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

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

#91

Post by JumpCrisscross » Thu, Jan 17, 2013, 1:33 PM UTC

jacquesm wrote: post #63

smacktoward wrote: post #28

Earlier quoted context omitted.

"As for the fetishization of 'democracy' in Kerr's post, sometimes elections produce good outcomes. But often the wisdom of crowds isn't so wise" Well, yes, but that's why we do the whole voting thing again after a period of time, rather than just once. Democracy isn't a means to ensure bad decisions won't get made, it's a means to ensure they can be un-made. "Many times, perhaps most times, the crowd votes after som…

Not everybody that engages in civil disobedience does 'the minimum', sometimes civil disobedience at the minimum level will be ignored and ineffective. 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…

"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 debates in an open, controlled forum. Yes, that forum can seem excessively slow. But there are very good reasons we don't want government to move at the hacker speed of everyone try their own thing (given that the activity has already been put in the domain of law versus free markets).

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

#92

Post by tptacek » Thu, Jan 17, 2013, 1:57 PM UTC

rsingel wrote: post #36

Orin is a good prosecutor (though retired). But let me drop two fine pieces of evidence to refute his statement that Aaron was going to put all of JSTOR into the public domain based on a manifesto. 1) Aaron's previous escapade was making PACER file available through huge downloads. Those files were all non-copyrightable and have become the basis of awesome open-source systems including RECAP and Justia. 2) Aaron had…

The docket suggests that 300,000 of those files were out of copyright. He downloaded over 4 million, didn't he?

The prosecution did in fact offer evidence that Aaron knew he was trespassing. The closet didn't have a sign, but the building had many.

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

#93

Post by pdonis » Thu, Jan 17, 2013, 2:28 PM UTC

btilly wrote: post #24

pdonis wrote: post #4

Earlier quoted context omitted.

Kerr says later on: "decades in jail would have been extreme overkill". So apparently he was willing to at least set some limits without even knowing the answer to his question. A little earlier he says: "I’ll defer here to the people who knew Swartz best, with whatever they think the right answer is. Would probation have been enough? A month of home confinement? Jail time?" Which also sets some bounds on what he tho…

I don't see him as inconsistent. I just think that he didn't state his full position in a single place. My understanding is that his full position follows from two principles: 1. The only point of punishing Aaron is to deter him, so there is no reason to punish him more than what would deter him. 2. There is a reasonable limit to what is a fair punishment for Aaron's actions, by no means should Aaron be punished more…

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 leave out #3 there's no problem; but Kerr specifically included #3 and talked like he thought it was important.

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

#94

Post by rayiner » Thu, Jan 17, 2013, 3:01 PM UTC

nitrogen wrote: post #65

andylei wrote: post #14

Earlier quoted context omitted.

aaron's mindset really is different from kerr's, and kerr's thinks his is "better" (i'm not really sure which side to take on this point). but regardless of that point, how should we expect the law to respond to someone like aaron? should we expect that people who intentionally break laws and practice civil disobedience not be punished? if so, why bother even having laws?

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-socially, I can call the other monkeys to put you in your place.

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

#95

Post by jivatmanx » Thu, Jan 17, 2013, 3:12 PM UTC

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 believe that there are two, related problems in the American democratic process. The most basic one is the power of incumbency and lack of competitive elections.

Turnover is at a historic low and getting worse. It's lower than in the Soviet Politburo, and most districts never have competitive elections. The last mid term was at least partially a reaction to that. However en-mass replacement is no better than perpetual incumbency, and blindly voting against everything is no better than being a rubber stamp. I think they're equally bad. To those that say it's worse - would it really have been bad if there had been congressional opposition to the Patriot Act and Iraq war from someone other than Bernie Sanders and Ron Paul?

To get better people, there needs to be rotation in office in a regularized fashion. Yes, that means Term Limits. I think limits on consecutive terms is a better than absolute limits. I.E. you can't run for the same seat in the election immediately following 2 consecutive terms, but can in the election immediately following. This solves the problem of incumbency without permanently barring good people. It's the system that was used in Greece and Rome, and was favored by many of the founding fathers.

It's even more helpful considering that currently, power in Congress and Senate is essentially based entirely on seniority.

--

Regarding Democracy vs. Law/Rights:

How do you suggest law and rights be strengthened? The staleness of congress is just leading to more and more use of executive power, more arbitrary and king-like rule.

If you want laws that are better and more followed, you need better people to write them, which is congress.

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

#96

Post by pdonis » Thu, Jan 17, 2013, 3:16 PM UTC

pseingatl wrote: post #33

Professor Kerr says we should forgive the prosecutors because “they all do it.” This is hardly appropriate and a slur on the many professional federal and state prosecutors who do not engage in these kind of tactics. The fact of the matter is that in the United States a trial over a supermarket slip and fall is more fair than a federal criminal trial. Federal trials are trials by ambush. A defense lawyer has no oppor…

He didn't say we should forgive the prosecutors. He said we should understand that the way the prosecutors handled this case was not an isolated incident. Maybe there are plenty of prosecutors that don't act this way, but there are also plenty that do.

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

#97

Post by fnordfnordfnord » Thu, Jan 17, 2013, 3:20 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…

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

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

#98

Post by czr80 » Thu, Jan 17, 2013, 3:20 PM UTC

sp332 wrote: post #84

czr80 wrote: post #83

Earlier quoted context omitted.

Since at the time the majority of people in South Africa were not allowed to vote, you could hardly call it a democracy.

The majority of people in ancient Greece couldn't vote either but they definitely had a democracy.

True, but you cannot use Nelson Mandela as an example of someone protesting from within a democracy. (Equally, you could not use a Greek slave either).

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

#99

Post by btilly » Thu, Jan 17, 2013, 3:20 PM UTC

pdonis wrote: post #93

btilly wrote: post #24

Earlier quoted context omitted.

I don't see him as inconsistent. I just think that he didn't state his full position in a single place. My understanding is that his full position follows from two principles: 1. The only point of punishing Aaron is to deter him, so there is no reason to punish him more than what would deter him. 2. There is a reasonable limit to what is a fair punishment for Aaron's actions, by no means should Aaron be punished more…

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.

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

#100

Post by pdonis » Thu, Jan 17, 2013, 3:22 PM UTC

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…

Yes, representatives represent districts, not the population as a whole. But the fact that a majority of voters voted for a Democratic representative for their district, yet the House as a whole has a solid majority of Republicans, indicates that the districts are highly gerrymandered rather than being apportioned in a way that reasonably reflects the population. And if you look at the maps of district boundaries, you find that yes, they are highly gerrymandered.