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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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MIT's Role as Described in Aaron Swartz's October Motion to Suppress ~pj
Authored by: Anonymous on Wednesday, January 16 2013 @ 06:18 AM EST
MIT should and will carry this black mark forever, OpenCourseware should be
avoided, any conscientious student who can leave to another school should do so.
I already get the sense from reading the announcement of the "Soul
searching" that MIT is going to do that it is just an exercise like any
other business would do to "get past" it i.e sweep it under the rug.

[ Reply to This | # ]

News Picks
Authored by: Bas Burger on Wednesday, January 16 2013 @ 06:44 AM EST
I have wasted some energy to react on the devastating news of Aaron Swartz at
other chanels and can only give my condolences to the family of Aaron.

I almost never react here but mostly read stuff, mainly because I am not a
citizen of the US.

However the news pick of Judge Blocks Plaintiff’s Attempt to Sell Indigent
Defendant’s Appeal Rights, made my mouth fall open.

That only a judge is the thin border of being able to sell off somebody else's
important rights to be able to defend themselfs in an appeal.

I think the people of the US should take a very long look in the mirror and ask
themselfs how could they have let this happen.

---
No comments...

[ Reply to This | # ]

MIT's Role as Described in Aaron Swartz's October Motion to Suppress ~pj
Authored by: Anonymous on Wednesday, January 16 2013 @ 06:51 AM EST
Please, please be careful of exceeding the data caps on your cell phone plan,
especially while roaming. Sounds like this CFAA could be applied under these
circumstances - scary stuff.

IANAL, just a tired old man.

[ Reply to This | # ]

Aaron's death was a tragedy - but it has started a conversation
Authored by: Anonymous on Wednesday, January 16 2013 @ 07:04 AM EST

That may be the final thing that Aaron gave us. The community is upset,
and like with SOFA, engaged.

Laws only change when citizens are engaged.

Contact your Senator or Representative. Politely but firmly tell them why
you think the law is a mess. Push them politely, but firmly, for a
commitment to fix the problem.

Finally, follow up. Not everyday, but often enough that the politicians know
you are watching them.

Wayne
http://madhatter.ca

[ Reply to This | # ]

Steve Heymann Petition
Authored by: Anonymous on Wednesday, January 16 2013 @ 07:09 AM EST

It would also be a good idea to sign the Steve Heymann Petition.

Send a message. Let them know you aren't happy. Huffington Post claims hea was involved in another case where a hacker committed suicide.

Wayne
http://madhatter.ca

[ Reply to This | # ]

Special! Limit 3 per Customer
Authored by: Anonymous on Wednesday, January 16 2013 @ 07:48 AM EST
So, if you've picked up your three items, deposited them in
the car and headed back in to the shop for another three, but
the mall cop notices - can you get put away for 35 years?

[ Reply to This | # ]

Secret Service ?
Authored by: Anonymous on Wednesday, January 16 2013 @ 08:11 AM EST
Why was secret service involved? Why did they even cared about JSTOR database?

[ Reply to This | # ]

MIT's Role as Described in Aaron Swartz's October Motion to Suppress ~pj
Authored by: Anonymous on Wednesday, January 16 2013 @ 09:07 AM EST
A more worrying concern for anyone using the MIT network is the security of any
communications. [On another network (not at MIT) I was told that email I had
sent had come to the notice of the network manager because it had bounced,
although I did not receive the normal failure notice. In that situation I
believe they were monitoring emails, and I was not told the truth.] How closely
do MIT monitor traffic, the stated rationale of how they became aware of the
JSTOR downloads sounds plausible, but ... A question of setting out honeypots
also comes to mind.

[ Reply to This | # ]

MIT: Caught in the system, as well?
Authored by: Kevin on Wednesday, January 16 2013 @ 09:31 AM EST
My suspicion: We won't learn the results of MIT's investigation for years. My
guess is that any putative Fourth Amendment violations may well have taken place
at the insistence of the Secret Service, and that a Federal gag order applies to
the entire affair.

---
73 de ke9tv/2, Kevin (P.S. My surname is not McBride!)

