Dangerous Messages: Excusing Aaron Swartz, and the Unethical Non-Prosecution of David Gregory

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To  no one’s surprise, District of Columbia attorney general Irving Nathan announced that he will not be prosecuting NBC’s “Meet the Press” host David Gregory for a clear, intentional and unequivocal violation of a D.C. law on national television. In so doing, Nathan sent the District, the nation and the public a package of unethical and damaging messages, perhaps the least significant of which is that the District of Columbia’s chief lawyer is just as ethically flawed as the rest of its government.

In his letter to Gregory’s attorney, which you can read in its entirety here, Nathan said:

  • “The device in the host’s possession on that broadcast was a magazine capable of holding up to 30 rounds of ammunition. The host also possessed and displayed another ammunition magazine capable of holding five to ten rounds of ammunition…It is unlawful under D.C. Code Section 7-2506.01(b) for any person while in the District of Columbia to “possess, sell, or transfer any large capacity ammunition feeding device regardless of whether the device is attached to a firearm” or loaded. Under the Subsection, the term “large capacity ammunition feeding device” means a “magazine, belt, drum, feed strip or similar device that has the capacity of, or that can be readily restored or converted to accept more than ten rounds of ammunition.” Under D.C. Code Section 7-2507.06, any person convicted of a violation of this Subsection may be imprisoned for not more than one year, fined not more than $1,000.”
  • “The larger of the two ammunition feeding devices in question here meets the definition under the statute. OAG has responsibility for prosecuting such offenses and takes that responsibility very seriously.”
  • ” OAG has determined to exercise its prosecutorial discretion to decline to bring criminal charges against Mr. Gregory, who has no criminal record, or any other NBC employee based on the events associated with the December 23, 2012 broadcast. OAG has made this determination, despite the clarity of the violation of this important law, because under all of the circumstances here a prosecution would not promote public safety in the District of Columbia nor serve the best interests of the people of the District to whom this office owes its trust.”
  • “Influencing our judgment in this case, among other things, is our recognition that the intent of the temporary possession and short display of the magazine was to promote the First Amendment purpose of informing an ongoing public debate about firearms policy in the United States,especially while this subject was foremost in the minds of the public following the previously mentioned events in Connecticut and the President’s speech to the nation about them.”
  • “There were, however, other legal means available to demonstrate the point and to pursue this line of questioning with the guest that were suggested to NBC and that could have and should have been pursued.”
  • “No specific intent is required for this violation, and ignorance of the law or even confusion about it is no defense. We therefore did not rely in making our judgment on the feeble and unsatisfactory efforts that NBC made to determine whether or not it was lawful to possess, display and broadcast this large capacity magazine as a means of fostering the public policy debate. Although there appears to have been some misinformation provided initially, NBC was clearly and timely advised by an MPD employee that its plans to exhibit on the broadcast a high capacity-magazine would violate D.C. law, and there was no contrary advice from any federal official. While you argue that some NBC employees subjectively felt uncertain as to whether its planned actions were lawful or not, we do not believe such uncertainty was justified and we note that NBC has now acknowledged that its interpretation of the information it received was incorrect.”

The rationale by which Nathan says he decided not to prosecute is of dubious consistency with the ethics guidelines governing prosecutorial discretion as determined by the National District Attorney Association. These are the factors it lists that might justify non-prosecution. Let’s look at them in the case of what Gregory did, and what Nathan’s decision means:

a. Doubt about the accused’s guilt; Nope. There is no doubt, as the letter specifies.

b. Insufficiency of admissible evidence. The crime was committed on national TV.

c. The negative impact of a prosecution on a victim. No.

d. The availability of adequate civil remedies. Inapplicable.

e. The availability of suitable diversion and rehabilitative programs. Not a problem.

f. Provisions for restitution. Not relevant.

g. Likelihood of prosecution by another criminal justice authority. No.

h. Whether non-prosecution would assist in achieving other legitimate goals, such as the investigation or prosecution of more serious offenses. Absolutely not.

i. The charging decisions made for similarly-situated defendants. Well, it depends. Similarly situated, as in “media bog shots who think the laws don’t apply to them,” or similarly situated as in “he broke the law because he wanted to do something and didn’t care whether it was illegal or not”?  D.C. prosecutes the latter. The former? Not so much.

