January 31st, 2013

Aaron Swartz: Another View

Unlike many in the on-line community, I have no sympathy whatever for the late Aaron Swartz. I am sure his untimely death is a great sorrow to his family and those who knew him, and they have my commiserations for their loss. However, in my (acknowledgely arrogant) opinion, what befell him was the result of his own bad judgment.

The facts are not in dispute: Mr. Swartz gained unauthorized access to a restricted area at MIT, connected a laptop computer, and downloaded thousands of documents that JSTOR (Journal Storage) archived, with intent to make them freely available on the Internet. Mr. Swartz, as a Harvard research fellow, had a JSTOR account, so his basic access wasn't unlawful, but the mass downloading exceeded his authorizations. And, of course, he had no authorization to tamper with MIT's equipment.

Now, if we were speaking of physical property, what Swartz did would have been considered Burglary (loosely defined as entering the premises of another without the others' consent, with intent to steal or commit a felony therein) and Theft (taking and carrying away the property of another without their consent, with intent to deprive them of the possession of it). Where things get gray is with data, which you can both steal, and leave the holder in possession of. There is precedent for such crimes in the pre-digital era though, such as Theft of Trade Secrets, which established that copying plans or client lists was still stealing.

Plain burglary, without enhancers such as "while armed" is a felony punishable by up to ten years imprisonment in most jurisdictions. Theft is typically classified by the value of the items stolen. If the documents taken by Mr. Swartz exceeded $10,000.00, the potential penalty would also be up to 10 years in prison. So, if one were looking at charges of only one count of Burglary and one of Theft, Swartz would have had "exposure" of up to twenty years in the penitentiary. Since he evidently, per the indictment, gained access to the server closet numerous times, each of which would be a separate count of burglary in the "material world," the Federal prosecutors' decision to issue charges carrying a potential 35 years imprisonment is not such a gross overcharge as has been alleged.

Mr. Swartz may have thought that his public position would shield him from prosecution, or that, given that he escaped prosecution for similar escapades involving the Library of Congress in 2006 and the Public Access to Court Electronic Records (PACER) database in 2008 he would not be prosecuted this time, but he misjudged.

In point of fact, Swartz was never in danger of going to prison for 35 years. Two days before his death, Federal prosecutors had told Swarz's attorney that Swartz would "have to spend six months in prison and plead guilty to [all] 13 charges if he wanted to avoid going to trial," which, from the point of view of an experienced former prosecutor and defense attorney, is a not at all unreasonable offer. Six months at a probably minimum security institution is about as light as it gets, federally speaking. One expects that the more onerous part of any sentence would have been the couple of years of supervision, which undoubtedly would have included serious restrictions of on-line activity.

As the song says, "If you can't do the time, better not do the crime." Having been around and paying attention during the Vietnam war era, I got disgusted with protesters who committed acts of civil disobedience up to outright sabotage, and, when apprehended, fought tooth and nail to stay out of jail on every imaginable excuse. They wanted to be romantic outlaws, but had no interest in being "prisoners of conscience," and no more did Mr. Swartz, evidently. He also apparently had no interest in making his case a court fight to give his causes a public airing, which would doubtless have happened had he gone to trial.

As for his suicide, I don't always agree with the rubric that suicide is "the coward's way out," but in this case, that judgment seems hard to argue with. Aaron Swartz was a bold Robin Hood of the Information Superhighway, until it appeared that he might have to suffer a bit for his actions. Then, he decided to take himself off the stage. I am not impressed. Let the curtain fall, without applause.

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More Gun Stuff:

Things other people have said, and my reactions to them:

Milwaukee County Sheriff David Clarke Jr.: I don’t often agree with Sheriff Clarke. However, when he says “"With officers laid off and furloughed, simply calling 911 and waiting is no longer your best option. You can beg for mercy from a violent criminal, hide under the bed, or you can fight back. ... Consider taking a certified safety course in handling a firearm so you can defend yourself until we get there," he is correct. In an interview with The Associated Press, Clarke said he just wants people to know what their options are. While self-defense isn't for everyone, some people see personal safety as their own responsibility, he said, and they should be trained properly.

"I'm not telling you to 'Hey, pick up a gun and blast away.' ... People need to know what they are doing if they chose that method — to defend themselves," he said.

"People are responsible to play a role in their own safety, with the help of law enforcement," Clarke said. "I'm here to do my part, but we have fewer and fewer resources. We're not omnipresent, and we have to stop giving people that impression."

