And you're conveniently neglecting the fact that he snuck into the closet (identity obscured by bike helmet over his face) to plant a laptop and tap directly into their LAN to download the stuff. They had noticed the illicit activity on their network and traced to lines to the laptop and closet, then had to set up surveillance to see what was up and catch the culprit. When they were engaged in trying catch him, they had no idea he was everybody fav child internet prodigy. The theft was of services as well as of those items of intellectual materials that were not already in the public domain, plus the more basic issue of burglary and tampering with communications facilities that he had no business tampering with. His authorization to access these materials derived from his affiliation with Harvard and presumably he was expected to access them by logging on through Harvard's network, subject to any validation checks and bandwidth limitations that might apply. Being a prodigy or a genius or a creator of a cool website or a depressed egghead doesn't mean that you're above the law. If theft had been carried out by some hacker named Joe Schmoe from a local community college, would every one be making the same excuses and singing the same eulogies? I doubt it. He was known to have been depressed for years, at least since 2007. The questions people really should be asking are whether he was receiving proper professional treatment for his depression and if not, why not.
No, having the victim ask for the charges to be dropped, and instead having the prosecutors more than triple the penalty does. From the blogosphere: Ah, yes, motive. Save the faux populist concern for Joe Schmoe, the prosecutorial disparity is obvious. MIT volunteered information, no subpeona needed. The parties interested in the politically-motivated prosecution are probably pleased by the death of the target, saving additional expenses.
Also, the feds dropped the trespassing charge (going into the closet) - so no, I didn't neglect that issue.
It's unlikely to be a federal issue. That would have been dropped by the state when the feds took over the rest of the case. The point remains, however, that the surreptitious manner in which he undertook this endeavor does not work out in his favor.
Great conspiracy theories here ... At the end of the day it appears he still entered a closet he had no business entering, tapped into a network he had no business tapping into, and pilfered 4.7M documents. Unfortunately for him (and of his own doing) he will no longer have his day in court to prove that it was all overblown.
If they could have used it in any way, they would have. They didn't. They dropped it. Acting in a surreptitious manner does not make one guilty.
Wrong. Go read about the Lori Drew case -- another case of government overreach via the Computer Fraud and Abuse Act. Lori Drew could arguably win the 'worst mom ever' award for her actions. Instead, she had everyone writing amicus briefs on her behalf. Not because anyone thought she was a great person, but because the prosecution wanted to convict her, couldn't find any way to convict her, so decided to try a novel use of the CFAA. Thankfully they failed.
How could they not drop if tresspassing itself is not a federal crime? I can't remember when I last saw a federal prosecution for trespassing in a private or state-owned building? Never?
The parallel to the Lori Drew case is the use/abuse of the Computer Fraud and Abuse Act. The issue is exceeding authorized access to a protected computer.
They would have used it to show motive (or something else), but they dropped it completely. And sneaking into an unlocked closet isn't a crime. And let's say for the sake of argument that his 'sneaking' is somehow a crime. It still doesn't allow for all of the CFAA shenanigans.
There's no parallel. Lori Drew used a normal internet connection & signon. The issue was whether a violation of the T&C was a criminal act once she was logged on. Here's the Daily Mail's description of Swartz's activities:
Depends on how the closet & building are marked. But tapping into the LAN definitely was criminal. Sorry, but your chum screwed up, big time!
First of all -- The Daily Mail? Really? Really? Cuz yeah, they're all such legal scholars over there. And -- a network that was open to all? Feds go overboard in prosecuting information activist Here's an important part in the above article: This isn't to say that Swartz is wholly innocent. Assuming the facts in the indictment are true, Swartz is something like a digital trespasser. Under Massachusetts law, such trespassing is punishable by a $100 fine and up to 30 days in prison. That seems about right: if he's going to serve prison time, it should be measured in days rather than years.
Turns out his PACER project wasn't so white hat either, although apparently they never found the evidence to pin it on him. Stolen signons from two libraries participating in a free PACER access project were used outside the libraries to download millions of documents. Here's a good read on the PACER effort: PACER, RECAP, and the Movement to Free American Case Law
Sorry, don't buy that. He download 4.7M documents. The router in the closet wasn't there for him. There was a reason they had noticed excess usage, traced the lines, etc. "Just because you can" and the door happens to be unlocked doesn't make something legal. Sorry, but there was a side of the guy that was a crook.
Provide free access to them. With PACER that's not an issue, as long as you obtain them legitimately in the first place. PACER documents are all public records. What you're paying for is access. With JSTOR, that's an issue, because their archives contain many documents that are NOT in the public domain. The document's owners may have granted JSTOR permission to manage they, but they are still subject to original copyrights and others shouldn't presume to have the legal right to redistribute them.
