The Criminal Charges Against Aaron Swartz – Part 2: Prosecutorial Discretion • Hacker News Board

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

#121

Post by betterunix » Thu, Jan 17, 2013, 6:22 PM UTC

rayiner wrote: post #12

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…

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…

"unsubstantiated hand waving about how the system is "bought.""

It is not exactly unsubstantiated: the powerful people within the system have basically admitted it. See, for example, Chris Dodd's comments:

http://www.foxnews.com/politics/2012/01/19/exclusive-hollywo...

How exactly might you interpret a comment like, "Candidly, those who count on quote 'Hollywood' for support need to understand that this industry is watching very carefully who's going to stand up for them when their job is at stake?" Politicians count on big business for support and the leaders of those businesses make sure those politicians do what benefits them.

It's not just Hollywood. Obama needed the support of the pharmaceutical industry to push the healthcare bill through; the deal was that the Obama administration would fight harder against medical marijuana and imported drugs, and despite the fact that Obama's public statements included talk of depriotizing marijuana, his first two years saw more raids on medical marijuana dispensaries than all eight years of his predecessor. There is little doubt that the defense industry has a comfortable relationship with the government either: we spend as much on buying their weapons and systems as we spend on social security, and no president after Eisenhower has failed to involve the US in some military engagement or war (most of which were entirely unnecessary).

It is not that democracy is discredited, but that we question whether we even have a real democracy anymore. If your only choices are "far right" and "not so far right," does your vote really count? One has to look to the extreme minorities, third parties and independents, to find anything that could be called "left wing" by any reasonable standard.

I place the beginning of valid questions about American democracy in the 1970s. That was when the Democrats began catering to big business just like the Republicans, and it was in that decade that we (probably coincidentally) saw the beginning of paramilitary law enforcement. It was also the decade that saw the beginning of explosive growth in executive branch power (once the dust from the Nixon affair settled, anyway), which at this point has come to mean "when the president has it in for you, you're dead." As an example, it was in the 1970s that the attorney general's office gained the power to declare drugs to be illegal without having to wait for the wheels of democracy, and to arrest and prosecute people for possessing those drugs.

So can you really blame us for questioning the democracy of the United States? It seems like the only democratic processes that matter anymore are those that decide which set of big businesses will receive help from the government.

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

#122

Post by mpyne » Thu, Jan 17, 2013, 6:52 PM UTC

mindslight wrote: post #115

JumpCrisscross wrote: post #91

Earlier quoted context omitted.

" 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. " You just made a value judgment there, morally evaluating one form of lawbreaking over another, structurally similar, one. The point of democracy is to have such deba…

> (given that the activity has already been put in the domain of law versus free markets). However, it is important to realize that in the case of computer networks, "the law" hasn't done the requisite work to analyze the domain and create appropriately scoped proscriptions. Instead, it has taken the expedient way of making everything illegal unless explicitly allowed (with possible three decade sentence), and then l…

> Instead, it has taken the expedient way of making everything illegal unless explicitly allowed

That is not at all true and hyperbole does not help anyone's argument.

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

#123

Post by pdonis » Thu, Jan 17, 2013, 6:56 PM UTC

rayiner wrote: post #118

pdonis wrote: post #116

Earlier quoted context omitted.

You're assuming things about the nature of the equilibrium that I don't think you can assume. I'm assuming that the "payoff matrix" for the two-person interaction has the same general form as the Prisoner's Dilemma matrix does, yes, which means that the Nash equilibrium, which is mutual defection, is also the outcome with the lowest aggregate payoff summed over both players. Is that what you're referring to? If so, I…

You're extrapolating from the payoff matrix for a two-person interaction to the equilibrium behavior of millions of people. You're also assuming rational actors, etc. You're making a mountain of assumptions here.

The equilibrium behavior of millions of people is just the aggregate of the behavior of individuals in small-scale interactions. A better objection would be that not all small-scale interactions can be modeled as two-person games.

Yes, I'm assuming "rational" actors, in the sense that they respond to incentives in a way that can be modeled by game theory. But that's not actually a very extravagant assumption. In particular, it does not entail that "rational" actors have to be conscious of the incentives they are responding to. I think many people who respond "rationally" to Prisoner's Dilemma-type incentives are not actually conscious of them; that's what I meant by my comment about tribal instincts. For example, saying that people punish defectors for emotional reasons rather than coldly calculated rational ones misses the point, because the emotions evolved in response to the same sorts of game theoretic incentives.

If you really object to the "rationality" assumption, then you need to come up with a better one. Attempts to do that (I'm thinking, for example, of the work of Kahneman and Tversky) often end up showing that the incentives involved are more complicated than we thought, not that we respond "irrationally".

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

#124

Post by mpyne » Thu, Jan 17, 2013, 6:57 PM UTC

atas wrote: post #107

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?

It's not the job of the prosecutors to only prosecute those who could individually threaten democracy all by themselves.