[ Reply to This | # ]

MIT's Role as Described in Aaron Swartz's October Motion to Suppress ~pj
Authored by: Anonymous on Wednesday, January 16 2013 @ 09:43 AM EST
A few things are omitted with the result that MIT looks like the bad guy. First,
MIT kicked him off the wireless network multiple times, once they found him
violating the spirit of access and abuse of the JSTOR privileges. He used
multiple machines and/or MAC addresses. But that wasn't enough, he want back --
trespassing -- and hid a computer in a closet, connected to the wired network.
Wired access isn't 'free wireless' Don't conflate them.

[ Reply to This | # ]

Swartz unable to appeal for funds?
Authored by: Anonymous on Wednesday, January 16 2013 @ 09:45 AM EST

Pardon me if this is slightly off topic, but there's one thing about Lawrence Lessig's blog "Prosecutor as bully" that confuses me. Lessig writes that Swartz was "unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge."

I thought in the U.S. every criminal defendant was entitled to legal defense; and I'm sure I've read countless examples of legal defense funds being set up for someone or other. How is it that Swartz was not allowed to establish a defense fund?

[ Reply to This | # ]

Corrections Thread
Authored by: artp on Wednesday, January 16 2013 @ 10:00 AM EST
Changes in Title Block if possible.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Off Topic Thread
Authored by: artp on Wednesday, January 16 2013 @ 10:02 AM EST
There might not be much outside the scope of this article.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Comes Goes Here
Authored by: artp on Wednesday, January 16 2013 @ 10:05 AM EST
Transcripts of texts in the "Comes v. MS" link above.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

MIT's Role as Described in Aaron Swartz's October Motion to Suppress ~pj
Authored by: Anonymous on Wednesday, January 16 2013 @ 11:11 AM EST
Mr. Shawrtz's Attorney, Peters, is somewhat to blame here.
The Prosecutors tactics, while clearly harsh and possibly
overbearing, were legal. They were also A SIGN OF A TERRIBLY
WEAK CASE!!! Peters should have recognized that the Feds
were bluffing and there was no way they could put this in
front of as Jury with any reasonable expectation of
conviction. If Peters and Schwartz had held firm, which any
decent defense attorney should have done, they would
eventually be freed of the "tyranny"!

[ Reply to This | # ]

From the peanut gallery - the value of content
Authored by: YurtGuppy on Wednesday, January 16 2013 @ 11:15 AM EST
I was reminded of the value of content when I went with my son to purchase his
textbooks for his next semester.

An inch-think book, worth about $30 if it were on the New York Times list,
generally ran about that + $100.

For a while I worked at a university library and had some exposure to early
efforts in working out how to get scholarly journals online. The publishers
have some serious money in the game (or did then anyway).

All that to say: content in a university/scholarly setting is way overvalued as
compared to "normal" environments. I guess that is not a surprise
since they are the keepers of knowledge in our society. Letting that knowledge
get loose is a direct impact on their personal and organizational value.

To a layman like me it makes sense that government funded research should be
published in a freely available form, or that common knowledge (like elementary
Calculus textbooks) should be inexpensive.

But run counter to the knowledge guild to your peril.

I never met this man and am sorry to hear of his end. My condolences to those
of you who knew him.

I don't think MIT will come of as badly as some of you think. Protecting the
insiders is what large organizations do, and is generally appreciated by those
on the inside.




---
a small fish in an even smaller pond

[ Reply to This | # ]

Useful lessons for sysadmins
Authored by: indyandy on Wednesday, January 16 2013 @ 11:48 AM EST
Trying not to anticipate the more detailed account of events that MIT are presumably generating, I have at least learned or reinforced the following:

1) At the first occurrence a polite email to the address given at user registration saying "We know you're doing this - please stop it. This is why...", might have put a stop to the whole affair, or would at least have been proof to demonstrate that the user was exceeding his tacit authorization, and best efforts were made to inform him of that.

