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Rep. Zoe Lofgren Introduces Aaron's Law [pdf]

lofgren.house.gov

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Re: Rep. Zoe Lofgren Introduces Aaron's Law [pdf]

#31

Post by anigbrowl »

tptacek wrote: post #14
rayiner wrote: post #10

Earlier quoted context omitted.

The depressing lulziness if a sentence that scales with the number of documents downloaded is matched only by that of sentences that scale with the weight of the drugs carried.

Seriously, how does that even make sense? The idea of a sentence that is accelerated if it's your Nth offense makes sense. A sentence accelerated by malicious destruction (of any sort) makes sense. Accelerate if done for commercial gain. Accelerate for deliberately obstructing investigations. Accelerate for being the ringleader of a conspiracy. But a sentencing structure that says "fuck it, all we have to go on is da…

Well, it's a problem with sentencing in general. If you have $2m and I steal $1m from your safe, it's judged a much worse crime than if you have $200 and I steal all of it, even though the outcome for you is a lot worse in the second case. Ideally the imposition would be quantified in terms of the marginal cost to the injured party, but then there's another economic theory that says we have to multiply that by the probability of capture in order to achieve deterrence by means of a criminal's indifference curve.

And at that, we're not even committed to any kind of intellectual theory of sentencing int eh first place - some lawmakers thinks sentencing is a punitive matter, some rehabilitative, and so on. Gestural politics are the norm in American criminal justice; which goes some way to explaining how we only recently had mandatory minimum sentences recognized as unconstitutional, and how the crack/cocaine disparity was addressed even more recently, despite its blatantly obvious unfairness.

I don't think legislation will go anywhere, since the house GOP will probably sink it in the name of personal responsibility.

Re: Rep. Zoe Lofgren Introduces Aaron's Law [pdf]

#32

Post by Bud »

tptacek wrote: post #7

Would Aaron's Law have helped Aaron? Both Orin Kerr and Jennifer Granick have said that his actions in evading filtering and shutoffs on MIT's networks would have created a plausible argument for the prosecution that he had been evading specific code-based authorization mechanisms and would have known his access was unauthorized. If you read Reason, you're immediately suspicious of laws with people's names on them; t…

The validity of this bill, of course, has nothing whatever to do with its name. That's self-evident. So we should evaluate it on its merits, even if there may be a demonstrable tendency in the past for bills with sensationalistic names to lack substance.

Re: Rep. Zoe Lofgren Introduces Aaron's Law [pdf]

#33

Post by tptacek »

spinlocked wrote: post #23
tptacek wrote: post #7

Would Aaron's Law have helped Aaron? Both Orin Kerr and Jennifer Granick have said that his actions in evading filtering and shutoffs on MIT's networks would have created a plausible argument for the prosecution that he had been evading specific code-based authorization mechanisms and would have known his access was unauthorized. If you read Reason, you're immediately suspicious of laws with people's names on them; t…

Lofgren's proposal appears to address the EFFs main concerns: https://www.eff.org/deeplinks/2013/01/aaron-swartz-fix-draco... Legislating against what you term "prosecutorial misconduct" is far fetched. Can you imagine how you would word that legislation without hampering law enforcement efforts against the real bad guys? Do you really want that? Having the law named after Aaron would be more than symbolic, it would…

Do I want a better sentencing system for computer fraud, so that it remains possible for companies to defend themselves without needing to spend hundreds of thousands of dollars every quarter finding every conceivable loophole an attacker might exploit, while not leading to a situation where simply using a computer turns a simple offense into a 6 year prison sentence?

Yes, that is what I want, and I don't think it's too much to ask for.

After I wrote the comment above, I worried that it would read as a contrarian barb at any attempt to move forward with better computer crime laws. I don't mean it that way, which is why I went back and pointed out that Lessig thinks it's "critically important". But I meant my first question as I wrote it: would Aaron's Law really have helped Aaron?