j. The attitude and mental status of the accused. This argues FOR prosecution.

k. Undue hardship that would be caused to the accused by the prosecution. Please.

l. A history of non-enforcement of the applicable law. To the contrary, D.C. aggressively prosecutes this law.

m. Failure of law enforcement to perform necessary duties or investigations. Not an issue.

n. The expressed desire of an accused to release potential civil claims against victims, witnesses, law enforcement agencies and their personnel, or the prosecutor and his personnel, where such desire is expressed after having the opportunity to obtain advice of counsel and is knowing and voluntary. Not a factor.

o. Whether the alleged crime represents a substantial departure from the accused’s history of living a law-abiding life. Yes, this applies, but this is usually taken into consideration in sentencing, not prosecution.

p. Whether the accused has already suffered substantial loss in connection with the alleged crime. Not an issue.

q. Whether the size of the loss or the extent of the harm caused by the alleged crime is too small to warrant a criminal sanction. More about “the extent of the harm” below.

I don’t see any category encompassing an intent to promote the First Amendment purpose of informing an ongoing public debate about firearms policy in the United States. Do you? Essentially what this excuse means is that journalists, especially celebrity journalists like Gregory, are permitted to break the law whenever it suits them, or perhaps when the prosecutor agrees with their objectives.nation about them.”

This is a terrible and damaging message to send the public, one that embraces elitism, rejects equal treatment under the law, and that vastly increases widespread  cynicism and suspicion that there are two sets of law–one for the rich, famous and powerful and the other for everyone else. Law Professor Ann Althouse wrote, noting that Nathan calls the law “important”:

“Why is the law important? If Gregory clearly violated the law, but there is no interest to be served in prosecuting him, doesn’t that prove that the law is not important? If the precise thing that he did — which is clearly what is defined as a crime — raises no interest in prosecution, how can we be satisfied by letting this one nice famous man go? Rewrite the law so that it only covers the activity that the government believes deserves prosecution, so there is equal justice under the law.

Exactly. And this is why the one justification for not charging Gregory on the NDAA  list, q. Whether the size of the loss or the extent of the harm caused by the alleged crime is too small to warrant a criminal sanction, doesn’t support Nathan’s decision. If what Gregory did is too small to warrant punishment, then the law shouldn’t be on the books at all. Meanwhile, the harm of not prosecuting a high-profile violator because he had good intentions validates all manner of crimes. Yet the elite in the media, academia, politics and other professions really believe they should be immune.

Take the case of Aaron Swartz, for example. The Reddit co-founder just killed himself, in part, it is believed because of depression brought on by his prosecution for extensive computer hacking. In a disturbing essay, Timothy Lee argues that despite the fact that Swartz hacked into an MIT computer to steal (Lee, incredibly, says “liberate”—the Sixties live!) articles from a for-pay service, he shouldn’t have been prosecuted. Why? Because he was an innovator! Because he was an idealist! Because he had “a sense of humor!”

Because he had what Lee thinks was a good reason to steal academic papers and to hack a computer to get them, just as Irving Nathan thinks that promoting gun control justifies flagrantly breaking gun laws.

The message this sends to everyone who isn’t rich, famous, influential and brilliant could not be more disheartening, or more un-American. Gregory and Swartz broke laws and among the reasons, along with their “good intentions,” was the arrogant belief that they were so special and privileged that laws shouldn’t apply to them.

That alone demands prosecution.

[Ethics Alarms 2012 ethics blogger of the year Rick Jones expounded sharply on the Swartz prosecution here.]

__________________________________

Sources: Washington Times, Washington Post, NDAA, Althouse

43 thoughts on “Dangerous Messages: Excusing Aaron Swartz, and the Unethical Non-Prosecution of David Gregory

  1. “Essentially what this excuse means is that journalists, especially celebrity journalists like Gregory, are permitted to break the law whenever it suits them.”
    This is more a question from a lay-person pov, but I am curious about the implied assertion context is not relevant. The above statement assumes a celebrity like Gregory can break “the” law whenever it suits him, but does not take into account if there is a history for such. Has he a propensity? It may be true Gregory broke “a” law to suit himself, but the broader context was as a reporter. I would probably have been satisfied with a report if he had used plastic replicas; could his points have been as profound? If your point is “the law is the law;” he should be prosecuted and rely on the fair judgement of a judge and/or court to show leniency and hope for the minimum fine or a suspended sentence, I cede to your expertise.

