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

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

#101

Post by pdonis »

newman314 wrote: post #21
bcoates wrote: post #17

Earlier quoted context omitted.

OK, here's some substantiation: http://www.nytimes.com/2013/01/03/opinion/how-bankers-help-d... HSBC has admitted that it is for all practical purposes a criminal enterprise masquerading as a bank. This is not a paperwork mistake or a lapse of oversight, it's their business model. Nobody will be prosecuted. The people performing these admitted criminal acts will be allowed to keep their paychecks, their bonuses, and…

I'll leave this here. http://www.npr.org/blogs/money/2012/12/14/167280430/episode-... Planet Money talks about HSBC and well worth a listen. The problem really is why haven't any individuals been indicted from HSBC or any Wall Streeters (from the whole mortgage mess)? On a side note, Planet Money is IMO an outstanding podcast.

The problem really is why haven't any individuals been indicted from HSBC or any Wall Streeters (from the whole mortgage mess)?

Because then you would also end up having to indict all the government officials who were intimately involved in the mess. One of them is the outgoing Secretary of the Treasury (he was the head of the New York Fed then). Not gonna happen.

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

#102

Post by pdonis »

rayiner wrote: post #94
nitrogen wrote: post #65

Earlier quoted context omitted.

The purpose of laws is to provide a framework for the easy cases. The hard cases should be judged by their intent and their outcome. 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.

Mutual interest in cooperation happens in the shadow of the law. My parents home country of Bangladesh is a terrible place with no law and order. Are people not mutually interested in cooperation? I don't think that is something people there want less than people here. But at base we are tribes of monkeys. I cooperate with you, but only because I know that if you don't hold up your end of the bargain or act anti-soci…

Mutual interest in cooperation happens in the shadow of the law.

At the present time, yes, there's a high correlation. But 15,000 years ago, there were no laws, yet humans still engaged in mutual cooperation. Mutual cooperation is prior to law; laws are just the way we currently try to facilitate mutual cooperation.

I cooperate with you, but only because I know that if you don't hold up your end of the bargain or act anti-socially, I can call the other monkeys to put you in your place.

This is one possible reason, but it's not the only one. If both of us can realize greater gains from mutual cooperation and trade than we can from each being isolated individuals, then we have an incentive to mutually cooperate even without any other enforcement mechanism. The reason the other enforcement mechanisms are there is that, as you say, we evolved from creatures that were not intelligent enough to consciously apprehend the incentives for mutual cooperation, so we evolved unconscious mechanisms for doing so. That's what all those tribal instincts are: calling the other monkeys to put an anti-social monkey in his place happens in the absence of laws too.

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

#103

Post by subsystem »

rdl wrote: post #79
mjn wrote: post #52

Earlier quoted context omitted.

Provoking an arrest to gain publicity and highlight a law's unjustness is one civil-disobedience tactic, but I don't see it as the only one, or a particularly canonical form. Thoreau's original essay on the subject focused on the moral imperative to ignore unjust laws through noncompliance. That might result in an arrest, or it might not; the important part was noncompliance, and provoking an arrest was simply a nece…

I think being an a abortion provider in countries where it is illegal is a totally valid form of civil disobedience, with the goal being to successfully provide services, not to be caught and convicted.

I think the discussion about civil disobedience is largely a straw man to steer the conversation in a certain direction.

The point of his actions in this case (if as described in the blog post, which hasn't been concluded) was to directly change the way the data was distributed and therefore better described as a 'direct action'.

For a description of 'direct action', see the third paragraph of the first page in this book: http://books.google.se/books?id=W15vhV6EiSQC&pg=PA1

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

#104

Post by travisp »

btilly wrote: post #19
rayiner wrote: post #12

Earlier quoted context omitted.

I think there is a strong grain of truth to what you say. My politics are fairly lawyerly,[1] and I find the anti-democratic sentiment on here disquieting, especially the constant attempts to discredit the democratic process at every turn by unsubstantiated hand waving about how the system is "bought." [1] I think the chicken came before the egg. The profession attracts people who have a strong sense of order and con…

For the record, I do not consider myself anti-democratic. I consider myself pro-democratic. However I do not see that we have a democratic process. As a concrete example, consider the last election. More than 50% of voters voted for Democrats in Congress (even when you discard seats where there was only one party on the ballot, still over 50% voted that way), and a large majority in polls want Congress to become less…

>More than 50% of voters voted for Democrats in Congress (even when you discard seats where there was only one party on the ballot, still over 50% voted that way), and a large majority in polls want Congress to become less partisan.

