Yet another apologia for Swartz -- this one purporting to answer Orin Kerr (and not really answering it) and in fact enabling all kinds of collectivists like Yochai Benkler to start up a new hue and cry on Twitter.
Sigh.
Since I'm in the moderation queue over at Mr. Free and Open Internet Defender James Boyle's blog (snort), I'll park my answer for here now:
Your comment is awaiting moderation.
This is a philosophical argument, not a legal argument, and disguises itself as a legal argument under “progressive” ideology. So it’s not credible.
You distort the actions that Swartz — and Lessig, who said he “crossed a line” did not dispute, so you merely add to the hyperbole and ideological approach here.
o Swartz made a fake alias and fake account; he did not operate openly with his own credentials
o he didn’t hack Harvard, where he could have legitimately accessed
JSTOR for free; he hacked MIT, because it was more open, and he could
grab more, more easily
o he did this deliberately, on a grand scale, to enact a “propaganda of the deed”
o he used a script than didn’t just “discover”; it stole. It was named
“keepgrabbing.pv” because *it kept grabbing*. This is the singular
greatest truth of this act that Stamos, you, and others obfuscate. But
Aaron didn’t.
o He went into a wiring closet to hide his tracks further
o he used a bicycle helmet to hide his face
o he physically ran from campus police
All of these things are not the actions of a “hacktivist” who is “doing good for humankind” but a destructive hacker, and one enacting an anarchist act that he knew to be wrong and a crime, to smash the ability of JSTOR and MIT to have *choice* on the Internet to have a pay wall or a walled garden. He was in the service of a harsh and extreme ideology of copyleftism instilled in him by his mentor Lessig.
Like so many others tendentiously taking Swartz’s side, you fail to mention the six-month plea bargain, or Ortiz’ statement that pointedly notes that the defense attorney was free to ask for a probation. You also completely obfuscate the real precedent history of such cases — there isn’t a single hacker who has ever served anything remotely like 50, 35 or even 7 years of this nature. It’s absurd, and you know it, and literalizing and Fisking about the prosecutor’s indictment — which in our system is merely the charges, not the sentence or the ruling or the *verdict* of the jury — is to do grave injustice to the reality of our free and independent judiciary, with all its faults.
It is to enter the totalitarian world of “code as law” and binary thinking which Lessig would like to make for us all.
***
And here for the record is my response to Orin Kerr, who I think just gets too far libertarian on this issue:
I refuse to make this case about reform of the criminal justice system
-- pick one of the poor black men arrested for jay-walking or smoking
marijuana in a "stop and frisk," milled by the thousands through 111
Centre Street in NYC, if you want to get involved in reform.
This
case was about "the propaganda of the deed" and was about smashing
*choice* on the Internet to have pay walls and walled gardens instead of
collectivized property and collectivization of knowledge. This
Bolshevik smashing and imposition of "code as law" instead of the
organic rule of law has powerful consequences and you need to become
more attuned to them. When you concede the evils of scary prosecutors,
you are playing into their hands, Orin; don't give them that. You know
better.
Scary prosecutors are dealt with by lawyers that Daddy
and Professor's Wife can pay for, and it's utterly absurd to say that
they had an impact on Swartz's psyche. Declan McCullough screeching
about "50 years" at CNET created far more of a climate of intimidation
because all along in recent months, Swartz would have known he only
faced 6 months, and that a felony record would actually help him a job
in one of Mitch Kapor's organizations, and would hardly have been a
resume killer.
Disregard all the Anonymous Fisking about the
"unauthorized" access -- as you know full well, Swartz made an alias, a
ghost account, trespassed in the closet, hid his face, ran from police,
and used a big fat circumvention script called "keepgrabbing.py". Let's
not get into the copyleftist word salad here.
Before you set
about repealing this or that and trying to concede what Lessig and
others bent on *destroying the rule of law and instilling code-as-law"
are about, go to your law books and find THE PRECEDENTS for these kind
of cases. DID ANYONE ever get 35 years? 7 years? 1 year? You found one
case involving hacking and a gambling, but it's not clear if he was
"ideological" in the way that Anonymous is. So go on, Orin, I'll wait. I
suspect you will not find a one that is *like* Swartz's case in that
regard -- they get one year, they get let off with probation, they get
let out completely for state's evidence. Watch Barret Brown plead mental
illness; watch him get less than a year, too. You don't have the case
law on here to back up the claims of prosecutorial overreach. If you do,
the challenge is to show why you think in this set of circumstances
with the media circus and the professors' letters and "the Internet"
screaming and demonstrating -- and with Anonymous hacking the judge's
personal data and spilling it all over the Internet -- you really think
anything less than a year or 6 months or *probation only* was really in
the cards. Go ahead.
Swartz was not knowledgeable about the law;
he was a fan of the sort of *law-faring* that Lessig does -- that's
different, those are merely smart guerilla tactics. If he really knew
and respected law, he would have given SOPA a good-faith reading and
conceded that it dealt with a) piracy on a large scale b) for personal
gain c) of a certain large value d) repeatedly e) and indicated that the
host could plead that technical difficulties made it too expensive/hard
to remove. He never did that; none of them did. Had SOPA passed; had we
gotten a LAW; then Ortiz and Heymann may never have had to "make an
example" of him -- if that's what they did. You libertarians don't seem
to concede that about the anti-SOPA fight, which is a real shame -- when
there is a good law on copyright and piracy that puts paid to the
notion that they "aren't crimes", and there is precedent built up that
illustrates that it's about Kim Dotcom and not some kid's Tumblr blog,
then we will avoid high-profile cases like Swartz's and also end his
need to keep hacking at the lack of distinction to win. When will we get
that, Orrin!
You mention that Swartz was anti-democratic and
acted against democratic laws. And that is the essence of the moral and
political problem here that makes the legal literalizations that Lessig
and Stamos and others have engaged in all wrong.
Speculation
about what was "soul-crushing" for Swartz is not legal analysis; it's
philosophical and political and moral analysis. That's okay, but then
you have to keep an open mind and examine whether Lessig's failure to go
to the mat for him might just as well have been "soul-crushing" -- and
having his wife raise money for him isn't a replacement for Lessig's
*approval and endorsement and collaboration* in what he chose to do --
*and he didn't get that*. He may well have believed that with Mitch
Kapor and EFF and all the copyleftists, he wouldn't have to do the time
even if he did the crime. Maybe there was a dawning awareness that none
of these people and institutions would leave their credentials or cushy
foundation and government paid positions to go to the mat for him.
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