    • I don’t see the propensity as crucial or within our power to guess at. We do know that when he thought breaking a law was worth doing to make a point, he did it, and that it is unlikely that he would have done it if he thought it would land him in jail. Thus he probably assumed that the role of reporter includes some immunity from prosecution when others engaged in the same acts would be prosecuted without hesitation.

      There is no basis for that assumption—or wasn’t until now.

  2. Jack, you asked “I don’t see any category encompassing an intent to promote the First Amendment purpose of informing an ongoing public debate about firearms policy in the United States. Do you?” I do. Laws may be facially constitutional but unconstitutional as applied. DG may be a big shot, but he is a big shot journalist. That said, if a minor journalist were to be prosecuted, then I would lose respect for the prosecutor. But a prosecutor always can choose to not prosecute a case that may well be dismissed because the law is unconstitutional as applied.

    • There is no question in my mind that if a gun advocate had produced the same clip, he would have been prosecuted. That’s certainly what the gun-side blogs are saying, and its a fair assumption.

      And you’ll have to explain to me how a clear, unequivocal law like that one could be unconstitutional if applied to everyone who violated it with an arrest. If it was only applied to Gregory, sure, that raises First Amendment issues. But if he does what every other defendant does?

  3. This brings to mind all the cases brought against defendants who the prosecutors clearly state probably were not aware of a law but “should have known”. No leniency there. The hypocrisy from our prosecutors is infuriating.

  4. History is full of people who broke the law with good intentions. They also knew they were breaking a law and were willing to accept the consequences in an effort to achieve an ethical and moral end. If David Gregory believes what he suggests in the gun control debate then he should put his money where is mouth is and admit that the Attorney General made a bad decision in this situation.

  5. It really does seem like the laws are not made with people like David Gregory in mind. The laws are made to keep the common people in their place. David Gregory would most certainly demand the prosecution of any commoner in D.C. who pulled such a stunt on YouTube, but he correctly knows that it is OK for him to do it because the laws weren’t meant for him.

    This is why so many anti-gun activists can make fun of the NRA for demanding armed guards in schools while they send their children to private schools with armed guards. This is why so many celebrity anti-gun activists can demand that citizens lose their firearms all the while employing armed bodyguards. This is why anti-gun legislators can demand that people shouldn’t be allowed to have firearms while having multiple concealed carry permits. This really is the elite making sure the ‘rabble’ isn’t threatening to them.

    • This is why so many anti-gun activists can make fun of the NRA for demanding armed guards in schools while they send their children to private schools with armed guards. This is why so many celebrity anti-gun activists can demand that citizens lose their firearms all the while employing armed bodyguards. This is why anti-gun legislators can demand that people shouldn’t be allowed to have firearms while having multiple concealed carry permits. This really is the elite making sure the ‘rabble’ isn’t threatening to them.

      Has anyone confronted their hypocrisy on TV?

      • Sometimes they do. Rosie O’Donnell went on an anti-gun rant on Letterman, I believe. Letterman brought up the fact that she had multiple armed bodyguards. She said that it was OK (for wealthy people) to be protected by professional armed guards, but normal people shouldn’t be allowed to have guns so people like her could feel safer. Dianne Feinstein had 6 or 7 concealed carry permits while campaigning against guns. She gave them up when that became inconvenient.

        Maybe that should be the litmus test for gun control. If the gun control activists will write into their laws that no elected official and no police officer can possess a firearm or employ guards armed with guns, then we will know if they truly believe that their ‘solution’ to gun violence will work.

  6. Jack,

    Did you also have a post up your sleeve regarding the apparent relationship between David Gregory’s wife and Mr. Nathan? I am not saying that there is necessarily a conflict of interest there, but there is certainly a strong appearance of such.

