
Letter to Carmen Ortiz about Aaron Swartz - payne92
http://blog.payne.org/2013/01/30/letter-to-carmen-ortiz-about-aaron-swartz/
======
betterunix
Hm...

"It is clear Swartz did something wrong and should have been punished"

"He didn’t access something he wasn’t supposed to"

"Swartz did not destroy or damage data or infrastructure"

See, maybe I am just confused about the meanings of words here, but if Aaron
did not access anything he was not supposed to access and did not destroy or
damage anything, what exactly is it that he did wrong? Who gets to define the
upper bound on how many articles a person is supposed to access, or what
counts as an "appropriate" or "acceptable" method of utilizing a JSTOR
subscription?

Aaron was the victim here; his suicide was shocking and brought that fact to
our attention, but if he were alive today he would still be the victim. I
called this a senseless prosecution when I learned about it months before his
death. Aaron did nothing wrong, and he deserved no punishment.

~~~
rayiner
> See, maybe I am just confused about the meanings of words here, but if Aaron
> did not access anything he was not supposed to access and did not destroy or
> damage anything, what exactly is it that he did wrong?

Continuing to access MIT's network after MIT tried to get him to stop.

> Who gets to define the upper bound on how many articles a person is supposed
> to access, or what counts as an "appropriate" or "acceptable" method of
> utilizing a JSTOR subscription?

Something called behaving like a reasonable person. The scope of a license is
implied by the nature of the license. If JSTOR gives you permission to access
journal articles for academic purposes, it's outside the scope of the
permission to download them wholesale with intent to distribute them. Nobody
needs it spelled out to them that this is the case--it's obvious from the
nature of the transaction.

Disclaimer: I'm not justifying the prosecutor's actions. But it's possible to
support what Aaron did and think the prosecutor overreached without degrading
the argument to a hyper-technical and willfully blind defense of how he didn't
actually do anything wrong.

~~~
betterunix
"Continuing to access MIT's network after MIT tried to get him to stop."

I am not really seeing the _moral_ argument there. MIT's network is designed
to be open; a ban on a MAC address is, on such a network, little more than a
polite request to not continue your access. Being rude by ignoring polite
requests is not morally wrong.

As for the law, all I can say is that there are an awful lot of criminals in
this world if accessing a network that tries to block your computer is a
crime. If the law criminalizes a common behavior, then the law itself is what
is wrong.

"behaving like a reasonable person"

How conservative of you. I hear there are some lovely caves that people used
to live in, until some unreasonable person had a "better" idea (I wonder if
you would have made an argument for punishing him -- after all, not living in
caves might disrupt the social order).

"If I let you come apple picking in my orchard, you can't bring in a fruit
truck and some day laborers and strip the trees bare."

You are comparing apples to universal Turing machines. Your comparison is
actually that bad -- you might as well be talking about the superbowl than
Aaron Swartz.

Aaron did not strip anyone or anything. He prevented nobody else from using
JSTOR, nor did he stop anyone from reading the articles he downloaded, nor
from using the network, nor from using the closet where he hid his laptop. _He
caused no measurable damage to anyone or anyone's property_ at any point in
the JSTOR incident.

"If JSTOR gives you permission to access journal articles for academic
purposes..."

...then I should be free to use those articles for any purpose, because JSTOR
has no claim to them or to the knowledge they contain. What gives JSTOR the
_moral right_ to tell anyone what they are allowed to do with the articles
JSTOR provides to them? Sure, we have this thing called copyright that emerged
from British attempts to censor books in the age of printing presses (I wonder
if the Chinese firewall will lead to the creation of a similar law), but
copyrights are in no way related to modern senses of morality or justice --
copyrights are just a way for the government to promote a particular class of
business, and that is all they have ever been about in the United States.
"Right" and "wrong" are no more relevant to copyright than they are to parking
in a loading zone.

"nobody needs it spelled out to them that this is the case."

