Go up to your mother and tell her a story that involves someone breaking into restricted closet at MIT, plugging into their network, evading electronic attempts to stop him, and downloading millions of scientific articles that normally are sold for a fee. If your mother is anything like mine, she won't be able to fathom why anyone would do something like this unless he were up to no good.

Swartz did not innocuously do anything. He willfully violated laws designed to proscribe exactly the conduct he was engaged in, conduct that to your average person smacks of criminal activity. Legislators, who think more like my mother than they think like you or me, intended to prohibit Swartz's exact conduct. The prosecutor here was doing exactly what my mother or my Congressman would consider the right course of action in such a situation.

At the end of the day you have to tackle the real problem, which is this: my mother understands the difference between joy riding and grand theft auto. That's within the wheel house of her experience. People interested in "information freedom" or even just proportionate punishment in these situations need to be able to make a case to my mom about why downloading JSTOR articles on MIT's network isn't the same thing as hacking into Bank of America's servers to steal credit card numbers.

After telling your mother that story about Swartz, tell her a bunch of other stories about a bunch of other potential federal cases, and then tell her she has the resources to prosecute just a subset of them. Prosecutors are always complaining about not having enough resources, after all. See if she likes the feeling of arbitrarily choosing which of a whole bunch of people get a taste of federal justice, and which go free. Explore the rationale your mother uses to make her decisions. Do political considerations ever come into it? Does settling a grudge? The ability of the defendant to defend himself?

I don't get why you're bringing up 'information freedom' or other red herrings. I'm not particularly interested in that or the rest of Aaron's politics, which were rather far from my own. I'm not even trying to argue that Aaron's actions were harmless (although it's true I don't see any significant harm resulting from them). I'm just stating that the real problem is too many laws on the books, prosecuted selectively by people who don't have to justify why they pursue the cases they choose to pursue and ignore the cases they choose to ignore. Arbitrary power. Rule by man, not by law. Something that threatens every one of us, no matter what we think of Aaron's actions.

You mean "convince", not "remind". You're trying to persuade people here, not remind them of something they already believe. Bear this in mind when trying to refer to what you think "the real problem" is, else you might say things that only sound convincing to people that already share your views.

You mean you can describe "crimes" in such a way that a technically naive outsider draws the knee-jerk reaction that you want? Stunning! You should be a lawyer or something.

Also, what does being "technically naive" have to do with anything? Do you need to be well-versed in the technology to know that Swartz was doing something on MIT's network that MIT did not give him license to do?

As you know, what you omit is just as important as what you include. Now yes, if I say "JSTOR had no continued beef with Aaron", a lawyer would (correctly) respond that this hardly matters since they are not the ones expected to press charges. Does the fact that this is then legally irrelevant make it irrelevant to a member of the general public who is forming an ethical, rather than legal, opinion? Hardly.

Similarly, the response you will get from, say, your mother to "evading electronic attempts to stop him" is different from the response you will hear from many people who actually know and understand exactly what that entailed. Why do you think that is? Blind loyalty to someone they probably never met?

Then there is the issue of "accessing a restricted closet at MIT"/"breaks into a restricted closet at MIT". Pretty damning, even to me. Sounds like there was certainly a crime happening here. Is it important that we point out that trespassing charges were dropped? I am inclined to think so.

Merits of all of these points aside, the point is that you can be factual and make a layman think whatever you want. What they conclude in response to any particular wording is entirely irrelevant.

There is a reason trials involve a lot more than just having the prosecution explain the situation to their mother.

To address some of your specific points:

> Now yes, if I say "JSTOR had no continued beef with Aaron"

What about MIT?

> Similarly, the response you will get from, say, your mother to "evading electronic attempts to stop him" is different from the response you will hear from many people who actually know and understand exactly what that entailed.

Do you think ordinary people draw an ethical distinction between changing a MAC address and more complex measures? Should they? Does that change the underlying intent?

> Why do you think that is? Blind loyalty to someone they probably never met?

