[mpyne]

That's more of a factor for the sentencing phase of a trial (a "mitigating" factor to be considered when adjudging a proper sentence).

What you propose is vigilante justice (though without the violence we normally ascribe to it) and though I too am often sympathetic to that, the legal system is not (and we as a society have chosen that on purpose).

[analog]

I don't think I am proposing vigilante justice, are you confusing comments here perhaps?

The intent is absolutely a factor at the decision to prosecute stage.

You're trying to equate an act in the public interest (freeing academic information), with an act with clear criminal intent (credit card fraud). They simply aren't treated the same way and nor should they be.

[rada]

I read your comment as essentially advocating vigilante justice as well. If you are not saying "we are free to steal if we think it's for the public good", then what are you saying?

[analog]

You're describing civil disobedience, not vigilante justice.

[mpyne]

"Vigilante justice" is simply justice applied outside of the legal framework.

I see what you're getting at with civil disobedience though... I suppose the difference is in scope and scale.

Someone passively resisting a bad law can certainly be said to not be a vigilante; they're not actively trying to to bring about their desired brand of justice, they are simply refusing to comply with the current legal version of it.

One would not expect to bring out change only by themselves via civil disobedience, it's power comes from being applied across a group of people. Vigilante justice is different; you simply fix whatever situation is unjust.

If Aaron had simply complied with his own manifesto (e.g. downloading an article at a time, organizing others to download articles, etc.) I think we could safely say he was simply being civilly disobedient.

But he kicked it up a notch. He used technology to speed up his extraction of the entire JSTOR database. He evaded network blocks in the process. When he finally could go no farther on Wifi he hooked his computer directly within the assumed-safe MIT subnet. In short, civil disobedience was taking too long for him and he decided to escalate.

So even if one agrees substantially with his desire for open access I hope it is understandable why people might disagree with his methods, and furthermore to understand why the legal system would disagree. We as a society have deliberately chosen to punish vigilantism because it breeds a world where justice applies only to those strong enough to enforce their worldview.

Although Aaron was not physically violent he certainly had a leg up on 99.9% of the rest of the U.S. population with regard to "cyberskills", does he not? If I stole a million cars and returned them without a scratch to their rightful owner in order to achieve some desirable positive goal I would still get in trouble, because I am not Caesar and therefore don't get to decide which laws do and do not apply to me (however virtuous I might be as a person).

We can debate about misdemeanor or felony, whether 3 months of prison or no jail time at all is appropriate but people seem to be shocked and amazed that the legal system would have taken an interest at all in this case, and I just don't understand why people think that.

[analog]

I'm sorry but vigilante justice and civil disobedience are quite different concepts.

My comment advocated neither. I merely pointed out that pubic prosecutions should only proceed if they are in the public interest. Hardly that radical.

[mpyne]

> I merely pointed out that public prosecutions should only proceed if they are in the public interest.

Sure, everyone agrees on the tautology, just like no one in Washington claims to like "Big Government" or wasteful spending.

If one considers it in the public interest to ensure that those with advanced computer skills do not use those skills to essentially write their own laws, then it's not hard to see why prosecutors like Ortiz and Heymann would consider it necessary to bring charges against Swartz.

It's "cybercrime", which they are responsible for prosecuting, the suspect has a manifesto indicating that this won't just be a one-off affair, the suspect has in fact done stuff like this before at a lesser scale, etc. etc.

Now you or I might say that it's all for a good cause and that we can trust Aaron not to do anything actually seriously malicious, but I can also see why a reasonable Federal prosecutor just doing their job would not agree.

That's not to say Ortiz has clean hands on all of this, just that there really is a plausible "public interest" reasoning to charging Swartz with something. If Swartz were allowed to continue unfettered where would it end (when you answer this remember that you're a lawyer, not a computer expert)?

It's easy to say that IP law is stupid in a world of patent trolls and continuously-expanding copyright for corporations but that doesn't mean the right answer is to burn the whole building down.

For instance, how did Swartz verify that he only downloaded publicly-funded articles? How much collateral damage is acceptable in the name of Open Access?

Swartz may have had answers to all these questions but they're questions none-the-less, and questions I would expect that a reasonable U.S. prosecutor might have as well.