    Thanks,

  7. Jack, your summary of Tim Lee’s view is unfair. In the essay you link to, Lee’s only direct comment on weather or not Aaron Schwartz should have been prosecuted is:

    As I said at the time of Swartz’s arrest, his actions were foolish and some punishment was probably appropriate. But he probably shouldn’t have been the subject of a criminal indictment and he certainly shouldn’t have faced felony charges.

    The statement is linked to Lee’s longer and more detailed discussion of this exact question, in which Lee writes:

    To be sure, it’s ridiculous that Aaron’s facing felony charges for non-violent actions that caused no lasting damage. Aaron’s actions are in a very different moral category from LulzSec-style “hacking,” and the law ought to reflect that with a much less severe penalty. It would be unjust and a terrible waste of Aaron’s considerable talents if he spent multiple years in jail. But it’s not “strange” or “bizarre” that he would face charges for repeatedly trespassing on MIT property to gain unauthorized access to the MIT network.

    To describe Lee as saying “he shouldn’t have been prosecuted’ is simply inaccurate. Lee is saying that the prospect of three decades behind bars for what was essentially a political prank is vastly disproportionate to the harm done.

    Regarding Gregory:

    To the contrary, D.C. aggressively prosecutes this law.

    To me, this is the crux of the question, and for that reason I wish that you had linked to some evidence to support your claim here.

    In particular, I want to know if other people who get caught with an illegal clip, but have never broken the law before, never used the clip in a firearm, and who didn’t have any intent of committing a further crime (such as selling the clip on the black market) are always prosecuted. If they are, then Gregory should be prosecuted, and not prosecuting him is as terrible as you claim.

    But if there have been other first-time, harmless offenders who are let off with a warning, then letting off Gregory seems fair.

    Whether the alleged crime represents a substantial departure from the accused’s history of living a law-abiding life. Yes, this applies, but this is usually taken into consideration in sentencing, not prosecution.

    It’s on the list that you yourself have put forth as if it were authoritative. What you’re doing here is just special pleading – you’re saying that we should treat the list as authoritative when it doesn’t help Gregory’s claim, but ignore what the list says where it does help Gregory’s claim.

    If this list is binding on prosecutors, then it should be binding, period. What you seem to want is a special, unwritten rule that anything on the list can be selectively ignored when it comes to putting someone whose politics you don’t like behind bars.

    Finally, you know perfectly well that there’s no rule against a prosecutor considering a factor that a judge would also consider later in the process. You could dismiss many of the items on the list you yourself quote by saying “yes, but the judge could consider this in sentencing.” if the list has validity, then clearly a prosecutor considering a factor that a judge might also consider has validity.

    Whether the size of the loss or the extent of the harm caused by the alleged crime is too small to warrant a criminal sanction.

    Again, this seems like a reasonable item to apply for Gregory’s benefit.

    Regarding that list, you’re writing as if it says “these are the only legitimate grounds for a prosecutor to use when declining to prosecute, and no other grounds are acceptable.” But of course, that’s not the case. Although you don’t quote this part, the list is introduced as “Factors that may be considered in this decision include:” It says “may” and it says “include” as opposed to “are limited to.”

    Furthermore, the list goes on to list factors that prosecutors may NOT consider – and freedom of the press is not on that list. There’s no fair way to read this document the way you want to read it, which is as saying that it’s unethical for prosecutors to consider factors like “freedom of the press” when considering if and what charges to file.

    • Barry: Regarding Swartz-–“probably shouldn’t have been the subject of a criminal indictment and he certainly shouldn’t have faced felony charges” sure sounds like saying he shouldn’t have been prosecuted to me. You can’t be prosecuted for non-criminal acts. And you just double down on Lee. Stealing millions of files and giving them free of charge to others is theft. That’s what it is. I think the penalties being sought were excessive. But what he did was criminal. There’s no other way to describe it.

      Regarding Gregory: I don’t think the list helps Gregory’s case anywhere. The list is advisory—it describes best practices, as laid out by Nathan’s profession. He can’t be disciplined on this basis, but then, almost nothing will get a prosecutor disciplined.