That is because prior to the attack on Aaron Swartz, nobody thought that
automatically downloading scientific articles on a university network would
ever warrant the attention of federal prosecutors. Now we know: don't you dare
download articles using any software other than your web browser, and don't
you dare do so if you ever suggested that those articles should be shared
freely on the Internet, or else you'll face a long and expensive prosecution
by the US government.

~~~
rayiner
> I am not really seeing the moral argument there. MIT's network is designed
> to be open; a ban on a MAC address is, on such a network, little more than a
> polite request to not continue your access.

MIT's network is a private network and they have complete authority over who
gets to access it, in a legal sense and a moral sense. It's their prerogative
to extend access to anyone except specifically chosen people. In our society,
we do not treat "get off our lawn" and the equivalent as a "polite request."
We treat it as an enforceable demand.

> How conservative of you.

Yes. We live in a society of rules and borders and boundaries. We like those
things, so much that we often enforce them with guns (and cheer on those who
do). It is not your prerogative to flout them as you please, but your burden
to convince us which of those boundaries are unnecessary so we legislate
accordingly.

> What gives JSTOR the moral right to tell anyone what they are allowed to do
> with the articles JSTOR provides to them?

JSTOR at the very least has a moral right to control how he used their private
service to download the articles.

> copyrights are in no way related to modern senses of morality or justice

I disagree. I think most people believe that creators are entitled to control
the distribution of their work. I think the prevailing mindset is that a
digital creation should not be treated differently, for ownership purposes,
than a physical creation. Do people download anyway? Sure. But people also
sneak into movie theaters. That doesn't mean they feel that theater owners
don't have a moral right to exclude non-paying viewers.

To the extent that I think the law is out of step with the modern sense of
justice is proportionality. People think (and I'd argue rightfully so), that
downloading a movie should warrant the kind of slap on the wrist (if anything)
that sneaking into the theater to watch that movie would warrant. Not huge
dollar fines and possible jail time.

Swartz's case really boils down to that: the trespassing charge was dropped,
while the charge for accessing the network was not. He was trespassing, and he
was accessing the network illegally, but if one was minor enough to be dropped
the other should have been treated similarly.

~~~
betterunix
"MIT's network is a private network and they have complete authority over who
gets to access it, in a legal sense and a moral sense"

Then as I said, there are an awful lot of criminals in our society, because
people routinely access private networks without permission or in violation of
requests to discontinue their access.

"In our society, we do not treat "get off our lawn" and the equivalent as a
"polite request." We treat it as an enforceable demand."

Maybe so, but it is also technically trespassing to cross railroad tracks
outside of designated grade-level crossings. In my town, there was a brief
period where the police attempted to enforce that, and it was found to be
absurd and counter-productive to do so: people from every level of society
walk across the tracks without hesitation, without thinking about the
misdemeanor offense they are committing, and often in plain view of the
police. In almost all cases, they are causing no damage to anyone, and so the
police do not care -- it benefits nobody to mindlessly arrest everyone who
technically violates some law.

"JSTOR at the very least has a moral right to control how he used their
private service to download the articles."

Sure, because they own their computers; they are free to restrict access,
disconnect from the Internet, or encrypt everything without releasing the
keys, and that is fine. They chose not to do so, so why should we care if they
do not like the particular program Aaron used, or his particular plans for the
documents he downloaded?

"I think most people believe that creators are entitled to control the
distribution of their work."

I doubt that; outside of one person who works for the music industry yet to
meet anyone who shows even one millisecond of hesitation when it comes to
sharing copies of photos, music, movies, written documents, or any other
creative work. Most people are perfectly willing to sing "Happy Birthday to
You" in public, without spending any mental effort on the idea that it is
copyrighted or that the copyright holder forbids public performances.

The only moral issues people have with copyright infringement are when (a)
artists are "ripped off" by it (but that is usually something the copyright
holders are doing, and is irrelevant to Aaron's case anyway) or (b) when
someone claims credit for work they did not do (equally irrelevant here).
Copyright as a system has nothing to do with either of these: artists and
creative people are routinely "ripped off" without any copyright violation
occurring, and copyright does not require attribution (and creative people are
often not credited for their work under the copyright system). It has nothing
to do with morals, it is a legal framework for promoting businesses that were
important to society _in the 18th century_. It is as morally relevant to most
people as a bill meant to promote the laying of fiber optic lines to built
Internet infrastructure.

"People think (and I'd argue rightfully so), that downloading a movie should
warrant the kind of slap on the wrist"

No they don't; most people think downloading a movie is fine because they want
to watch it, and that it is just the fat cats in Hollywood who would care
about stopping them. Hollywood has desperately pushed for a moral basis for
copyright, but has largely failed: it's too complex and most people cannot be
bothered.

------
ChuckMcM
Thank you Andy, that was a well reasoned and clear statement of how I and
others feel about this case. You clearly put a lot of effort into composing
that letter and it reflects it. I can only hope that it finds its way into the
thought processes of the policy makers over at the Justice department.

------
kdude63
Everyone regards Carmen Ortiz as this heartless evil witch, and this post is
more or less defending her.