2) Put in the same position as the MIT sysadmins I would have been under a huge temptation to show off my skillz at monitoring the network I had so carefully constructed and at extracting useful information from Gigabytes of log files. However, if there is any chance that these activities may lead to the calling in of outside authorities (whether for a criminal activity or a potential wrongful dismissal case) then one should not exceed normal day to day monitoring and release no information/logs to anyone without written instructions from the company's lawyers.

3) I.T. is a legal minefield. I have to spend as much (or more) time trying to understand the law as I do trying to keep abreast of technical developments. I really wish I had some formal legal training. Heaven help sysadmins who got their jobs on the strength of an MCSE and nothing else. (I do not for a moment imagine the MIT sys admins are in that group)

Of course in real life this is totally unworkable - how do you determine if a network problem is hardware or human unless you investigate first? In the process of answering the human/hardware question - or even realizing that "human" may be part of the question - the user's expectation of privacy has already been trampled upon, even if the original intention was for the benefit of all users...

The polite email may be the wrong thing in cases of obvious criminal activity - child images (I can't say the P-word) springs to mind.

There again, which jurisdictions would allow companies to routinely monitor and review sites visited by employees - and what sort of sysadmin would recognise the address of a darknet P-word site if he saw it?

I wish there was a simple answer to all the possible I.T. ethics questions and after reading the motion in the main article I have great sympathy for the MIT sysadmins whose zeal to do the right thing may have put them on the wrong side of the law or the ethical compass.

[ Reply to This | # ]

False arrest, malicious prosecution, proximate cause of death
Authored by: Anonymous on Wednesday, January 16 2013 @ 12:27 PM EST
Obviously a layman's question. Are any of the federal prosecutors vulnerable to
these?

[ Reply to This | # ]

  • That's what - Authored by: Anonymous on Wednesday, January 16 2013 @ 01:50 PM EST
    • That's what - Authored by: Anonymous on Wednesday, January 16 2013 @ 03:55 PM EST
Regarding Russia, China and Iran
Authored by: Anonymous on Wednesday, January 16 2013 @ 12:49 PM EST
PJ, you wrote
"Young people in Russia and China and Iran don't have a Computer Fraud
& Abuse Act to hold them back."

Well, yes, technically you're right. They don't.
But I'm sure, if you take a moment to reflect, that you know there are other
obstacles to youthful cyber exuberance in those countries.

I have great respect for your work and nothing but admiration for your zeal, so
this is meant only as a friendly eh-hem.

Tom

[ Reply to This | # ]

MIT's Role as Described in Aaron Swartz's October Motion to Suppress ~pj
Authored by: Anonymous on Wednesday, January 16 2013 @ 08:40 PM EST
Lets be clear:

MIT did shut off Swartz's access to JSTOR multiple times. Swartz hacked around
these attempts to cut off his access in a manner which leaves absolutely no
doubt that he understood that his access was unauthorized.

His actions eventually resulted in JSTOR shutting off access to MIT for several

days, leaving the entire community without access.

Then he decided to hide a laptop on campus, and download the JSTOR archive to
it over a wired connection. It was discovered, and a camera was placed to detect

his attempt to retrieve it. He went to retrieve it, wearing a disguise, and was

apprehended.

If this isn't unauthorized access, what is?

[ Reply to This | # ]

MIT - Everything with an 18. Address?
Authored by: maco on Thursday, January 17 2013 @ 03:57 AM EST
MIT owns 16,777,216 IPv4 Internet addresses? More than the
countries of Thailand, Laos, Malaysia, Vietnam, Burma and
Indonesia combined?

wtf?

And these countries, too poor with dollars and tech to move
to ipv6, and MIT sitting on 16 MILLION addresses?

did I read this right?

[ Reply to This | # ]

At no time did this office ever seek -
Authored by: Anonymous on Thursday, January 17 2013 @ 05:52 AM EST
Ultimately, any sentence imposed would have been up to the judge. At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law.
WSJ

So who told the press? We know they are an imaginative lot, but I don't see them struggling with the arithmetic, lawbook in one hand, calculator in the other. Readers OTOH are not so imaginative. There were only five comments to this article when I accessed WSJ. All could be described as at the extreme end of pithy, and most violated GL's posting guidelines.

