Fixing the worst law in technology • Hacker News Board

Re: Fixing the worst law in technology

#41

Post by rada » Mon, Mar 18, 2013, 11:01 PM UTC

AnthonyMouse wrote: post #25

anigbrowl wrote: post #20

Earlier quoted context omitted.

OK, but any journalist writing on legal matters should know that the statutory maximum is not a good guide to the likely sentence in the event of a conviction. To mention the statutory maximum without any qualification is sensationalism masquerading as cold fact. By that standard I could say 'X has been arrested for littering - he could face the death penalty!!' Well, it's possible - until X has been charged with som…

>To mention the statutory maximum without any qualification is sensationalism masquerading as cold fact. If may be misleading, but strictly speaking it's factually accurate. That is the maximum penalty -- and as long as it is, people who don't like it are going to report it. If you want them to stop, amend the law so that minor offenses don't fall under the same section as major offenses. For a law to carry felony pe…

"Strictly speaking", in Minnesota where I am currently located, oral sex is prohibited, and is punishable by up to a year in jail and a $3,000 fine. Would you seriously defend an article that discusses this as "factually accurate"? Honestly, people keep going through incredible mental acrobatics to justify Aaron Swartz's actions.

Re: Fixing the worst law in technology

#42

Post by anigbrowl » Mon, Mar 18, 2013, 11:03 PM UTC

betterunix wrote: post #33

anigbrowl wrote: post #20

Earlier quoted context omitted.

OK, but any journalist writing on legal matters should know that the statutory maximum is not a good guide to the likely sentence in the event of a conviction. To mention the statutory maximum without any qualification is sensationalism masquerading as cold fact. By that standard I could say 'X has been arrested for littering - he could face the death penalty!!' Well, it's possible - until X has been charged with som…

"OK, but any journalist writing on legal matters should know that the statutory maximum is not a good guide to the likely sentence in the event of a conviction" It is, however, frequently used to intimidate people into giving up their rights. There is a reason that more people go to prison each year than could possibly be sentenced by a jury of their peers, and the maximum penalties allowed by the law is one of them.…

Maybe if journalists reported the law more assiduously instead of only mentioning the maximum sentence, that particular intimidation tactic wouldn't work as well, ever think of that?

Re: Fixing the worst law in technology

#43

Post by nitrogen » Mon, Mar 18, 2013, 11:08 PM UTC

anigbrowl wrote: post #40

nitrogen wrote: post #35

Earlier quoted context omitted.

But most won't, because if they said 'the statutory maximum is 25 years but most convictions draw sentences of less than 5 years,' people would not think it's that big of a deal. Listing only the maximum is a good thing because phrasing the range of penalties as you suggest is a variant of the "Door in the Face" technique. In absolute terms, 5 years may seem incomprehensibly ridiculous for what amounts to digital gra…

No, I don't think they'll think that at all. Phrasing the range of penalties would simply add information about the outcome of actual cases, which are public record and no less factual than the statutory maxima. If you think were' better off having less information, then I'm out of this conversation.

I'm going to take the cynical position in this discussion (I'll note that I often do the opposite) and say that people who want to be informed will be informed, while everyone else needs to be given the correct rhetoric to produce the desired outcome for society. Politicians and bureaucrats know how to frame a discussion to their advantage; focusing on the statutory maximums is a way to counteract that framing.

Re: Fixing the worst law in technology

#44

Post by gmcrews » Mon, Mar 18, 2013, 11:08 PM UTC

The author of the article has overlooked something ancient and obvious. Jury nullification (http://en.wikipedia.org/wiki/Jury_nullification) is exactly for laws such as this one. It's been part of English-based common law for many centuries. If the Swartz case had reached trial and I had been a juror, the chances of me nullifying the "worst law in technology" would have been near 100%. I'm sure most of us feel the same way. If I'm right, the problem is not as bad as the author makes it seem.

Re: Fixing the worst law in technology

#45

Post by anigbrowl » Mon, Mar 18, 2013, 11:13 PM UTC

danso wrote: post #37

anigbrowl wrote: post #29

Earlier quoted context omitted.

No. I said arrested for littering. Until a person is charged, they could conceivably be charged with a much more serious offense. My point is that it would be sensationalist and wildly misleading to focus on that angle, just as it is sensationalist and wildly misleading to focus on the statutory maximum sentence for a particular crime while ignoring the fact that it is almost never applied.

Yes, but in both scenarios the OP refers to -- Aaron Swartz's and Matthew Keys's -- indictments have already been handed down by a federal grand jury, so it's unlikely the charges will get worse. Second, you're imposing an unrealistic burden upon reporters. The OP in this case is simply stating the facts: that the charges that Keys faces have a sky-high penalty -- which is not the case for littering, to use our examp…

OP's reporting on the statute and its enforcement is inaccurate and IMHO worthless. I managed to turn up statistics on average sentence length under the CFAA within a couple of minutes. It's plain that the guy didn't even do basic research; his article doesn't even list the charges or link to the indictment (http://www.scribd.com/doc/130418853/Matthew-Keys-Indictment)

By contrast, look at the NYT's report on the story: http://www.nytimes.com/2013/03/18/technology/outcry-over-com... This raises all the same issues, but in much greater detail and with meaningful context.