How about cultural differences? My mother thinks that smoking marijuana is seriously wrong and a danger to society. Most people in say Berkeley, CA, do not. Until relatively recently, the former opinion was more prevalent. People who frequent Hacker News do not think it's a big deal to change your MAC address to get onto a network that MIT doesn't want you to be on. That sentiment isn't universal.

> Is it important that we point out that trespassing charges were dropped? I am inclined to think so.

Now whose being the lawyer? Does the fact that the trespassing charges were dropped change the fact that MIT didn't want people going into that closet?

All I'm trying to say is that there are two different things to you could rant about.

1) A prosecutor abusing her discretion to target someone for activity that people think are harmless.

2) Laws that don't recognize that certain kinds of network intrusions are more harmful than others.

Everyone on HN is going after (1), because they are steeped in a cultural context that considers what Swartz did no different than someone cutting across a private lawn. But that sentiment is not universal, and I'd argue that it's not even common. The correct answer here is (2).

You see, omission is fun! Needless to say though, I am looking forward to hear what Abelson concludes concerning that.

> Do you think ordinary people draw an ethical distinction between changing a MAC address and more complex measures?

No, I do not think that ordinary people would. Once again, part of the problem.

> How about cultural differences?

I am not sure comparisons to the war on drugs does anything to alleviate my concern.

> Now whose being the lawyer?

Omitting MIT's position didn't tip you off? That's your trick, not mine.

> Does the fact that the trespassing charges were dropped change the fact that MIT didn't want people going into that closet?

In your one-sided "prosecutor sits down with his mother for some tea and justice" system? Yes, I think it is very relevant.

> 1) A prosecutor abusing her discretion to target someone for activity that people think are harmless.

> The correct answer here is (2).

Here is the deal. I think the prosecutor acted legally. I have no reason to suspect otherwise. More importantly, I think the prosecutor acted typically. I have no reason to suspect that this was the prosecutor lashing out in any sort of 'personal' way.

But more importantly than both of those, I think that the prosecutor acted unethically.

That position may be uncommon, but that coupled with your personal or professional disagreeance does not render it incorrect. The correct answer is (1) and (2).

I think the drug war example is apropos. I don't really blame federal prosecutors over the last 30 years (say until the recent legalization efforts). They were acting consistently with the thinking of an entire generation of "just say no" and "zero tolerance" moms and dads.

Or, to be clear, do you think the correct amount of discretion was exercised when they went after Aaron with over a dozen felonies?

Is 35+ years in prison an ethical punishment for what he did, or isn't it? Is that what he deserved?

I do not think 35 years in prison would have been an appropriate punishment for what Swartz did, but he wasn't sentenced to 35 years in prison. Being charged with counts that could carry up to 35 years is totally different than being sentenced to that amount of time. Ultimately, sentencing is the domain of the judge, and in this case the judge never got to make the call. And I don't mean that in a legalistic sense--simply describing the status quo. It's the engineer in my that admires the division of responsibilities inherent in our system.

I don't know. I suppose I am just naturally suspicious of anything that allows someone to witness an injustice, take part in it, then wash their hands and declare that it wasn't their problem. Something about that just seems wrong to me.

If we can't trust federal prosecutors with discretion because of past abuses, that's a specific and reasonable objection. But "other parties thought it was a good idea" dodges a lot. A prosecutor may be the first person available to witness how the law is being misapplied.

As convincing as ever.

Am I supposed to take it as indicative of anything particularly relevant that he thinks he could convince his mother that multiple felonies were committed here?

Of course that means fuck-all in a discussion about ethics.

What does your class warrior attitude have to do with anything? I'm not sure what country you are from but in the states law school is three years and the majority of students graduate with mountains of student debt. Its hardly what I would call "pampered school dayz[sic]."

Everyone I know, technical or not, is completely capable of understanding these things are different just based on that sentence alone. I don't know anyone at all that would say the two things were equally serious.

If my mom were still around, I'm 100% positive she would see the difference.