[ Reply to This | # ]

The prosecutor still doesn't get it
Authored by: Anonymous on Thursday, January 17 2013 @ 06:24 AM EST
See newspicks - they say they had no intention to seek the
maximum penalties allowed by congress, and that the proposed
settlement of six months in prison and a felony conviction
was fair and reasonable for this offense.

Remember, we are talking about an "offense" of hooking a
laptop up to an open network and downloading a large number
of academic journal articles, with the offense being far
heavier use than expected or intended by the provider.

Good grief, how can any sane person possibly think this
warrants any incarceration at all? If he had been my son, I
would not have wanted him to plead guilty under those terms.

The whole thing makes me sick to be in this country.

I normally always post anonymously, but in this case I have
no qualms associating my real name with my outrage over the
prosecutor's actions in this case.

David S. Bruce, MD
New Orleans

[ Reply to This | # ]

MIT's Role as Described in Aaron Swartz's October Motion to Suppress ~pj Updated
Authored by: Anonymous on Thursday, January 17 2013 @ 10:53 AM EST
I am gobsmacked. It happens every day?

I have never been in court myself to verify this, but here is a paper from 1978 which claims as many as 99 percent of felony convictions in the US are by plea bargaining:

John H. Langbein, Torture and Plea Bargaining

Very few cases actually go to trial. The paper goes quite a bit into the reasons behind this (too many safeguards in a trial provide huge incentives for prosecutors to avoid them, etc.).

[ Reply to This | # ]

Six-Month Prison Term
Authored by: Anonymous on Thursday, January 17 2013 @ 11:06 AM EST
This is the least of his life burdens if convicted of felonies. And by accepting
the plea bargain, he does become a convicted felon. He can't vote in most
jurisdictions, nor can he hold public office, nor own a firearm. He may be
barred from employment in some industries. There may be many other burdens that
I'm unaware of.

joef, on a borrowed computer.

[ Reply to This | # ]

The preferential treatment is what really angers me
Authored by: cjk fossman on Thursday, January 17 2013 @ 04:15 PM EST
Where is the prosecution of Sony for rooting so many user PCs?

Where are the RICO prosecutions of record companies for routinely defrauding
artists of their royalties?

The IP extremists in the Obama DOJ are running dog lackeys (yes, I said it) for
Big Media.

[ Reply to This | # ]

Be fair to Ortiz
Authored by: Anonymous on Thursday, January 17 2013 @ 04:49 PM EST
Just because Swartz killed himself is no reason not to do it again. If it were
Madoff instead of Swartz we would be applauding her not criticizing her. So I
find it highly unfair to criticize her for implying that just because he killed
himself is no reason to do it the same.

OTOH all the legal commentary I've heard suggests that she was involved a severe
abuse of discretion. Hearing that and saying that she would do it again, is a
strong reason to look at her critically.

MouseTheLuckyDog

[ Reply to This | # ]

LAWRENCE LESSIG: Says Demand Justice!
Authored by: hAckz0r on Thursday, January 17 2013 @ 06:31 PM EST
LAWRENCE LESSIG: Demand Justice
Lawrence Lessig asks for you to sign this petition.

He also asks for those who have Facebook and Twitter to pass the word. (on that same page)

---
The Investors IP Law: The future health of a Corporation is measured as the inverse of the number of IP lawsuits they are currently litigating.

[ Reply to This | # ]

Prosecutorial Guidelines
Authored by: ozzee on Thursday, January 17 2013 @ 06:38 PM EST

In the U.S., just because a crime is committed, does it mean it needs to be prosecuted?

I don't know if there are similar US federal prosecutorial guidelines, however, here is the NSW, AU DPP guidelines and it clearly indicates

(Extarct from the NSW AU DPP guidelines):
"It has never been the rule in this country ... that suspected criminal offences must automatically be the subject of prosecution. Indeed the very first Regulations under which the Director of Public Prosecutions worked provided that he should ... prosecute 'wherever it appears that the offence or the circumstances of its commission is or are of such a nature that a prosecution in respect thereof is required in the public interest'. That is still the dominant consideration."