Setting aside the political agenda—Sheriff Clarke is engaged in a battle with the County Board over funding which has resulted in his laying off some staff—he pretty much agrees with things I have said. The police can deter crime. The police can catch criminals. However, the police cannot be everywhere and cannot prevent a determined criminal from making an attempt. The instances in which police arrive on scene while a robbery, assault, or burglary is in progress are very rare. Thus, it is up to us to see to our own security, and how you do that is up to you. Whether that means keeping alert and staying out of “bad” parts of town, having good locks or a security system, learning martial arts, or carrying a personal alarm/panic button, pepper spray, Taser, knife, or gun, or none of the above, what you do is up to you.

Milwaukee Police Chief Ed Flynn: High on Flynn’s list of priorities is making the illegal possession of a concealed firearm a felony. Currently, in Wisconsin, it’s a misdemeanor. He’d like to see straw purchases of a firearm—purchases made for someone who cannot pass a background check—made a felony as well.

Flynn supports President Obama’s call for universal background checks, but he said he’d also like to see more red-flag disqualifiers for gun ownership. For example, habitual offenders—those with three serious misdemeanor convictions who Flynn calls “career criminals”— as well as felons should be barred from possessing a gun. Those with serious mental health issues or drunken driving convictions should also be (at least temporarily) disqualified, Flynn said.

“If you can’t control your drinking, you shouldn’t have a gun,” Flynn said. “Because when you look at deadly violence in Milwaukee, alcohol is involved an enormous amount of the time.

These are hard to argue with, although might be hard to implement. I would prefer to see any sort of “three strikes” rule qualified so that the three convictions must include crimes of violence, unless the chief can provide some statistical proof of a relationship between shoplifting or writing bad checks and gun crime.

Playwright David Mamet: “The individual is not only best qualified to provide his own personal defense, he is the only one qualified to do so: and his right to do so is guaranteed by the Constitution.” He argues that “It is not the constitutional prerogative of the Government to determine needs. One person may need (or want) more leisure, another more work; one more adventure, another more security, and so on. It is this diversity that makes a country, indeed a state, a city, a church, or a family, healthy. “One-size-fits-all,” and that size determined by the State has a name, and that name is “slavery.”’

Mamet also is taking the position that self-defense is both an individual right, and an individual responsibility.

NRA: The NRA has been stung by recently reported polls, which it describes as “bogus surveys by pollsters on the payroll of antigun groups,” which purport to show that 85% of NRA members support universal background checks and “assault weapon” restrictions.

The NRA notes that: “none of those surveys had access to the NRA's membership list,” which is certainly true. There is a bit of disingenuousness in the way the polls are reported, which should state that “respondents who identify themselves as NRA members support”—which is a rather different matter. If six respondents out of a thousand polled identify as NRA members, and five of the six support the measures, that’s 85%, but it’s not really statistically significant.

Unfortunately, the NRA responds with its own bogus poll, of 1000 randomly selected NRA members. The results, as reported on their website, are:

Key Findings:

91% of NRA members support laws keeping firearms away from the mentally ill.
92% of NRA members oppose gun confiscation via mandatory buy-back laws.
89% oppose banning semi-automatic firearms, often mistakenly called "assault rifles."
93% oppose a law requiring gun owners to register with the federal government.
92% oppose a federal law banning the sale of firearms between private citizens.

Of these, two, four and five are obvious “straw men.” I haven’t seen any of these proposals on the table anywhere, and are part of the NRA’s fear-mongering among its membership and fellow travelers. Number one is a “no-brainer,” you should pardon the expression, that everyone supports—providing we can figure out a workable way to do it.

Giving credit to the NRA, they do publish the actual poll questions and instructions and full results, which most poll proponents do not.

The Atlantic Magazine has published a lot of good articles and opinion pieces (including the Mamet one). Among the best is “The Case for More Guns (and More Gun Control),” which I think is very well balanced, and can be found here: http://www.theatlantic.com/magazine/archive/2012/12/the-case-for-more-guns-and-more-gun-control/309161/3/

There's also a very good article in the New York Times, "Bipartisan Guidelines for Gun Control," on line at: http://www.nytimes.com/2013/01/30/opinion/bipartisan-hunting-buddies.html?WT.mc_id=NYT-E-I-NYT-E-AT-0130-L6&nl=el

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