Re: Rep. Zoe Lofgren Introduces Aaron's Law [pdf]

#34

Post by kyboren »

michaelfeathers wrote: post #6

It's a nice narrow fix and I hope it passes, but the real elephant in the room is 'plea bargaining.' That needs reform at the federal level.

Federal prosecutors' primary tactics mirror those of the medieval siege. They do their best to fling arrows at the castle by generating enormous amounts of discovery material They starve defendants with insanely over-broad civil asset forfeiture laws. They charge crimes on the prosecutor's whims: HSBC bankers get away with laundering hundreds of billions for Iran, but go after Aaron Swartz with utter malice. Of course, these whims are driven (as always) by personal ambition, outright greed, and a strategy towards personal profit. They strip the defendant of all his most essential Constitutional rights, and then bully him into accepting the arbitrary conditions imposed by one in a position of power, desecrating the right to a trial by peers--a right we gained in the 13th century.

We must pass laws mandating adequate funding for the judiciary, and mandating that after the prosecution's total expenditures surpass $50,000, the prosecution must contribute the amount it spends on its own expenses, minus the first $50,000, to a legal defense fund for the defendant.

This will ensure the government will not resort to dirty tactics like inundation with discovery materials, since they will just have to pay for the defendant's lawyers to read them all. They will not be able to subjugate defendants with their might, because defendants will have the means available to them to stand up to it.

Re: Rep. Zoe Lofgren Introduces Aaron's Law [pdf]

#35

Post by tptacek »

Bud wrote: post #32
tptacek wrote: post #7

Would Aaron's Law have helped Aaron? Both Orin Kerr and Jennifer Granick have said that his actions in evading filtering and shutoffs on MIT's networks would have created a plausible argument for the prosecution that he had been evading specific code-based authorization mechanisms and would have known his access was unauthorized. If you read Reason, you're immediately suspicious of laws with people's names on them; t…

The validity of this bill, of course, has nothing whatever to do with its name. That's self-evident. So we should evaluate it on its merits, even if there may be a demonstrable tendency in the past for bills with sensationalistic names to lack substance.

You're right, of course.

Re: Rep. Zoe Lofgren Introduces Aaron's Law [pdf]

#36

Post by cookiecaper »

spinlocked wrote: post #23
tptacek wrote: post #7

Would Aaron's Law have helped Aaron? Both Orin Kerr and Jennifer Granick have said that his actions in evading filtering and shutoffs on MIT's networks would have created a plausible argument for the prosecution that he had been evading specific code-based authorization mechanisms and would have known his access was unauthorized. If you read Reason, you're immediately suspicious of laws with people's names on them; t…

Lofgren's proposal appears to address the EFFs main concerns: https://www.eff.org/deeplinks/2013/01/aaron-swartz-fix-draco... Legislating against what you term "prosecutorial misconduct" is far fetched. Can you imagine how you would word that legislation without hampering law enforcement efforts against the real bad guys? Do you really want that? Having the law named after Aaron would be more than symbolic, it would…

>Legislating against what you term "prosecutorial misconduct" is far fetched. Can you imagine how you would word that legislation without hampering law enforcement efforts against the real bad guys? Do you really want that?

Maybe it's less about "legislating against" the specific conduct, and more about oversight on incumbent prosecutors and ease of removal when someone proves themselves unworthy of the considerable power with which they've been trusted.

Re: Rep. Zoe Lofgren Introduces Aaron's Law [pdf]

#37

Post by detst »

rprasad wrote: post #20
michaelfeathers wrote: post #6

It's a nice narrow fix and I hope it passes, but the real elephant in the room is 'plea bargaining.' That needs reform at the federal level.

Getting rid of plea bargaining doesn't make the problem better; it makes it worse by removing any compromise between walking away and the maximum sentence. From my own experience: in mental committment proceedings, there is no halfway point between letting the defendant stay free and committing them to a mental hospital. Consequently, the prosecutor's office simply never negotiates; they take every case to trial.