See original: NSW Australia, DPP Guidelines PDF

However, I don't think the Australian prosecutors take it very seriously. All I ever heard from prosecutors is "I believe we will succeed in prosecuting this case", never, "I think it is in the public interest to do so".

I have experienced first hand the same tactics being employed by NSW DPP prosecutors however so guidelines or not, there seems to be no overview of prosecutorial behavior. In the case I specifically was privvy to, it was not until the magistrate (an ex prosecutor BTW) said "I don't see how you can support these charges given the evidence in the brief" that the prosecutor backed off.

I think we need to stop plea bargins where the penalty for going to trial is significantly more than the penalty for not going to trial and I think that trial penalty should be be determined by the presiding judge, not the prosecutor. For example, in Aarons case, I think if the prosecutor offered a 6month term, then the maximum trial sentence should be 20% more.

I'm particularly disgusted by the US Attorney statement. Ms Oritz simply does not get what I expect of her. As a U.S. citizen, she is not representing my "public interest" at all. She must go.

[ Reply to This | # ]

Aaron Swartz stole a major portion of JSTOR's archive
Authored by: Gringo_ on Thursday, January 17 2013 @ 07:14 PM EST

In UNITED STATES OF AMERICA v. AARON SWARTZ, they say...

30. In all, Swartz stole a major portion of the total archive in which JSTOR had invested.

So until he gave them back anyhow, JSTOR and its customers must have gone without access to those files. Pretty serious crime!

But now I am confused, because elsewhere they talk about him only copying those files. I think the RIAA has got everybody confused with their campaign to equate copying with stealing, to make it sound like somebody actually took away something and denied the owner of possession.

I think everywhere we see someone so confused about the difference that they wrote "Stole" instead of "Copied" we all need to clarify the situation to help reduce confusion.

[ Reply to This | # ]

Unlocked closet... isn't that like leaving the keys in the car ignition
Authored by: Anonymous on Thursday, January 17 2013 @ 08:39 PM EST
Isn't JSTOR freely available on campus?

MIT used to be the center of hacker culture... now it's just another schill for the RIAA, MPIAA and SOPA along with all their bought and paid for politicians.

BTW, a friend of mine left his keys in the ignition of his old pickup truck and some kid stole it and rammed about six cop cars. They were going to sue my friend for damages until they found out he didn't have any money.

[ Reply to This | # ]

The big picture
Authored by: Anonymous on Friday, January 18 2013 @ 02:38 AM EST
I know I usually don't comment much, but I'm troubled. I'm agitated. I'm
concerned.

The more I read about Aaron Swartz and his circumstances, the more agitated I
become, and the more I am concerned. I am appalled at the power given to the
prosecuting attorney. I am disgusted at the way these laws that were touted as
protecting the general public have been brutally levied upon us, members the
general public.

I am not quick to speak or to react. Normally by the time I decide to speak up,
someone else has already expressed the same things I would. Or, I would decide
that it isn't an issue I should get involved in. This time, I don't see it. I
see petitions to remove the prosecuting attorneys (Carmen Ortiz and Steve
Heymann) from office. I see arguments that Swartz committed a crime and needed
to face his punishment. I see demands to fix the wording of the CFAA so that
prosecution like this can't happen again. These things will not fix the
problem. These don't address the big picture.

The law - once meant to protect and serve the public - no longer protects us.
Instead, it criminalizes us. The law does not serve the public, it condemns us.
Yes, laws have always punished criminals, and this should still hold true.
But, the law should not be leveraged to *make* a criminal. Yet, this is how
many laws are being used. That is how the CFAA was used against Aaron Swartz.
He's not the only one, and that's not the only law of its kind.

I am not a criminal.
I shouldn't have to be afraid of the law.
But I am. The law makes me so.

The lawmakers have forgotten who they need to protect. The justice system has
forgotten who it needs to protect. The prosecutors have forgotten who they need
to protect. The government has forgotten who they need to protect. It's time
to remind them.

