[Illychnosis]

People like Orin Kerr are part of the problem. Anyone associated with the DoJ can't see that the DoJ is the problem, not the Aaron Swartzes of the world.

"It is difficult to get a man to understand something, when his salary depends upon his not understanding it."

-Upton Sinclair

[zaidf]

Anyone associated with the DoJ can't see that the DoJ is the problem

Why? He is precise in what his post is doing: simply making an evaluation of whether the charges stack up with the law on the books. He neither promises nor tries to evaluate the legitimacy of the laws. I think that is perfectly fine and in fact I'd love if more qualified folks shared their specific interpretation of the law with minimal bias in either direction.

[michaelfeathers]

Here's the thing that we need to be aware of. I'm assuming that many of the readers of HN are programmers or have been programmers. The law is very literal, it is like code. But not everything in life is black and white.

Often I run into programmers who want want to think that all questions should have yes or no answers. Even if they don't, many of us have a deep sense that there is something right about seeing the world in terms of strict categorical statements.

Me? Well, as a programmer, citizen and human being, I'm suspicious of it. Deeply.

[roel_v]

"The law is very literal, it is like code."

(I have degrees in law & CS)

No, it's not, and it's the nr 1 mistake armchair lawyers across the internet are making in commenting on this case. Law is much more common sense than many people give it credit for; except it's common sense in a very different way than many people want it to be. (e.g., the bickering elsewhere in this thread on the intricate details of the facts and Orin's analysis of it).

[michaelfeathers]

Can you give us a bit more of your perspective on the case, esp. regarding the common sense view of it from a law perspective? I'd love to hear it.

[monsterix]

> "He neither promises nor tries to evaluate the legitimacy of the laws."

Which also implies that there is hardly any possibility for his analysis to be 'incorrect' because it is rooted to come out as correct within the provisions of existing laws.

Isn't that so?

[zaidf]

His analysis can still be incorrect. For example, other legal experts may disagree with his interpretation of blah law. This is why I think more, not less, somewhat emotion-free evaluation would be helpful.

If we learn the laws are far overreaching, it requires a different set of actions to attempt to change than if we find that the charges don't align with the law.

[andylei]

uh, definitely not.

his analysis is about whether the charges the prosecutors levied against him were reasonable, based on case law. if he misinterpreted established case law or the charges levied against aaron, his analysis certainly could be incorrect.

[danso]

Please realize that Kerr is tackling one issue at a time, in fact, I think he is promising a second post.

This first post is to show how the charges fit the existing law...This is to tackle the first question of, Is what Aaron Swartz did illegal?

This is a wholly different question than whether the prosecution was justified in its aggression, which will be the topic of his second post.

But whether something was illegal or not, yes, generally, we want that question to be based on existing laws. You do not want to go to court, either as a defender or prosecutor, on the grounds that your case will be decided on what's made up during trial.

---

Someone noted that many HN readers are programmers and seem to have problems with seeing the world as too black and white...I'm surprised at how hard it is for professionals whose work is heavily governed by the concept of orthogonality not being able to understand why people like Kerr can dissect this controversy into two separate components. Both components, related as they are, are worth considering and involve different arguments and evidence.

[defrost]

It's your analysis that's incorrect.

[rbehrends]

I think you don't understand that Orin Kerr is a long-time critic of the Computer Fraud and Abuse Act (or at least, how broadly some of its provisions are interpreted) [1,2]. Also, he's not associated with the DoJ.

[1] http://www.volokh.com/2011/11/14/my-congressional-testimony-...

[2] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=399740

[jerrya]

He is. And he certainly says that a lot.

But whenever I read him at the Volokh Conspiracy, inevitably he seems to come down on the other side.

Check out some of his GPS / 4th Amendment analyses. For a guy that claims to be a civil libertarian and for a guy that claims to understand tech, he sure comes down awfully frequently on more expansive powers for search and seizure and miss the obvious civil liberties and technology issues.

And no, I can't point to anything specific, but it is my general sense of the guy after reading what he writes at the VC for a couple of years now. And I appreciate what he writes, and it can be very illuminating to me as a non-lawyer, but I have often been struck by how much this critic of CFAA and civil libertarian isn't.