      As to this, the sole possible justification on the list: “Whether the size of the loss or the extent of the harm caused by the alleged crime is too small to warrant a criminal sanction,” of which you say, “Again, this seems like a reasonable item to apply for Gregory’s benefit.” Nope, it cuts the other way. NOT prosecuting Gregory does more damage, by empowering the press to break laws, by sending the message that there is a double standard, by undermining the integrity of the justice system.

      And using the “DON’T” list like that doesn’t pass the giggle test. If exercising the First Amendment to attack the Second was a legitimate reason to non-pros (as we used to say in the DC prosecutors office), it would have been on the OTHER list. Also not on the “Don’t” list: don’t fail to indict because you think the perp is hot; don’t non-pros because he roots for the Red Sox; don’t non-pros because he smells good. Because the DON’T list isn’t exhaustive doesn’t mean that anything goes. Such lists include the TYPE of consideration that shouldn’t be included, and I think that cust hard against your argument, and Nathan’s

      4-1.4 Factors Not to Consider
      Factors that should not be considered in the screening decision include the following:
      a. The prosecutor’s individual or the prosecutor’s office rate of conviction—Because he’s a celebrity, Gegory would be a tough case to win in the District. This might have been on Nathan’s mind.
      b. Personal advantages or disadvantages that a prosecution might bring to the
      prosecutor or others in the prosecutor’s office; HMMMMMMMMMM!!!
      c. Political advantages or disadvantages that a prosecution might bring to the
      prosecutor; DOUBLE Hmmmmmm. This is the District, with an entrenched anti-gun, Democratic government and constituency.
      d. Characteristics of the accused that have been recognized as the basis for
      invidious discrimination, insofar as those factors are not pertinent to the elements or motive of the crime. Yes, journalists get away with all sorts of crap; it’s not “invidious” by law, but this decision MAKES it invidious in fact. And those elements are NOT pertinent to the elements of the crime. NOR the motive. Committing the crime was not necessary for Gregory to make his point.

      I probably should have included this list as well, because it bolsters my argument.

      • That’s what it is. I think the penalties being sought were excessive. But what he did was criminal. There’s no other way to describe it.

        And that’s how Lee did describe it.

        • If it’s criminal, then it should be prosecuted. And he described theft as “liberation” a deceptive euphemism if I ever heard one. Abie Hoffman liked it, though. And he didn’t regard liberation as theft. It’s a self-contained rationalization.

          • Yes, Lee soft sells what occurred, but you oversell how much he did so. Part of Lee’s attack was that this kind of rule breaking shouldn’t be a felony… that the law should be different from what it is.

            • I don’t see how taking millions of files is anything but mass theft, except in the weird logic of the file-sharing community. The broken rule wasn’t the only issue. The headline was that Swartz shouldn’t have been prosecuted—and he clarly should have, though not as relentlessly as he was. It’s pretty simple. Lee’s wrong; I’m right.

              • * You’re generally right.
                * Lee’s more wrong than right.
                * Your description of Lee is more right than wrong, but that still makes it wrong.

                  • Would you like me to write a 30 line argument with only one invalid connection that leads to the conclusion that we should kill all children? If something’s wrong, it’s wrong.

                    • No, but that’s not an analogous test. If Shelby Foote’s Civil War trilogy has the dates of The Wilderness Campaign off by a day, that doesn’t make the whole project “wrong.” If he incorrectly assesses the reasons for the Union victory on Little Round Top (Foote has a Southern bias), it still doesn’t make the whole thing “wrong.”

                    • Your example doesn’t parallel mine. What you came up with is likely a trivial issue. Now, if there’s a comment about specific information Grant got on May 8th that caused him to disengage, then, the mistaken data would be material.

                      It would also make only that piece of the project wrong, not necessarily the whole thing. I never claimed that your entire argument is wrong because of overstating Lee…Just that your comments about Lee are wrong.

                      When you exaggerated Lee’s comments, you were wrong. That you said other things right and that your overall point was right does not change the fact that you were wrong on one piece of it. If we don’t call out things that are wrong in generally good arguments, then we validate false information and cutting corners. This isn’t the first time that you’ve made a bad guy (or suspected bad guy) out to be worse than he is.