> Getting rid of plea bargaining doesn't make the problem better

He didn't say that and I hope you know the difference. Reform is desperately needed.

Re: Rep. Zoe Lofgren Introduces Aaron's Law [pdf]

#38

Post by [deleted] »

politician wrote: post #19
kyboren wrote: post #13

We need to ensure that "Internet website" is replaced with "any computing device which intentionally uses electromagnetic radiation to communicate with other computing devices". EDIT: OK, how about, "any device which intentionally communicates with other devices". Is that better?

I'd strike "computing" from your suggestion as well.

[deleted]

Re: Rep. Zoe Lofgren Introduces Aaron's Law [pdf]

#39

Post by bhousel »

tedunangst wrote: post #12
bhousel wrote: post #3

The important stuff: SEC. 2. ELIMINATION OF CERTAIN VIOLATIONS OF AGREEMENTS OR CONTRACTUAL OBLIGATIONS, RELATING TO INTERNET SERVICE, FROM THE PURVIEW OF CERTAIN CRIMINAL PROHIBITIONS. (a) FRAUD AND RELATED ACTIVITY IN CONNECTION WITH COMPUTERS. - Section 1030(e)(6) of title 18, United States Code, is amended by striking ‘‘alter;’’ and inserting the following: ‘‘alter, but does not include access in violation of an…

And the important question: was jstor's tos the only mechanism used to deny Aaron access?

No, there were other mechanisms used to deny Aaron access to the JSTOR archive (and he made several attempts). I don't think this law change would have affected Aaron's case at all.

What he did was still plausibly wire fraud, computer fraud, unauthorized access, and computer damage.

Edit: To those downvoting me, please read Orin Kerr's take on this case here: http://www.volokh.com/2013/01/14/aaron-swartz-charges/

The charges against Aaron do appear legit, and I don't see how changing the definition of wire fraud to exclude TOS violations would have affected Aaron's case. Set aside the issue of whether you think the prosecution pursued Aaron's case too aggressively (I think they did) or whether you think the permissible sentences for these crimes are fair (I think they are not).

Interesting sidenote: Kerr himself defended Lori Drew in the so-called "MySpace suicide" case (2008), in which Drew was convicted of computer crimes and wire fraud for violating MySpace's TOS by "cyber bullying" 13-year old Megan Meier, resulting in Megan's suicide (the conviction was overturned on appeal). http://www.mail-archive.com/volokh@lists.powerblogs.com/msg1...

There is no federal law against cyber-bullying, so the prosecution in that case used these same computer and wire fraud laws to go after Drew for her role in Megan's suicide.

Re: Rep. Zoe Lofgren Introduces Aaron's Law [pdf]

#40

Post by jacquesm »

tptacek wrote: post #7

Would Aaron's Law have helped Aaron? Both Orin Kerr and Jennifer Granick have said that his actions in evading filtering and shutoffs on MIT's networks would have created a plausible argument for the prosecution that he had been evading specific code-based authorization mechanisms and would have known his access was unauthorized. If you read Reason, you're immediately suspicious of laws with people's names on them; t…

I read the Granick piece. One thing that strikes me as completely absurd is that the plea deal is for a substantially lower sentence and that if the plea deal is rejected the prosecution will go for a much higher punishment, sometimes as much as 10 times as much as offered in the deal. It would seem to me that if you offer a guilty plea that is 10% of what you intend to seek that if such an offer is on the record that a small multiple of that (say twice as much) should become the new maximum sentence. It's utterly frivolous to mess around with 90% or more of a sentence just to put pressure on people, that's poker table tactics and we're dealing with people's lives here.

The most worrying bit is the part where she says that people will plead guilty to things they did not actually do just to not have the chance at a much worse sentence during a trial stacked against them. This is not about justice at all, it's just a numbers game.

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