[Illychnosis]

"From 1998 to 2001, he was employed as an Honors Program trial attorney in the Computer Crime and Intellectual Property Section of the United States Department of Justice Criminal Division."

http://en.wikipedia.org/wiki/Orin_Kerr

[rbehrends]

That was over a decade ago. His salary, as you put it, does not depend on the DoJ.

[DannyBee]

While true, AFAIK, Orin was essentially responsible for writing the manuals the DOJ currently uses to decide on how/when/what to charge in CFAA cases.

[Illychnosis]

Not the point. You had claimed he wasn't associated with the DoJ.

He got the GW Law gig, in part, because of his prosecutorial duties at DoJ. So his salary does somewhat depend on his not understanding that the problem was the DoJ, not Aaron.

[chris_wot]

No, he said he's not associated with the DoJ. Not that he had previous associations with the DoJ.

[Illychnosis]

Three years in the belly of the beast is enough to make one a lifer. In reading his work, it's quite obvious that his sympathies are with the power of his former employer, not with the rights of the individual.

It's a hazard of going corporate: Corporate becomes more important than people.

[rdl]

He has what appears to be a correct analysis of the law. I suspect a fair number of dispassionate legal observers would come up with the same analysis. Part 2, where he talks about prosecutorial discretion, is going to be the interesting part.

(I personally thought the CFAA "unauthorized access" could be fought, but that leaves 3/5. Computer Fraud and Wire Fraud are essentially always true if you do anything even slightly mean on a computer, and I'm not sure about the damage to computer systems -- that was self-inflicted by JSTOR, and IMO could have been fought. The MIT side of it was also stupid.)

[jlgreco]

Part of the issue is that a "correct analysis of the law" is absolutely worthless if part of the problem includes the law. This notion of "if the law permits it, we're good to go" is a disease.

[rdl]

The law is bullshit, with respect to computer crimes and copyright. You still need to accurately know what the current law is in order to change it, though. And unfortunately it will probably require legislative action to change it, which is going to go up against entrenched interests.

Boycott or other commercial actions against anyone who supports the copyright empire would be one way of getting the law changed.

Unfortunately people in the tech community are going to get distracted by other stuff (both stupid legislation like getting involved in gun control, and reasonable stuff like working on cool new technology), so mounting the sustained, multi-year effort to fix this is going to be very difficult.

[jlgreco]

Honestly I have absolutely no faith in any sort of change coming to the system in-channel. I think we should focus our efforts on developing systems that allow the population to circumvent and would make prosecution prohibitively expensive.

In the future, in any likely reality that I can foresee, the laws are going to remain more or less the same and prosecutors are going to still be using scorched earth tactics. To change the system you need lawyers, but lawyers have a love-affair with the system and knee-jerk in defense of one-another. Ethics and the law are too intertwined for them, any effort to change the system to be more ethical will only continue to be met with cries of "But it's already legal!". I've seen it dozens of times today, and I don't see any light at the end of that tunnel.

If others are going to follow in Aaron's footsteps, they will have to make one particular change: be better at remaining unidentified.

[hobbyhacker]

> If others are going to follow in Aaron's footsteps, they will have to make one particular change: be better at remaining unidentified.

Either that or be fully aware of the consequences and do it anyway but in such a way that the genie can never be put back into the bottle. Aaron paid an extremely high price for something that eventually did not succeed.

[rdl]

cypherpunks write code

[jlgreco]

Yeah, I think that's what I am getting at.

[ErrantX]

I think it's fairly clear, based on his long held views of computer fraud laws, that the second part of this will conclude something like: the charges were fair and justified in law, but the proposed punishment (both its severity and scale) were disproportionate, as was the DOJ handling of the case.

Which I think is correct.

[hobbyhacker]

This still side-steps the question of the use of discretionary powers in deciding to prosecute this case in the first place.

[danso]

I think it's unnecessary and unhelpful to bash an argument based merely on authority or ad hominem. Kerr brings up a level headed assessment of case law and it will be interesting to read the rebuttals to it. If people truly want to fix the problem here, then they must understand its domain, not simply say "this is not how I want the world to be"