      • Stealing millions of files and giving them free of charge to others is theft. That’s what it is. I think the penalties being sought were excessive. But what he did was criminal. There’s no other way to describe it.

        Schwartz never gave the files away. You’re mixing up the intent to commit an action with the action itself.

        Schwartz was an authorized user of Jstor. For an authorized user to download files from Jstor is not “theft.”

        What Schwartz did was break the terms of the Jstor website’s user agreement – those three screenfuls of tiny print you scroll through and hit “I agree” at the end – by using a download manager to download files, rather than downloading them one by one.

        You seem to believe that violating the terms of a website’s user agreement is theft and a felony. That’s not something that’s even remotely clear under the law. (Jstor, the alleged victim of theft here, didn’t support the charges against Schwartz.)

        The 9th Circuit Court of Appeals ruled that breaking a websites terms of service is a matter for civil lawsuits, not criminal prosecution. (I realize their ruling isn’t binding in Massachusetts, where the question hasn’t yet been litigated afaik – I bring it up to point out that an interpretation of the law that you think is beyond question, has in fact already lost in a major court.)

        Jstor has an agreement with MIT, as I understand it, to allow their files to be downloaded free of charge from any computer attached to their network. Schwartz took advantage of this by allegedly sneaking into a closet on MIT in order to connect to MIT’s network. That might be trespassing, but it’s not theft.

        As an analogy: If I steal a book from the library, that’s stealing. But if I hide in the library until after it’s closed and then read a book at the library, I haven’t stolen the book, and charging me with theft is not reasonable. (Trespassing is the correct charge.)

        Schwartz should have been charged with trespassing (he was legally allowed on MIT’s campus, but as I understand it, the closet he entered was not a public area.) In Massachusetts, that would have gotten him at most 30 days. That would have been the appropriate charge.

        • My error was confusing what Swartz did with PACER and what he did with JSTOR. With PACER, he indeed took files he should have paid for and gave them to others. With JSTOR, he took the documents with the intent to distribute them, a fair assumption based on the PACER heist. He also crashed the system. He was a criminal.

          I haven’t read the 9th Circuit’s opinion, and that Circuit is often whacked, so it qualifies as a separate issue. The holding as you stated it seems reasonable, but breaking terms of a website to take its proprietary data and give it away is, or should be, criminal. I agree with Massachusetts. I would not have sought prison time under these facts.

          • In the PACER case, he downloaded the documents when PACER was offering them free and expecting no payment, so I don’t see why you think he should have paid for them. And PACER documents are copyright-free, so giving them away is not in any way illegal.

            I don’t think breaking terms of a website agreement should be criminal. Website terms of service aren’t written by an elected legislature that can be held accountable for the laws they pass; they’re written by a corporation. Writing a website terms of service should not give the website owner the legal power to decide what is and isn’t a criminal act.

            And a law that Congress didn’t write or pass to enforce website terms of service shouldn’t be used that way; using them as the prosecutor did is an end run around the democratic process.

            If Jstor wants to hold Swarzt or other users accountable, they are free to sue for civil damages. That’s the appropriate venue for seeking justice when it comes to something like breaking the terms of a user agreement.

            You can’t say “I agree with Massachusetts” and “I would not have sought prison time under these facts,” because they are contradictory statements. Just as Swartz was obviously intending to give the Jstor documents away, Massachusetts was obviously seeking prison time.

            • 1. My info says Pacer charged 10 cents a page. What’s your source? That’s a key detail. He was not charged for the PACER incident.
              2. I would indict him to send a message, make sure there was restitution for any actual damages, make sure the files were returned (which they were), and seek a plea deal where there would be a fine and probation. Prison time is a stick, but a last resort in a case like this. I don’t understand why the feds were so determined to put him in jail, unless Aaron was refusing to plead guilty on principle, in which case he wanted to go to jail as a means of protest.

              And of course, his death is moral luck. Using that to demonize the feds is unfair—he didn’t have to kill himself, and it wasn’t a predictable outcome. Demonize the feds for over-charging.

