03 March 2013

On Aaron Swartz

EDIT (3/3/2013): I originally wrote much of this post soon after Aaron's death, but did not publish it. I didn't know Aaron, and didn't feel it was appropriate to comment on his situation given the circumstances of his death. I knew that some of the things I intended to write might be unpopular. That being said, now here are my thoughts.
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I never met Aaron Swartz, but I was familiar with his work. While we were, in some ways, on different sides of the political spectrum, I particularly identified with this comment of his about curiosity:
When I was a kid, I thought a lot about what made me different from the other kids. I don't think I was smarter than them and I certainly wasn't more talented. And I definitely can't claim I was a harder worker -- I've never worked particularly hard, I've always just tried doing things I find fun. Instead, what I concluded was that I was more curious -- but not because I had been born that way. If you watch little kids, they are intensely curious, always exploring and trying to figure out how things work. The problem is that school drives all that curiosity out. Instead of letting you explore things for yourself, it tells you that you have to read these particular books and answer these particular questions. And if you try to do something else instead, you'll get in trouble. Very few people's curiosity can survive that. But, due to some accident, mine did. I kept being curious and just followed my curiosity.
How many of you does this fit? I know it explains me pretty well.

His tragic story is a life ended far too soon.

Is the CFAA Act outdated and vague? Yes.

Are the penalties disproportionate to the crimes? Probably.

Does it need to be updated? Yes (Although naming it "Aaron's Law" is a bad idea).

Regarding Aaron's actions, I can sympathize with almost everything he did--switching access points, changing his MAC address to bypass blocks, finding his away around the countermeasures put in place. The one thing that gets to me in this:


There are some suggestions that this wiring closet was not locked; personally, I don't think it makes a difference. What does matter is that Aaron covered his face with his bike helmet as to attempt to not be identified. This is pretty compelling evidence that he knew what he did was wrong. As Orin Kerr has noted, this is compelling evidence of both CFAA and wire fraud violations, even under the reforms that groups like the EFF have put forward.

Aaron Swartz was not prosecuted for terms of service violations or for his thoughts. We can argue over prosecutorial discretion and whether or not those charges should have been brought, especially given that JSTOR had declined to do so. But that is a wholly different argument that whether he actually violated the CFAA.

Prosecutors often throw out big numbers to scare people. 35 years!

Defense attorneys and others who don't like the laws will often throw out big numbers to try to demonstrate the absurdity of those laws. 35 years!

The reality, by most honest accounts, is that Aaron was offered a plea for six months. And it's true that Aaron would have been labeled a felon.

Regarding prosecutorial discretion: If you think prosecutors should take it easy on defendants that may show signs of being suicidal, perhaps your heart is in the right place. However, if that were true, every defendant in the history of defendants would proclaim to be suicidal. In the race to "do something" as we tend to do in the aftermath of tragedy, we ought to consider that prosecutorial discretion is a good thing as much as a bad thing.

The loss of Aaron Swartz is a loss for the community at large. We should celebrate his life by supporting efforts like Fork the Law. On the other hand, it is important not to overreact. There are a handful of abusive CFAA cases; most of them are not at all controversial like Aaron's. Our responses ought to be measured to right the actual wrongs, not the perceived or imagined ones that get whipped up in the emotions of a tragedy.
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