The problem with your argument is that people voted based on how the election system is currently setup. If the system were setup differently, then people might have voted differently. It's the same issue when people say that there is a problem when a presidential candidate won the "popular vote" but not the electoral vote. Had the election actually been based on the popular vote, the voting might have been different. If you live in a state that is definitely going to one candidate or another, you might not bother voting under the electoral vote system, but you might have in the popular vote system. The "popular vote" results don't take into account these people and is not necessarily a reflection of what the popular vote would have been in a popular vote system.

Similarly, let's suppose you have a state that's definitely going Republican in the presidential election no matter what. You get lower turnout and the state chooses a Republican president and congressmen, but the country chooses a Democratic president. Because the turnout was low in the Republican state, but perhaps higher in the swing states that ultimately voted Democrat, when you look at total voters, it appears that percentage-wise, more than 50% of voters preferred Democrats. When looking at the percentages you can't ignore that many people intelligently chose not to vote in that state because their vote didn't matter. Had they known their vote would matter, the turnout and percentages may have been different.

In other words, it's not so simple to say that "More than 50% of voters voted for Democrats in Congress" because you're not taking into account all of the people who had opinions about who they wanted to win, but rationally chose not to vote in their particular area because the outcome of the race was certain in the way the election system was setup.

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

#105

Post by btilly »

acheron wrote: post #82
btilly wrote: post #19

Earlier quoted context omitted.

For the record, I do not consider myself anti-democratic. I consider myself pro-democratic. However I do not see that we have a democratic process. As a concrete example, consider the last election. More than 50% of voters voted for Democrats in Congress (even when you discard seats where there was only one party on the ballot, still over 50% voted that way), and a large majority in polls want Congress to become less…

That's not how it works. The Congress as a whole does not represent the US population as a whole; it's not supposed to, and I'd argue it would be a terrible idea if it did. You have one representative, who represents one district. If the whole Congress represents the whole country, then no individual representative represents any specific area. If a district in Vermont votes 60% R/40% D in favor of a Republican, and…

I know how it works. The Congress that we get reflects the gerrymandering of Congressional districts that has been done state by state. The average of people elected to Congress is not biased Republican because voters in Vermont and West Virginia are not balancing out, but because states like Florida and Ohio have districts drawn such that each district is clearly one side or another, with the number of Republican districts significantly exceeding their popular support across the state.

The national result of those gerrymanders is to give Republicans a non-representative edge, and to give the extremists of both parties a much bigger impact than they would otherwise have. And this is not just "how it has always been". This is a trend that is intensifying over time. That is, Congress does not represent the people very well, and represents us less well now than it did a generation ago.

See http://fivethirtyeight.blogs.nytimes.com/2012/12/27/as-swing... for more on this exact topic.

PS You picked a poor example. The only court case in which the third amendment was at direct issue is http://en.wikipedia.org/wiki/Engblom_v._Carey in which it was found that the law was so obscure that bureaucrats could not be faulted for having violated it. Any future violation can also be defended on the same grounds, so it is effectively null and void.

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

#106

Post by pdonis »

btilly wrote: post #99
pdonis wrote: post #93

Earlier quoted context omitted.

You missed a principle: 3. The punishment must be enough to deter him--more precisely, to ensure that he switches from illegal to legal means for achieving his goals. The whole point is that #3 might well be incompatible with #1 and #2, if Aaron was sufficiently committed to his goals and legal means did not offer enough of a possibility of achieving them (which is what appeared to be the case). Obviously if you leav…

I did not miss that. The #3 that you discuss follows as a logical consequence of #1 and #2 if #2 exceeds #1. Which it did in this case. But the statement that #1 should be the principle under which Aaron should be sentenced does NOT logically imply that it is in all cases that right applicable principle.

Huh? Either I'm missing something or your logic is in error. To briefly restate: let P = the amount of punishment imposed; let D = the minimum amount of punishment sufficient to deter; let R = the "reasonable limit" on the amount of punishment.

#1 says: not P > D.

#2 says: P #3 says: P >= D.

There are no logical implications between any pair of the above.

#1 and #3 combined force P = D. But that is incompatible with #2 if D > R. To put it back into English: if the only amount of punishment that will deter is greater than the "reasonable limit", there is no way to satisfy all the principles.

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

#107

Post by atas »

temphn wrote: post #9

Swartz had something else in mind it seems; just taking the law into his own hands I think this is really one of the core reasons so many hackers disagree with this lawyer mindset. A hacker or an entrepreneur is someone who breaks rules to create something. Innovation and consensus are antonyms, not synonyms. Innovation does not happen by committee. If you wait for a "democratic process" that is bought and rigged by…

This too was my main objection to the article. How could a single hacker pose a threat to democracy? And is it really democracy?