Re: Fixing the worst law in technology

#46

Post by kiyoto » Mon, Mar 18, 2013, 11:22 PM UTC

anigbrowl wrote: post #9

Good god, this is stupid. The damage was trivial, yet he is threatened with two hundred and fifty thousand dollars in damages and up to twenty-five years in prison. Really? The prosecutor is seeking the maximum statutory penalty for this? Somehow I doubt that. All the Administration needs to do is to rely on the ancient common-law principle called the “rule of lenity.” This states that ambiguous criminal laws should…

>This is lousy journalism, which misleads the audience in an attempt to pander to their sensibilities. There is no way the author of this piece ran it past a lawyer.

Does a law professor at Columbia count as a lawyer? Because that's what the author of the piece is =)

Re: Fixing the worst law in technology

#47

Post by anigbrowl » Mon, Mar 18, 2013, 11:27 PM UTC

kiyoto wrote: post #46

anigbrowl wrote: post #9

Good god, this is stupid. The damage was trivial, yet he is threatened with two hundred and fifty thousand dollars in damages and up to twenty-five years in prison. Really? The prosecutor is seeking the maximum statutory penalty for this? Somehow I doubt that. All the Administration needs to do is to rely on the ancient common-law principle called the “rule of lenity.” This states that ambiguous criminal laws should…

>This is lousy journalism, which misleads the audience in an attempt to pander to their sensibilities. There is no way the author of this piece ran it past a lawyer. Does a law professor at Columbia count as a lawyer? Because that's what the author of the piece is =)

That makes his misrepresentation and manipulation of his audience even more reprehensible.

Re: Fixing the worst law in technology

#48

Post by hkhanna » Mon, Mar 18, 2013, 11:44 PM UTC

anigbrowl wrote: post #9

Good god, this is stupid. The damage was trivial, yet he is threatened with two hundred and fifty thousand dollars in damages and up to twenty-five years in prison. Really? The prosecutor is seeking the maximum statutory penalty for this? Somehow I doubt that. All the Administration needs to do is to rely on the ancient common-law principle called the “rule of lenity.” This states that ambiguous criminal laws should…

He did run it by a lawyer; he is a lawyer. A law professor, in fact, at Columbia. And he teaches 1L Criminal Law and one of the topics in that class is the "rule of lenity."

Professor Wu's suggestion that the Administration rely on the rule of lenity is not as off-base as you suggest. Although it's true that it is a rule for construing criminal statutes applied by courts, the administration needs to construe statutes, too, before they can decide whether to enforce them in specific situations.

Professor Wu is suggesting, I think, that the Administration should use the rule of construction that ambiguous criminal law should be read in favor of the defendant to say that it's too ambiguous to be enforced in Swartz-like cases in any principled way.

Re: Fixing the worst law in technology

#49

Post by jessaustin » Mon, Mar 18, 2013, 11:57 PM UTC

Does Matthew Keys deserve to mentioned alongside Aaron Swartz? Swartz's actions seem somehow more... noble. Both of them "abused" their access, but Swartz did so to make a political point about scientific knowledge, in the hopes of improving our society. I can't discern what Keys's motivations were in this case.

It's possible however that this makes Keys a "better" defendant, in that the law is clearly unjust even in his case.

Re: Fixing the worst law in technology

#50

Post by anigbrowl » Tue, Mar 19, 2013, 12:16 AM UTC

hkhanna wrote: post #48

anigbrowl wrote: post #9

Good god, this is stupid. The damage was trivial, yet he is threatened with two hundred and fifty thousand dollars in damages and up to twenty-five years in prison. Really? The prosecutor is seeking the maximum statutory penalty for this? Somehow I doubt that. All the Administration needs to do is to rely on the ancient common-law principle called the “rule of lenity.” This states that ambiguous criminal laws should…

He did run it by a lawyer; he is a lawyer. A law professor, in fact, at Columbia. And he teaches 1L Criminal Law and one of the topics in that class is the "rule of lenity." Professor Wu's suggestion that the Administration rely on the rule of lenity is not as off-base as you suggest. Although it's true that it is a rule for construing criminal statutes applied by courts, the administration needs to construe statutes…

Well, he knows more about it than I do, I'm sure, but I'm not persuaded by the argument he's presented here.

Put yourself in the shoes of the injured party, and ask yourself how you'd feel if people investigating your case told you not to worry about it, even though you had spend a lot of money on hardening your servers and even though losing control of your servers to the extent that people could post fake stories on your website kind of damages your standing as a major newspaper.

After reading the indictment, with Keys' encouragement to his co-conspirator to 'go fuck some shit up' I don't see how a prosecutor could do other than indict him. That does not mean the prosecution is trying to put him in jail for 25 years, and Wu knows that full well. 'Sharpie,' the anonymous member he corresponded with over IRC, did limit him(?) self to just joking around, posting the fake news story about 'Chippy 1337,' and I suspect that if caught he would receive only a misdemeanor charge. But for all Keys knew, he might have engaged in far more destructive acts.