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

#125

Post by mpyne » Thu, Jan 17, 2013, 7:01 PM UTC

bcoates wrote: post #11

The one objection I have to Kerr's otherwise excellent article is that he entirely ignores the policy aspect of Prosecutorial discretion. Lots of people openly violate federal criminal laws. An enormous number of them, like Swartz in this case, do so non-openly but in a way that a trivial amount of investigative effort would reveal. The vast majority of them are not charged. This selective prosecution is a de facto p…

No offense but it's hard to call this "selective". If Aaron had simply given up during one of the first few roadblocks put up that would have been the end of it. No calls to the police, no charges, no nothing.

MIT didn't even know it was Swartz until he stupidly re-entered the network closet for the second (or third?) time and finally got caught by the police that MIT had to make special arrangement to have standing by.

If you make yourself the object of a inter-agency sting operation then it's a pretty fair bet that there might just be charges coming en route when you get caught.

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

#126

Post by pdonis » Thu, Jan 17, 2013, 7:06 PM UTC

btilly wrote: post #117

pdonis wrote: post #106

Earlier quoted context omitted.

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…

#1 actually is The only point of punishing Aaron is to deter him which means both that there is no point in punishing Aaron beyond the level of deterrence, and that as long as increased punishment increases deterrence, there is a point in increasing punishment. The point being that deterrence is not a binary yes/no. Even if tossing Aaron in jail will not stop him, tossing him in jail for 6 years delays his next offen…

deterrence is not a binary yes/no

That's true, but it doesn't change the argument. Just change D to the minimum punishment that will provide an acceptable level of deterrence. The same logic goes through. (Technically, yes, you now can allow P >= D instead of forcing P = D, but that doesn't matter if D > R.)

Therefore if #2 limits punishment below the absolute maximum from #1, you can still satisfy all of the principles at once.

Not if #2 limits punishment below the minimum that will provide a acceptable level of deterrence. See above.

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

#127

Post by mpyne » Thu, Jan 17, 2013, 7:15 PM UTC

gknoy wrote: post #57

bambax wrote: post #54

> If we don’t want a world in which prosecutors have these powers, we shouldn’t just object when the defendant in the crosshairs is a genius who went to Stanford, hangs out with Larry Lessig, and is represented by the extremely expensive lawyers at Keker & Van Nest. We should object just as much — or even more — when the defendant is poor, unknown, and unconnected to the powerful. To do otherwise sends an extremely t…

Frankly, I do care that many people are jailed in a degree which I consider excessive - and I imagine most of us here do as well. We just haven't had a concrete rallying point until now.

Yes we did. We had one when Aaron Swartz was still alive but on charges. The consensus was pretty much that he'd finally actually done something legitmately illegal, so if people here really were that worried about felony this vs. misdeameanor that, or the legal process in general, then they'd had plenty of time to do something about it.

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

#128

Post by mpyne » Thu, Jan 17, 2013, 7:18 PM UTC

ep103 wrote: post #114

gavinlynch wrote: post #111

"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." Honest question, curious about response: I get your general point about "breaking rules", but do you think it needs to be taken literally to the poin…

Yes to all of the above questions. As to the specific one about breaking rules vs laws, a moral or patriotic individual has a civic duty, in a democratic society, to disregard or oppose rules and laws which they believe to be immoral or wrong. Hackers, of all people, should know this.

> a moral or patriotic individual has a civic duty, in a democratic society, to disregard or oppose rules and laws which they believe to be immoral or wrong

No offense but if you believe that only thing binding on people is moral imperatives, then you don't believe in a democratic society, you believe in something closer to an anarchical one.

The whole point to a democratic society is that the people set the rules, but there are still rules. You're talking about something else.

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

#129

Post by hachiya » Thu, Jan 17, 2013, 7:21 PM UTC

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.

It's actually criminal - known as murder.

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

#130

Post by mstefanko » Thu, Jan 17, 2013, 7:28 PM UTC

fatbird wrote: post #49

javajosh wrote: post #39

Earlier quoted context omitted.

>If Ortiz or Heymann are fired or resign under pressure, the only signal that really sends to other prosecutors is that mob justice is effective for those with a mob at their backs. It is this kind of argument that seeks to undermine the call to action mentioned in the (rather brilliant) grandpost. Unfortunately, it is often the case that if any action at all is to take place, it must be drastic. Subtle actions tend…

I don't care if Ortiz suffers an unjust end to her career. She'll still be alive. And I'm not suggesting the problem is that the action is too drastic. It's that the action sends the wrong message. The most likely outcome of Ortiz getting fired is that prosecutors are more cautious about bullying the well-connected; they'll judge each defendant on the likelihood of their martyrdom and act accordingly. It won't make d…

I completely agree with the thought process here, and changing the incentives.

Not sure why you seem so against her losing her position though. As much this is the sort of thing prosecutors do on a regular basis, they shouldn't be. Why is she more infallible than you or I. I don't think her losing her job will send a wave of change through the system, a lot more has to take place in order for any of that to come to fruition. As much as I think people are focusing on the wrong issue here, seeking retribution through ending her career. Her callous attitude toward the case and toward punishments in general has not helped. But even if all prosecutors act the same, this is just a case that opened a lot of eyes to it. Is there no grounds or merit in the thought of letting her go. If I fuck up at my job, I could be on the chopping block to. As much as letting her go will do very little in the grand scheme of things. Leaving her there and doing nothing would also send a message to other prosecutors and to the current angry mob of people.