Aarons alleged crime was that he used MITs network to access a database of academic journal articles (JSTOR) and download millions of those articles to his laptop computer. He didnt hack the network to secure those downloads: MIT is a mously open network. He didnt crack any special password system to get behind JSTORs digital walls. He simply figured out how JSTOR was filing the articles that he wanted, and wrote a script to quickly gather those articles and then copy them to his machine.
Democracy Now! has suggested a different motive. It uncovered a speech that Aaron gave at the University of Illinois at Urbana-Champaign in the ll of 2010, in which he may have been urging students to take advantage of the access that they had to sites like JSTOR to give the third world the same access to scholarly material. On this theory, Aarons aim would have been to liberate JSTOR for the developing world -- a market in which JSTOR was not then flourishing.
We will never know for sure why Aaron did what he did. Any motives disclosed to his attorneys must remain secret. So the most the world can do is to speculate: What possible reason could Aaron have had for the JSTOR dump? And plenty of speculation there is:
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But it is an important start, and more changes can be added as people review the Reddit draft. And with the bipartisanship demonstrated by
Its that last step that is so odd within the tradition of American law. Contracts are important. Their breach must be remedied. But American law does not typically make the breach of a contract a felony. Instead, contract law typically requires the complaining party to prove that it was actually harmed. No harm, no foul. And in this case, JSTOR -- the only plausible entity harmed by Aarons acts -- pled no foul. JSTOR did not want Swartz prosecuted. It settled any possible civil claims against Swartz with the promise that he return what he had downloaded. Swartz did. JSTOR went away.
Lofgren should be praised for her quick and smart response to the mess that brought about this tragedy. This isnt the only change that computer and copyright law require. Its not even on the top 10 list of the causes Aaron was fighting for.
The National Journal Group has the right (but not the obligation) to monitor the comments and to remove any materials it deems inappropriate.
But the government did not. In the weeks before his death, the government reaffirmed what they had been insisting upon for the 18 months before: jail, a felony conviction, and a bankrupting fine, or else Swartz was going to ce a bankrupting trial.
A week ago, Aaron Swartz -- social activist, geek genius -- took his own life. Facing the choice between a federal prosecutor who insisted that he either accept the label felon and go to jail or fight a million-dollar lawsuit against 13 felony indictments, Aaron took the third option, and hanged himself. And with that we all lost an incredible soul, one who had literally spent half of his 26-year-old life doing nothing except working for (at least his conception of) the public good.
Aaron Swartz is dead -- in my view, as a friend who knew him well for more than a decade --at least in part because of this breach of its duty by the government. Carmen Ortiz,2013-1-26 上午 1:20:16. the U.S. Attorney overseeing the prosecution, demonstrated that breach with the ignorance she displayed when this indictment was announced. As she said then, Stealing is stealing, whether you use a computer command or a crowbar, aduedu3319.typepad.com -- demonstrating she knows nothing about computers, and apparently nothing about crowbars. And the line prosecutor working for her breached that trust when he made it clear that his first priority was not decency or proportionality but one more notch on his prosecutors belt, for a prosecution that had nothing to do with keeping America safe from criminals.
Computer law is different, however, because Congress didnt really understand this wild west (as the network was called when Congress passed the Computer Fraud and Abuse Act in 1986), and because geeks makes them uncomfortable. For 25 years, the CFAA has given federal prosecutors almost unbridled discretion to bully practically anyone using a computer network in ways the government doesnt like. It does that by essentially criminalizing the violations of a sites terms of service if combined with the taking of $5,000 of value. And even if in the vast majority of cases prosecutors exercised that discretion, well, in this case the abuse of that discretion has ended in tragedy. As Tim Wu so brilliantly describes, we have built a system of criminal law that depends upon our trusting the government. Few civil libertarians from either the right or the left, though, will be surprised that it turns out that the bureaucrats manning the battle stations cannot be trusted.
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The evidence supports both of these possibilities, though not perfectly in either case, and others too. What isnt supported are the accounts the government suggested in their breathless and ignorant presnational law journal A Law For Aaron Swartzs releases and indictment. Theres nothing to support the idea that Aaron was simply going to liberate JSTOR -- Swartz was not a copyright anarchist, and any effective first-world distribution would easily have been taken down. Even more absurd was the suggestion that Swartz was trying to make money with the scholarly articles he had downloaded. Trust me on this: However much academics love articles from the Harvard Law Review, that love does not translate into money.
One blog, for example, the mous kottke.org, speculates that Aaron wanted to run an academic analysis on the articles that he had taken. While at Stanford, Swartz had worked with a law student to download all the law review articles in the Westlaw database, to map funders of research with research conclusions. The result of that research was published in the Stanford Law Review, and showed a troubling connection between funders and their conclusions. At the time of Aarons alleged crime,tumour1727.typepad.com. he was a fellow at my Center at Harvard. The work of the Center? Studying the corruption of academic research (among other institutions) caused by money.
The terms of service (TOS) of any website are basically a contract. They constitute an agreement about what you can and cant do, and what the provider can and cant do. Not everything on a website is governed by contract alone: Copyright and privacy law can impose property-like obligations independent of a TOS. But the rules Aaron were said national law journal A Law For Aaron Swartz,to have violated purported to limit the amount of JSTOR that any user was permitted to download. They were rules of contract. Aaron exceeded those limits, the government charged. He therefore breached the implied contract he had with JSTOR. And therefore, the government insists, he was a felon.
So what he actually intended the public cannot know. And if the public cannot know, the government certainly did not know. But that doesnt matter under the law as it stands. All the government had to show to launch its witch hunt against this young activist was that he had violated JSTORs terms of service and taken (as in copied) something worth more than $5,000.
This rule of American law is absurd -- especially in a world where prosecutors cant be trusted to make reasoned and proportionate judgments about who should be labeled a felon and who should not. A breach of contract is a breach of contract. It is not an act of treason. It is not a threat to the realm. If every breach of contract worth more than $5,000 were a crime, Manhattan wouldnt be the worlds most amazing city. Manhattan would be a federal penitentiary, with every prominent Wall Street firm very well represented. Fail to execute a trade on time? Two years in jail. Back out on an acquisition? Thirty to life.
But now Congress may actually do something to remedy at least part of this important flaw. Congresswoman Zoe Lofgren (D-CA) has introduced a draft bill -- importantly, first on Reddit, a platform Aaron had helped to build, and, once she gets the Nets feedback, in the United States Congress -- to change this rule of the CFAA and return contract law to its civil home. Her bill, which she calls Aarons Law, would limit the scope of the Computer Fraud and Abuse Act and exclude crimes that are nothing more than a breach of contract. Had that change been made before Aarons death, the governments felony charges would likely have collapsed. Had the governments charges collapsed, Aaron Swartz, in my view, would still be frantically working to make the world a better place.