I was expecting more of a response from the community over the course of
almost an hour.

~~~
mpyne
See, that's why I don't like these lynch mobs that form. He wasn't "defending
her" as much as empathizing with her role and duties and using grown-up
language to debate grown-up topics like a bunch of goddamn grown-ups.

If treating her like an adult instead of calling for her immediate resignation
is defending her then I'm not sure what to say... how can you have sane
debates with ideologues?

FWIW I have quibbles with the letter (e.g. it's entirely within the purview of
USSS to investigate "computer crimes" due to historical circumstances) but
those are just quibbles, minor areas of disagreements where sane people simply
might not agree.

I agree that I expect approximately zero to come of his letter, as least as
far as concrete action is concerned. _But_ , his letter is exactly the kind of
thing that is needed to appeal to those who really can make a big difference
in how computer crimes are treated (as opposed to pitchforks and shrieking).

~~~
wmil
> But, his letter is exactly the kind of thing that is needed to appeal to
> those who really can make a big difference in how computer crimes are
> treated (as opposed to pitchforks and shrieking).

I actually disagree completely. Ortiz is a US Attorney. Her office is entirely
aware of the legal issues. Trying to calmly inform them is a ridiculous waste
of time.

For some reason she decided to launch a hyper agressive prosecution against
Swartz. I'm guessing she wanted a big public win to help her political career,
and she figured an introverted nerd was an easy target.

Under those circumstances pitchforks and shrieking are the only thing that can
stop this from happening in the future.

~~~
doomicon
Is Andrew Payne naive enough to think he is providing a U.S. Attorney
information that she didn't already have? Providing the Chief of the "Cyber
Crimes" unit information he didn't already have?

That is why this letter is bunk. Federal Attorney's and Prosecutors are NOT
naive to cyber crime, law, punishment, etc. They've been to law school,
studied case law, prosecuted cases, worked with law enforcement.

Andrew, stick to investing brother :-)

~~~
ScottBurson
As taxpayers, we all have the right to express our opinions about how our tax
money is being spent. That's what this letter is about -- and very well done,
too, I think -- not providing information that Ortiz might have somehow
overlooked. Yes, it does summarize the facts of the case as Payne sees them,
but that's just for context.

------
Osiris
It's refreshing to see someone engage at this level of dicussion, using
factual backing of clearly thought-out arguments and concluding with sensible
requests.

Just as the author stated, however, I doubt it will have any impact, though I
would certainly hope that it does.

~~~
rhizome
In arguing that the overbroadness of the CFAA was something to be treated
gingerly, I fear that it is more like trying to make a point to a law
enforcement officer that gun triggers are too easy to pull. "Yeah, and...?"

------
huherto
In case you don't know who Andy Payne is. (like me)

<http://www.payne.org/index.php/Payne.org_Wiki:About>

------
arbuge
"I believe that you and Mr. Heymann were doing “what any good prosecutor would
do"

Disagreed. This is not what good prosectors should do. Maybe substituting "the
average US prosecutor" for "any good" would be more accurate. But good
prosecturs don't play the system by extracting plea bargains and guilty pleas
under the threat of horrific penalties at trial.

------
gesman
Carmen Ortiz & Co will appreciate these letters only if they'll be printed on
a soft, white, quality paper.

------
mtp0101
Disclaimer: I am a dumb college freshman

Does this guy actually expect his letter to be read by Ortiz? It seems
ridiculous to me that this guy thinks his opinion regarding the case matters
at all. But now I know who he is and the URL of his website, so perhaps his
more subtle goal was achieved.

~~~
youngerdryas
So you think this guy sent this letter boost his own image? As you will no
doubt soon find out, the world is not black and white, but excruciatingly
mottled grey. Ortiz, while a lovely pincushion, is the symptom not the
problem. This was standard procedure. Now I will be at every protest if she
runs for higher office, not because I think she is Satan, but because it will
offer an opportunity to bring attention to Aaron's cause which stands on its
own merit.

------
frere
Your post assumes this person is anything other than a political agent in a
broken system. Quaint.

~~~
frere
Wow, Carmen must have 500+ HN pts. I, apparently, was wrong in my assumption
that she is in fact yet another political climber in a position that is famous
for being a jumping off point for higher office. Obviously a democrat
(appointed by Obama), her example of Aaron will surely win her points with the
Hollywood/DMCA crowd. Please, downvote me again for a view that, obviously,
must be sooooo far off the truth.