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

#108

Post by btilly »

travisp wrote: post #104
btilly wrote: post #19

Earlier quoted context omitted.

For the record, I do not consider myself anti-democratic. I consider myself pro-democratic. However I do not see that we have a democratic process. As a concrete example, consider the last election. More than 50% of voters voted for Democrats in Congress (even when you discard seats where there was only one party on the ballot, still over 50% voted that way), and a large majority in polls want Congress to become less…

>More than 50% of voters voted for Democrats in Congress (even when you discard seats where there was only one party on the ballot, still over 50% voted that way), and a large majority in polls want Congress to become less partisan. The problem with your argument is that people voted based on how the election system is currently setup. If the system were setup differently, then people might have voted differently. It…

According to polls, people who don't vote are overwhelmingly Democratic. So if you count people who didn't vote, the election becomes even less representative.

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

#109

Post by rayiner »

pdonis wrote: post #102
rayiner wrote: post #94

Earlier quoted context omitted.

Mutual interest in cooperation happens in the shadow of the law. My parents home country of Bangladesh is a terrible place with no law and order. Are people not mutually interested in cooperation? I don't think that is something people there want less than people here. But at base we are tribes of monkeys. I cooperate with you, but only because I know that if you don't hold up your end of the bargain or act anti-soci…

Mutual interest in cooperation happens in the shadow of the law. At the present time, yes, there's a high correlation. But 15,000 years ago, there were no laws, yet humans still engaged in mutual cooperation. Mutual cooperation is prior to law; laws are just the way we currently try to facilitate mutual cooperation. I cooperate with you, but only because I know that if you don't hold up your end of the bargain or act…

> At the present time, yes, there's a high correlation. But 15,000 years ago, there were no laws, yet humans still engaged in mutual cooperation.

Depending on how you look at it, either "law" exists even in primate tribes, or what they do can't be considered "mutual cooperation." That is to say you can either consider the will of the dominant male and the acquiescence of the other primates to be a form of law, or you have to concede that a tribe working in such conditions is not really engaging in mutual cooperation.

In any case, law isn't "just the way we currently try" to achieve mutual cooperation. It's coincident with civilization. We have legal codes dating back 4,000 years. Law is how we scale cooperation from small bands lead by a dominant male to countries of 300 million people.

> If both of us can realize greater gains from mutual cooperation and trade than we can from each being isolated individuals, then we have an incentive to mutually cooperate even without any other enforcement mechanism.

You can always achieve greater gains by cooperating only up to the point where it's most advantageous for you.

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

#110

Post by pdonis »

rayiner wrote: post #109
pdonis wrote: post #102

Earlier quoted context omitted.

Mutual interest in cooperation happens in the shadow of the law. At the present time, yes, there's a high correlation. But 15,000 years ago, there were no laws, yet humans still engaged in mutual cooperation. Mutual cooperation is prior to law; laws are just the way we currently try to facilitate mutual cooperation. I cooperate with you, but only because I know that if you don't hold up your end of the bargain or act…

> At the present time, yes, there's a high correlation. But 15,000 years ago, there were no laws, yet humans still engaged in mutual cooperation. Depending on how you look at it, either "law" exists even in primate tribes, or what they do can't be considered "mutual cooperation." That is to say you can either consider the will of the dominant male and the acquiescence of the other primates to be a form of law, or you…

you can either consider the will of the dominant male and the acquiescence of the other primates to be a form of law, or you have to concede that a tribe working in such conditions is not really engaging in mutual cooperation.

I don't think "dominant male" is a valid description of the organization of all pre-civilized human tribes. I agree that the incentive for mutual cooperation is not the only incentive in play; and of course that's just as true now as it was 15,000 years ago.

Law is how we scale cooperation from small bands lead by a dominant male to countries of 300 million people.

I agree with this, and I should have mentioned it in my earlier post. As you note, law was the way mutual cooperation was scaled even when it just involved cities of a few thousand people 4,000 years ago. I was only trying to point out that the incentives for mutual cooperation are logically prior to the means used to facilitate it.

Also, of course, scaling mutual cooperation is not the only thing law is used for; it is also used to facilitate rent-seeking and other non-cooperative behaviors. That was true 4,000 years ago as well.

You can always even greater gains by cooperating only up to the point where it's most advantageous for you.

If the interaction is non-iterated, yes. In an iterated interaction you can't--or rather, you can, but the other person will just retaliate by ceasing to cooperate, and you both will be worse off than you would have been if you had continued to mutually cooperate. See the Prisoner's Dilemma.

(Btw, I'm not claiming that this doesn't happen. I'm just claiming that it is not actually a gain in the long run.)

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