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

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

#131

Post by fatbird » Thu, Jan 17, 2013, 8:07 PM UTC

mstefanko wrote: post #130

fatbird wrote: post #49

Earlier quoted context omitted.

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 f…

I'm not against her losing her position, I just think it's a distraction from the real issue. Posters above, like javajosh, think terminating her will act as a catalyst for change; I don't.

At this point, probably the best thing to come out of this so far is Lofgren's bill to decriminalize TOC violations.

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

#132

Post by btilly » Thu, Jan 17, 2013, 8:38 PM UTC

pdonis wrote: post #126

btilly wrote: post #117

Earlier quoted context omitted.

#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 princip…

Where are you pulling your notion of "an acceptable level of deterrence" from?

If your willingness to persevere exceeds the willingness of society to punish you, then at some point society will be pushed to think hard about the issue. That's the whole point of civil disobedience. But those conversations need to happen in the realm of politics - not the courts.

In short, the courts should not try to preemptively block all possibility of civil disobedience by subjecting people a sufficient pain point to prevent it happening. Judges need to stay within the limits set by maximum sentences and sentencing guidelines, even if the judges believe that this punishment is not enough to deter the unwelcome action.

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

#133

Post by dchichkov » Thu, Jan 17, 2013, 9:05 PM UTC

jacquesm wrote: post #74

dchichkov wrote: post #73

Earlier quoted context omitted.

Or maybe because of some bug somewhere on the way? Like congested campus wireless breaking down? Unless you've received a notification from administrator, there is no way of telling for sure, really. Just guesswork. And there are no physical doors on the network. So they can not be slammed in your face. All that you can observe is dropping connections, negative acknowledgements, server messages, etc.

I understand you're going for the 'plausible deniability' angle, if that is not correct then please say so. The point is that we're all intelligent enough to see the difference between that and what actually happened and that you may want to use such a thing in a defense even if you know better. I certainly do know better.

Not exactly. I just really like to see that story described from a perspective of an engineer or researcher, with technical description of what exactly was done and best guess, why some particular method was used.

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

#134

Post by anigbrowl » Thu, Jan 17, 2013, 10:06 PM UTC

temphn wrote: post #80

anigbrowl wrote: post #61

Earlier quoted context omitted.

A hacker or an entrepreneur is someone who breaks rules to create something. 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…

I'd very strongly disagree there. Read the history of Google, and you'll see just how many people they pissed off in scraping the web. Launching snippets risked "copyright infringement" on a massive scale. Google Books: ballsy scanning without permission, opt-outs for individual authors. Google Maps Streetview: ditto. Gmail: ballsy advertising based on machine learning with individual messages. Talk to anyone there i…

Thee's a reason that I qualified my remark by saying 'a search engine built on pagerank.' You'll recall that a lot of other things they did resulted in expensive legal wrangles. Your argument is empty.

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

#135

Post by anigbrowl » Thu, Jan 17, 2013, 10:06 PM UTC

fnordfnordfnord wrote: post #97

temphn wrote: post #80

Earlier quoted context omitted.

I'd very strongly disagree there. Read the history of Google, and you'll see just how many people they pissed off in scraping the web. Launching snippets risked "copyright infringement" on a massive scale. Google Books: ballsy scanning without permission, opt-outs for individual authors. Google Maps Streetview: ditto. Gmail: ballsy advertising based on machine learning with individual messages. Talk to anyone there i…

The CFAA, wire fraud statutes could have been applied to Google with the same type of legal-mental gymnastics.

Nonsense.

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

#136

Post by pdonis » Thu, Jan 17, 2013, 10:49 PM UTC

btilly wrote: post #132

pdonis wrote: post #126

Earlier quoted context omitted.

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 princip…

Where are you pulling your notion of "an acceptable level of deterrence" from? If your willingness to persevere exceeds the willingness of society to punish you, then at some point society will be pushed to think hard about the issue. That's the whole point of civil disobedience. But those conversations need to happen in the realm of politics - not the courts. In short, the courts should not try to preemptively block…

If your willingness to persevere exceeds the willingness of society to punish you

This is exactly the situation that I don't think Kerr's article addresses. He appears to assume that it will always be possible to deter civil disobedience with some punishment that is within reasonable bounds. The question by gnosis that started this whole subthread was basically, what if that assumption is not true? There are only two options at that point:

(1) The punishment goes beyond reasonable bounds, because deterrence is given priority over being reasonable; or

(2) The punishment remains reasonable, so it doesn't deter, so the issue keeps coming up; and at some point, as you note, it will end up having to be addressed politically.

