The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion

That definition really begs the question [1]. A simple counter-example: Google didn't break any rules when it launched a search engine built on pagerank rather than conventional indexing. They broke convention.

Talk about 'breaking the rules' sounds great at motivational seminars or in marketing speak, but metaphors don't make for credible legal or policy arguments. We give up a degree of individual autonomy in such matters and do things by consensus instead because historically this has proved preferable to resolving disagreements by force - as the Declaration of independence has it, people institute governments to secure their rights to life, liberty and the pursuit of happiness, as opposed to Hobbes' vision of anarchy as 'a war of all against all.'

1. http://en.wikipedia.org/wiki/Begging_the_question

The Rosa Parks story is interesting because she did something that was clearly good in the eyes of many but against the law anyway and that was 'bad' in the eyes of only a slight majority at the time.

That same thing can be said of Aaron Swartz, there are many people that feel the same way, that locking up knowledge behind paywalls is both immoral and that it impedes progress, but a majority can't be found to take on the business interests that control the flow of knowledge.

Unlike with Al Capone, we're not talking about flooding the streets with an intoxicating liquid, we're talking about to something that should be a basic human right here: the right to educate yourself through accessing our communal pool of knowledge. If there is one interesting thing about our current form of democracy it is that people routinely vote on a few narrow issues and get a whole pile of non-related items pushed at them going directly against the interests of that same majority.

Sometimes you have to do more than just sit on the wrong chair for a while to make a noticeable difference. Lots of people have been doing the equivalent of that for a long time now without much progress being made. I guess for Aaron that speed of progress just wasn't enough.

And just like Al Capone he wasn't charged with spreading the knowledge, he was charged with the computer crime equivalent of tax evasion, the breaking of some terms of service and evading some very basic bans on an otherwise terribly insecure network where everybody had access to that knowledge.

The internet doesn't care about censorship it is said, it will route around it. But someone will still have to program those routers and that where people like Aaron come in, they observe and identify bottle-necks, then proceed to fix them. If your gravy train ride depends on holding bits hostage and dribbling them out to the public at a rate or in a way that you can control then you really should go and read Nick Negroponte's 'being digital' again.

It's been said that I don't like JSTOR. I have no feelings positive or negative towards them, just like I have no such feelings towards dinosaurs. They're going to go away one of these days because their useful lifespan is almost at an end, disrupted by the combined cheap costs of storage and communication.

The vast majority of the order you see in the world around you isn't because of laws, but because of a mutual interest in cooperation.

Now let's assume for a second that booze is just as important as scientific research. He would be equivalent to an anti-prohibition activist that ran a boat to Canada to pick up booze, but only charged for costs of operating the boat and the purchase price of the booze (operating at no profit), and never drank any himself.

He would not want to get caught for two reasons: he would not be able to provide the booze to those who need it and it would interfere with his plans to run as an anti-prohibition candidate which he can't with a felony on his record.

Utility is discrete rather than linear here: the cost of going "clean record" to "petty felon" is greater than going from "petty felon" to "petty felon with another conviction" (non-violent felonies are usually not subject to three-strike laws).

So here's what I would find a fit punishment:

* Monetary retribution to MIT and investigating agencies (as well as JSTOR if they so choose). Capped as to be reasonable.

* Misdemeanor conviction subject to being expunged if his record stays clear.

* No jail sentence, but perhaps community service that involved tutoring jail inmates (it would give him a realistic view of what jail is like).

* Some form of supervised parole with the condition that doing what he did again would mean jail and a felony charges.

* No restrictions whatsoever on his speech, but he should he prohibited about talking of his exact punishment/settlement (so that it's imagined to be more harsh than it really is).

Overall, maintain high incentives for him to not break the law again and to instead use other means to change it.

That does have one problem, however: it does not deter others from doing the same. Yet, as far as I understand, there aren't that many people seeking to do what Aaron did: the intersection between "people willing to torrent copyrighted material that they gleaned by breaking captchas with a script" and "people strongly supportive of open access with no profit motive" consisted of Aaron.

What he did was rare and unusual, so punishingly him harshly would do little to reduce crime -- there's no one else to deter.

We'll see about that.