prosecutors habitually overreach. And no, they don't "have to" do that. They have discretion, but don't get ahead in their jobs unless they do overreach.

So yes, the laws need improvement. But so do prosecutors.

Lawyers have feelings, too. Ortiz almost certainly went into the prosecutor's office to do good, to see justice done and to protect the innocent.

I believe this to be true.

I also believe that Ortiz completely lost track of that, and has become something that she hopefully would have hated when she was younger. Unfortunately for Ortiz, I further believe that having her bear real consequences for having lost her moral compass and justifying her actions with "that's just my job" would be a very useful step on the path to fixing the broken prosecutorial culture that lead to Aaron's suicide.

She will spend the rest of her career second guessing herself with every defendant--both the defendants like Swartz and the murderers and drug dealers that form the rest of her caseload.

Yes, she likely will. Furthermore this is probably not the first tragedy she's been involved with, nor is it likely to be her last if she continues. However her very success in the broken system she's in is direct evidence that this incentive is not enough to get her - or other successful prosecutors - to behave in a humane fashion to those she opposes. Therefore the fact that she feels unhappy about the result is clearly insufficient deterrence.

For accuracy's sake, and someone correct me if I'm wrong, but you don't need to "break in" to MIT's network. It's entirely open, no? At least last I was there.

Swarz evaded MAC address bans by changing his MAC address. Also, at once point, WIFI guests needed to agree to terms on a captive portal IIRC; this may not have been the case when he was active though. Finally, no one had blanket permission to plug arbitrary devices into the network. Physical access has always required permission, and, IIRC, agreeing to terms.

Finally, just because a network is open does not mean you have permission to use it.

> Finally, just because a network is open does not mean you have permission to use it.

If it looks like a store and the door's unlocked their are unsettling consequence when it is considered appropriate to charge trespassing when someone comes in expecting to shop around.

If it is common understanding that MIT's net work is open and is used/viewed as a public resource with out MIT making it know otherwise then their are unsettling consequences if it is considered appropriate to charge a user with digital trespassing.

Now there have been several reports that the MIT network often unpoliced/regulated on purpose, and there are many other universities that have similar polices though most not as liberal as MIT's, so in this light I have not been able to see any arguments for digital trespassing as a strong argument.

it is common understanding that MIT's net work is open and is used/viewed as a public resource

IT IS NOT. I'm an MIT alum. MIT is crystal clear that their network is private and people can only use it while following their rules. Seriously, does http://ist.mit.edu/mitnet sound like a free for all network where anyone can do anything to you?

First off, it's Swartz, not 'Schartz' or 'Schwartz'.

As for the rest of your uninformed writings I think that 'intellectually dishonest' nicely covers it.

Please at least correct the name.

Rayiner's writings are some of the most informed writings on this topic that I've seen this week. They are all far more informed and intellectually honest than anything you've written.

Both you and Jacques would be happier if you avoided talking to each other for awhile. You have radically different perspectives and different investment in this particular tragedy and it's making your interactions go sideways.

It's good to have both of you on HN, so it seems pointless to cultivate a feud. A month from now, you both might find you enjoy having the other one around to engage with. Me and Jacques agree on approximately zero issues and I'm glad he's back.

Apropos nothing else, I agree that 'rayiner has been invaluable. The more people we have on HN that have taken crim law the better.