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Comment by JohnsonB | Hacker News Reader

How can spoofing IP/MAC addresses be considered "false pretenses" if these are considered, by nature of how computer networks and management thereof have evolved, to be transient or arbitrary in nature? Spoofing IP/MAC addresses does't even involve "pretenses", because it is a fallacious assumption (usually by the technically illiterate) that IP/MAC addresses correspond, or are even supposed to correspond, to a unique person/computer/entity in the first place. I can't say this is a good analysis by Kerr, given that he ignores extremely basic weaknesses such as this in the charges brought against Swartz.

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When done deliberately to circumvent blocks, that has nothing to do with "how computer networks and management thereof have evolved, to be transient or arbitrary in nature".

Nobody who isn't blinded by groupthink or hero worship can deny that Swartz was guilty of a number of crimes. You can debate whether the prosecution was inappropriately heavy-handed given the nature of the crimes, or even whether some or all of those crimes should in fact be crimes, but not that he did commit them.

>When done deliberately to circumvent blocks

The blocks weren't necessarily to prevent fraud. Swartz's actions took place in the "open" culture of MIT, and that context matters and should be taken into account before you accuse Swartz of wire fraud.

>Nobody who isn't blinded by groupthink or hero worship can deny that Swartz was guilty of a number of crimes.

That is a legitimate area of debate.

> Swartz's actions took place in the "open" culture of MIT, and that context matters and should be taken into account before you accuse Swartz of wire fraud.

Orin Kerr:

> As for unauthorized access, you're assuming that the unauthorized access was to MIT's computer. [...] I don't think thhese objections work if you assume that the unauthorized access was to JSTOR's computer.

It's his intent that matters, who's computer he supposedly was trying to gain property from only matters once you prove he was using false pretenses. IP/MAC spoofing is not intrinsically a fraudulent activity, and in the context of MIT's campus from where he could access JSTOR, there's no reason to assume Swartz thought he wasn't allowed to do a bit of scraping, IP blocks for low traffic's sake notwithstanding.

Sorry, but that's unmitigated bullshit.

He didn't do "a bit of scraping", he tried to download the entire archive. On a guest account at a university he had no relationship with. Over a period of months. He was blocked with increasingly wide-reaching measures and reacted with increasingly elaborate circumvention attempts, culminating with a laptop hidden in a closet.

His intent was very clearly criminal.

IP/MAC spoofing is not intrinsically a fraudulent activity

No, it's not. But doing it to get around people blocking your computer is. Likewise firing a gun isn't illegal, but attempting to hit someone when you fire a gun is illegal even if you miss. Intent figures into guilt and inncense in most matters of criminal law.

Swartz clearly knew that his IP address and then MAC address were being blocked specifically. You could argue he might have thought that it was just traffic shaping, but that wouldn't explain the MAC block.

EDIT: Clarified by adding 'criminal' in front of law.

Isn't this like asking "How is wearing a fake mustache in public a false pretense?" It isn't. But if I'm doing it with an obvious intent on deceiving someone about my identity, don't you think that context matters? Even if the fake-mustache seems ridiculous?

In that case, if he'd bought a new laptop instead of changing the MAC address, would he have been off the hook?

he did buy a new laptop. its in the article.

That's the point, the spoofing of the IP/MAC addresses in themselves prove nothing, and yet Kerr is assessing it as such. The guy with a fake mustache could be a method actor preparing for his next role, and Swartz could have thought "MIT/JSTOR doesn't give a damn if I scrape these articles, but I don't care to ask for official resources to do it just to be told no."

You're being deliberately obtuse, or accusing Aaron of being.

Why are we speculating what Swartz "could have thought"? What was his defense team planning on arguing?

> Swartz could have thought "MIT/JSTOR doesn't give a damn if I scrape these articles, but I don't care to ask for official resources to do it just to be told no."

except that

1. his behavior was clearly against JSTOR's terms of service

2. his computer was blocked MULTIPLE times

3. when he retrieved his computer, he was using his helmet as a mask to avoid being filmed

1.) We're reading TOS now? Is that against the law?

2.) Irrelevant, could be a simple traffic reduction block.

3.) Too flimsy to rest the entire charge on.

> 1.) We're reading TOS now? Is that against the law?

so is your comment a joke reply, or do you have a serious argument? has this ridiculous response indicates that you concede that it is against the terms of service?

> 2.) Irrelevant, could be a simple traffic reduction block.

if he thought it was that, why did he need a mask to retrieve his computer?

> 3.) Too flimsy to rest the entire charge on.

agree. except there's all the stuff above.

Violating a private entity's TOS is not a federal crime. He did not mask anything: MIT has an open network, and apparently unlocked wiring closets (trespassing was not charged). Rotating your IP address on an already open network to circumvent said TOS does not constitute a statutory violation either. You can sue him, that's about it.

What about JSTOR's TOS?

A TOS can actually be very important in determining whether criminal law was broken or not.

Take a real property, rather than intellectual property, example: my house is private property. If you open my door and walk into my living room, you are trespassing, which is a crime (or you could be breaking and entering depending on your intent). However, if I put a sign up saying "come on in, JohnsonB!" then you have my consent to enter, and you have therefore not violated the letter of the law.

See how consent to use private property is the crux of whether a criminal violation occurred?

A TOS defines the boundaries of how an intellectual property owner consents to your use of that property. Go outside the bounds of that TOS and you are no longer operating with consent, and may indeed be committing a crime.

I'm not saying that this is how it should be. Just that this is how the law is generally interpreted.

If a bouncer kicks you from a bar, then you come back wearing a hoodie over your head and get bounced again, then come back wearing a fake mustache, you can't claim "I never knew they wanted me to leave".

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