              • 1, Every news report of the PACER incident I’ve read has said that the government was giving away free access to PACER at 17 libraries, and that Swartz went to one of those libraries to download the papers. See Wired for one example of many: http://www.wired.com/threatlevel/2009/10/swartz-fbi/

                2. The law Swartz was charged under was written by congress to target hackers – people who gain illegal access to other people’s servers and then mess around with their code or steal data that isn’t available to them legally (like credit card numbers). Congress didn’t write it intending to get who violate website terms of service; Congress has never passed a law making it a felony to violate website terms of service. Indicting him is wrong and unethical because as a prosecutor your job is to enforce the laws Congress wrote, not to in effect make up your own laws in order to “send a message.”

                If violating terms of service is a felony, then unelected web designers decide what is and isn’t a criminal act. That’s not the way things should be run in a democracy.

                • If violating terms of service is a felony, then unelected web designers decide what is and isn’t a criminal act. That’s not the way things should be run in a democracy.

                  It would also allow Jack to get any of us to commit a felony at any time by simply editing his terms of service to specifically exclude any of us, or say, people from Texas.

                • From Wired (2009)

                  “The FBI ran Swartz through a full range of government databases starting in February, and drove by his home, after the U.S. court system told the feds he’d pilfered approximately 18 million pages of documents worth $1.5 million dollars. That’s how much the public records would have cost through the federal judiciary’s pay-walled PACER record system, which charges eight cents a page for most legal filings.”

                  • That’s the accusers statement. I assume this was your reference: http://www.wired.com/threatlevel/2009/10/swartz-fbi/

                    If you read further down in that article, you’ll see: “The Great Court Records Caper began last year when the judiciary and the Government Printing Office experimented with giving away free access to PACER at 17 select libraries around the country. Swartz decided to use the trial to grab as many of the public court records as he could”

                    All those records were free for him to download at the library he downloaded them from. It was part of the free trial. The judiciary allowed something to occur, and then got pissed because they didn’t understand what they had actually done.

                    • If accurate, isn’t this like someone backing up a truck to an “all-you-can-eat” buffet and taking tons of food for $6.95? Clearly unethical, and the case can be made that it’s theft, especially if the food is given away to others.

                    • All you can eat buffets require you to eat the food on the premises; they’re not “all you can take away” buffets. The library giveaway of PACER docs, on the other hand, was assuming that people would be taking their downloads away from the library.

                      A restaurant’s food is someone’s property; uncopyrighted public documents are not property. And unethical or not, it’s clear that he broke no laws in the PACER case, so using that to justify charges against him in an entirely separate incident is unwarrented. You don’t get to use criminal charges to punish someone for an unrelated incident that broke no laws, at least not in a free country.

                      Also, returning to something I said earlier, I don’t think it’s safe to assume that because he once gave uncopyrighted material away (which is legal), he must have intended to give the copyrighted Jstor materials away. He held onto millions of Jstor documents for months without giving even one file away, and there’s no evidence that his intent was to give the files away.

                    • Does the buffet allow you to take food out? If so, then the buffet was stupid. More importantly, we’re discussing the legal backing for the charges here. Your switch to ethics is inappropriate.

  8. What is the point of having a law (a felony at that) if blatantly violating it does not justify prosecution under the law? The reason to have such a law is that it allows you to have selective prosecution. If merely possessing an illegal clip is no big deal, then why is it a felony? It is a felony because it lets you slap felony charges on people you want to, but let others walk free. If you want a way to breed contempt for the law, this is it.

    A report on our local station stated that the average person breaks several laws a week and a few felonies each year (OK, it is local news and probably very dubious statistics), but it had a good point. If we have so many laws that EVERYONE is a lawbreaker. If EVERYONE is a felon,then the law isn’t a big deal. EVERYONE does it. Getting caught is just a matter of luck. The government just randomly picks people to punish, or punishes certain groups just because it can. What kind of society does that? What kind of society does this create?

  9. What this all boils down to is that, in modern society, the well-connected get a pass. Not just clandestinely, but right in your face. This manages to go a step beyond “Animal Farm”. So does the fact that the law (unconstitutional to begin with!) is still applied unequally. The 1st Amendment applies to all. Freedom of the Press does not mean “immunity”.

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