Judges need to stay within the limits set by maximum sentences and sentencing guidelines, even if the judges believe that this punishment is not enough to deter the unwelcome action.

You are basically trying to say that #1 should not be pursued, and I agree with you. However, note that staying within the maximum sentencing limits is different from staying within "reasonable" limits on punishment. In the Aaron Swartz case, the maximum sentence allowed by the law and the sentencing guidelines was way beyond reasonable by almost anybody's estimation.

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

#137

Post by spin » Thu, Jan 17, 2013, 10:58 PM UTC

twoodfin wrote: post #87

spin wrote: post #75

Earlier quoted context omitted.

> unsubstantiated hand waving about how the system is "bought." On December 16, 2005, The New York Times reported that the Bush administration was spying on American citizens without a warrant. Most of the major Telecoms were participants in this massive, warrantless eavesdropping system. So the EFF and the ACLU filed lawsuits against these telecoms. Federal courts began ruling against the telecoms (Yay! Democracy in…

On December 16, 2005, The New York Times reported that the Bush administration was spying on American citizens without a warrant. Unintentionally: Deliberately (albeit perhaps inadequately) avoiding purely domestic intercepts and destroying them when found. Subsequent legislation has attempted to make such intercepts even less likely and more transient. That's a pretty important qualification. Why didn't you mention…

I don't see how that's relevant to my main point: Important People can purchase immunity. The laws simply don't apply to them. The telecoms broke the law, then purchased retroactive immunity after the fact.

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

#138

Post by rayiner » Thu, Jan 17, 2013, 11:15 PM UTC

pdonis wrote: post #123

rayiner wrote: post #118

Earlier quoted context omitted.

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 part…

> The equilibrium behavior of millions of people is just the aggregate of the behavior of individuals in small-scale interactions.

The dynamics of a complex system cannot in any sense be described by simply aggregating the individual small-scale interactions. This is a huge unjustified assumption.

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

#139

Post by pdonis » Thu, Jan 17, 2013, 11:42 PM UTC

rayiner wrote: post #138

pdonis wrote: post #123

Earlier quoted context omitted.

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 part…

> The equilibrium behavior of millions of people is just the aggregate of the behavior of individuals in small-scale interactions. The dynamics of a complex system cannot in any sense be described by simply aggregating the individual small-scale interactions. This is a huge unjustified assumption.

The dynamics of a complex system cannot in any sense be described by simply aggregating the individual small-scale interactions.

In many cases it can, so this statement as it stands is much too strong. For example, a country's economy is a huge game of mutual cooperation whose dynamics can be perfectly well described by aggregating a huge number of two-person games (or perhaps "two-player" would be better since one player is often an organization, like a company or the government, rather than a single person)--or in some cases perhaps games with larger numbers of players, but still small-scale.

There may be cases where a system's dynamics can't be described this way; can you give a specific example?

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

#140

Post by btilly » Fri, Jan 18, 2013, 1:41 AM UTC

pdonis wrote: post #136

btilly wrote: post #132

Earlier quoted context omitted.

Where are you pulling your notion of "an acceptable level of deterrence" from? If your willingness to persevere exceeds the willingness of society to punish you, then at some point society will be pushed to think hard about the issue. That's the whole point of civil disobedience. But those conversations need to happen in the realm of politics - not the courts. In short, the courts should not try to preemptively block…

If your willingness to persevere exceeds the willingness of society to punish you This is exactly the situation that I don't think Kerr's article addresses. He appears to assume that it will always be possible to deter civil disobedience with some punishment that is within reasonable bounds. The question by gnosis that started this whole subthread was basically, what if that assumption is not true? There are only two…

I agree with most of what you say, but with two quibbles.

The punishments suggested by sentencing guidelines encapsulate what precedent says is "reasonable limits". Thus the sentencing guidelines in some sense are the definition of what our society thinks of as reasonable limits.

That said, you go on to say that that sentence is way beyond reasonable in almost anybody's estimation. If your circle contains lots of people who understand technology, that is obviously true of those you know. If your circle expands to include random lawyers, judges, politicians, and the uneducated public, there will be lots of people who think those limits are reasonable. That is how they came to be what they are.