We are not criminals.
--
Chris Lewis

[ Reply to This | # ]

...and they would do it again
Authored by: Anonymous on Friday, January 18 2013 @ 08:54 AM EST
"So what Mr. Kerr and Ms. Granick write, that the problem is the system,
not individuals, is correct. Perhaps it's both. But what is now clear is that
prosecutors can't be left with such power to decide, if they can't see a problem
in what happened here. A man is dead. And she would do it all again."

Indeed. And every time we see law introduced and even passed where lawmakers
and law enforcement say "but we would only use this in 'extreme'
circumstances" are just lying. Their careers are made by how good at
fishing they can be. So they will get the maximum they can in every case
presented.

[ Reply to This | # ]

Why all these trolls???
Authored by: Anonymous on Friday, January 18 2013 @ 03:14 PM EST
I've been reading all the troll comments, and one thing strikes me: who does
this and for what purpose? Is it simply because this is Groklaw, and they are
retired SCO or MS shills, or this time it's Ms. Ortiz and her shill squad
stirring up mud?

PJ can see their IP addresses, so she may know.

[ Reply to This | # ]

"Attempting to conceal from MIT the physical location..."
Authored by: indyandy on Friday, January 18 2013 @ 03:58 PM EST
d. Attempting to conceal from MIT the physical location of the Acer laptop's connection to MIT's network, by placing it in a utility closet, covering it with cardboard, and, at one point, moving it from one MIT building to another

On any site I manage, the best way to ensure I can locate a computer with 100% confidence is to connect it to a wired network connection. This requires use of managed switches throughout and an obsession with documenting building cabling.

I can't imagine any organization with more than 200 network outlets that could afford not to use managed switches, and even the most indolent of sysadmins should be able effortlessly to locate a computer connected directly to a managed switch.

The paragraph quoted above should have read:

Attempting to conceal from a homeless man who kept his belongings in a utility closet the physical location of a brand new Acer laptop in said closet by covering it with cardboard and, at one point, moving it from one MIT building to another

...but maybe that would read more like "student prank" than "Sophisticated High-Tech Computer Crime One Step Away From Bringing Down The Nation's Computer Infrastructure", which is what the prosecution seems to be suggesting

[ Reply to This | # ]

Felon Disenfranchisement
Authored by: Anonymous on Friday, January 18 2013 @ 06:23 PM EST
Numerous comments in the press regretting the possibility of
Swartz losing his right to vote if convicted, forced me to try
and find what they were talking about. Not so easy. It seems
the various States have varying rules on how long a felon
loses his vote. But these were Federal charges. Is there any
easy explanation of a felon's right to vote in the US?

[ Reply to This | # ]

Praise / Easy Pickings
Authored by: Anonymous on Saturday, January 19 2013 @ 02:11 AM EST
In the past, PJ has often praised the justice system. Is it turning?

How many accused do not even have the means to defend themselves? Easy
pickings when plea bargains are presented as an out.

[ Reply to This | # ]

Do you contribute the documents obtained to RECAP?
Authored by: Anonymous on Saturday, January 19 2013 @ 06:13 AM EST
"Do you know how much it has cost Groklaw for PACER documents in the last
six months, mostly to cover the Apple v. Samsung and Microsoft v. Motorola
trials and the aftermath? Note we haven't even obtained every single document
filed, just the ones we had to in order to follow the cases (plus appeals).
Around $4,000."

[ Reply to This | # ]

Watch the video
Authored by: Anonymous on Saturday, January 19 2013 @ 03:26 PM EST
Something about that last question touched her panic button.

[ Reply to This | # ]

Carmen Ortiz claims Swartz had a mental illness
Authored by: IMANAL_TOO on Saturday, January 19 2013 @ 04:34 PM EST
Carmen Ortiz claims Swartz had a mental illness:

"Asked if her office had been alerted that Swartz, 26, was suicidal, Ortiz said, “My understanding is that some issues about a year and a half ago came up regarding his mental illness and they were addressed at the arraignment.” She then declined to take any further questions."

Of course, history has shown us that many people will rather commit suicide than accept half-true allegations or 35 years in prison.

Still, what would the liability of Swartz have been in this case if he actually had a mental illness?


---
______
IMANAL


.

[ Reply to This | # ]

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