"It is difficult to get a man to understand something, when his salary depends upon his not understanding it."
-Upton Sinclair
Why? He is precise in what his post is doing: simply making an evaluation of whether the charges stack up with the law on the books. He neither promises nor tries to evaluate the legitimacy of the laws. I think that is perfectly fine and in fact I'd love if more qualified folks shared their specific interpretation of the law with minimal bias in either direction.
Often I run into programmers who want want to think that all questions should have yes or no answers. Even if they don't, many of us have a deep sense that there is something right about seeing the world in terms of strict categorical statements.
Me? Well, as a programmer, citizen and human being, I'm suspicious of it. Deeply.
(I have degrees in law & CS)
No, it's not, and it's the nr 1 mistake armchair lawyers across the internet are making in commenting on this case. Law is much more common sense than many people give it credit for; except it's common sense in a very different way than many people want it to be. (e.g., the bickering elsewhere in this thread on the intricate details of the facts and Orin's analysis of it).
Which also implies that there is hardly any possibility for his analysis to be 'incorrect' because it is rooted to come out as correct within the provisions of existing laws.
Isn't that so?
his analysis is about whether the charges the prosecutors levied against him were reasonable, based on case law. if he misinterpreted established case law or the charges levied against aaron, his analysis certainly could be incorrect.
If we learn the laws are far overreaching, it requires a different set of actions to attempt to change than if we find that the charges don't align with the law.
This first post is to show how the charges fit the existing law...This is to tackle the first question of, Is what Aaron Swartz did illegal?
This is a wholly different question than whether the prosecution was justified in its aggression, which will be the topic of his second post.
But whether something was illegal or not, yes, generally, we want that question to be based on existing laws. You do not want to go to court, either as a defender or prosecutor, on the grounds that your case will be decided on what's made up during trial.
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Someone noted that many HN readers are programmers and seem to have problems with seeing the world as too black and white...I'm surprised at how hard it is for professionals whose work is heavily governed by the concept of orthogonality not being able to understand why people like Kerr can dissect this controversy into two separate components. Both components, related as they are, are worth considering and involve different arguments and evidence.
[1] http://www.volokh.com/2011/11/14/my-congressional-testimony-...
[2] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=399740
He got the GW Law gig, in part, because of his prosecutorial duties at DoJ. So his salary does somewhat depend on his not understanding that the problem was the DoJ, not Aaron.
It's a hazard of going corporate: Corporate becomes more important than people.
But whenever I read him at the Volokh Conspiracy, inevitably he seems to come down on the other side.
Check out some of his GPS / 4th Amendment analyses. For a guy that claims to be a civil libertarian and for a guy that claims to understand tech, he sure comes down awfully frequently on more expansive powers for search and seizure and miss the obvious civil liberties and technology issues.
And no, I can't point to anything specific, but it is my general sense of the guy after reading what he writes at the VC for a couple of years now. And I appreciate what he writes, and it can be very illuminating to me as a non-lawyer, but I have often been struck by how much this critic of CFAA and civil libertarian isn't.
(I personally thought the CFAA "unauthorized access" could be fought, but that leaves 3/5. Computer Fraud and Wire Fraud are essentially always true if you do anything even slightly mean on a computer, and I'm not sure about the damage to computer systems -- that was self-inflicted by JSTOR, and IMO could have been fought. The MIT side of it was also stupid.)
Boycott or other commercial actions against anyone who supports the copyright empire would be one way of getting the law changed.
Unfortunately people in the tech community are going to get distracted by other stuff (both stupid legislation like getting involved in gun control, and reasonable stuff like working on cool new technology), so mounting the sustained, multi-year effort to fix this is going to be very difficult.
In the future, in any likely reality that I can foresee, the laws are going to remain more or less the same and prosecutors are going to still be using scorched earth tactics. To change the system you need lawyers, but lawyers have a love-affair with the system and knee-jerk in defense of one-another. Ethics and the law are too intertwined for them, any effort to change the system to be more ethical will only continue to be met with cries of "But it's already legal!". I've seen it dozens of times today, and I don't see any light at the end of that tunnel.
If others are going to follow in Aaron's footsteps, they will have to make one particular change: be better at remaining unidentified.
Either that or be fully aware of the consequences and do it anyway but in such a way that the genie can never be put back into the bottle. Aaron paid an extremely high price for something that eventually did not succeed.
Which I think is correct.