ABA Journal



Anonymous hacks Sentencing Commission site; is it releasing info on SCOTUS justices?

Jan 28, 2013, 01:27 pm CST


Carmen Ortiz must be the darling of DOJ at the moment. Hope she hadn't planned to run for political office. Maybe she can go back to the Middlesex D.A.'s office.

By Pushkin on 2013 01 28, 2:28 pm CST

Perhaps relevant to Government IT security, the Apollo astronauts used to have a saying, "don't you feel great sitting atop a machine with 2 tonnes of explosive and 5 million moving parts built by the lowest cost bidder on a government contract?"

It's no shock that outsourced, low-cost websites managed by a GS-9 making $35k per year get hacked. What is a surprise is that it doesn't happen more often. In a strange way, Anonymous is doing the Government a favor by forcing them to be safer before they're hacked by China.

By KG on 2013 01 28, 5:19 pm CST

The way I read the information is that since the demands have to do with the principles of justice and that immediate correction take place so that we actually be provided with a justice system that promotes justice that the files they plan to release are appropriately named after the justices of the Supreme Court---I do not see that they have threatened to harm the Justices in any manner.

"The contents are various and we won’t ruin the speculation by revealing them. Suffice it to say, everyone has secrets, and some things are not meant to be public."

...using it as a venue from which to distribute a massive 1.3 GB encrypted file titled Warhead-US-DOJ-LEA-2013.AES256 which may contain secret information sourced from the Department of Justice (hence the files contained are named after SCOTUS justices) and which Anonymous threatens to release unless massive reforms take place at the DOJ - ...

The contents of the AES256 encrypted "warhead" folder contain nine files eacg named after a Supreme Court Justice as seen below:

14965755e21467d13ac807031f97e2bc Alito.Warhead1
c243e81a44fc42bc8e6821e9b05650da Breyer.Warhead1
26e93c731515b4941e10a400e402787c Ginsburg.Warhead1
199cbbaacbad4e48152dc7d9da153674 Kagan.Warhead1
ee385def3e79c72ecbea42a287ec0396 Kennedy.Warhead1
29da80651797cf30a9594ec97901d8a6 Roberts.Warhead1
af5ab26b222be2c853ebc8460a533f61 Scalia.Warhead1
06917dfe9038640b76d2d83cb3661b3c Sotomayor.Warhead1
1321fbd5d52d7ea270e50885b0fbf8ae Thomas.Warhead1

By Laura J. McGarry on 2013 01 28, 7:10 pm CST

Seems unlikely that the information is about the Justices. I presume they are named after the Justices for the mere irony. Anonymous is smart enough to know that the Justices don't have any real power over legal reform. What's much more likely is that it is information on all US Attorneys, other DOJ employees, Sentencing Guidelines Commissioners, and/or Legislators, etc.

By N H on 2013 01 29, 11:02 pm CST

I am amazed at the sympathy being received by Aaron Swartz who admitted stealing copyrighted materials! The fact that he claimed to be doing so without a profit motive is entirely immaterial. Mr. Swartz's belief that "information wants to be free" is complete and utter nonsense. It cost time and money to gather and publish information, and the owners of such information have the right to control its use - no matter what hackers like Swartz believe. The US Attorney was absolutely correct in prosecuting him to the full extent of the law.

By Tom Conway on 2013 01 30, 11:41 am CST

@5-It is my understanding that Aaron Swartz was an authorized user of the JSTOR website and he was retrieving such a large volume of documents that it caused the website to crash. I do not how you come to the conclusion that this was "stealing." I think it is more likely that the prosecution was in retaliation for his earlier attempt to liberate PACER documents for public dissemination (no charges were brought) and his political activities seeking documents by FOIA on Bradley Manning and successfully advocating against SOPA. I understand that JSTOR made its publications freely open to the public just before Aaron Swartz died.

By Peoples' Lawyer on 2013 01 30, 12:09 pm CST

@5 Tom Conway: if he was stealing and distributing copyrighted materials, there is a civil remedy--sue him. Felony charges seemed a bit much. Do you honestly think regular JSTOR users said, "hey, I'm going to cancel my access subscription because some nut is publishing some articles"? Come on.

By Weedie on 2013 01 30, 12:52 pm CST

Swartz may have had legitimate access to JStor, but JStor did not own the copyrights to the material on it. The copyright holders licensed JStor to publish their material. By "liberating" the publications, Swartz was going to deprive the copyright holders of their right to control copying and redistribution. Whether one agrees with copyright laws or not, they are the law passed by Congress. Swartz idea was planning not only to break the law (perhaps an act of civil disobedience), but to render the law completely ineffective for these copyright holders. Once the material was out, there was not containing it.
As for civil disobedience, the usual rule is that one admits responsibility and accepts punishment as a way of illustrating that the law is unjust. Swartz fled when caught; hardly an example of principled civil disobedience.

By mikel on 2013 01 30, 1:27 pm CST

@7 Weedie: So you're advocating decriminalizing larceny and all other actions that might have a civil remedy?

The Department of Justice had sufficient cause to believe that Aaron Swartz violated a criminal law enacted by Congress. What are they supposed to do - look the other way and pretend it didn't happen?

By Really? on 2013 01 30, 1:28 pm CST

@9 Really? Why not? You wouldn't believe the crimes that go un-prosecuted by the Department of Justice and its US Attorneys across the country. I'm not defending Swartz's actions; perhaps they were criminal. But so are so many other acts that take place daily that the feds don't trouble themselves with.

By David on 2013 01 30, 1:38 pm CST

I agree it doesn't seem criminal - posting material for FREE... it all depends on who is behind initially having him prosecuted!
Why don't they focus on something important like -- IRS Tax Return theft crimes??... billions of dollars a year and they are not doing anything about it. I would love to know how many employees they have working on those Identity theft crimes.

By cgellatly on 2013 01 30, 2:05 pm CST

This is a sad story.

Even if the government uses low-cost websites, i still find it a criminal act to hack the sites for what ever reasons. It seems like a way of blackmailing the courts and one may even compare it with a person holding a gun in his hand demanding a favor. This should never be tolerated.

Governments however need to pay much more attention to the safety of their websites.

Marcel LKS

By Marcel Lieuw Kie Song on 2013 01 30, 2:09 pm CST

#9 Really?
"What are they supposed to do - look the other way and pretend it didn’t happen?"

Priorities...DOJ was trying to make an example of him and it blew up in their faces. The DOJ does a spectacular job looking the other way when the criminals work on Wall Street or are politically connected (See Goldman, Corzine).

By C. Angus on 2013 01 30, 2:28 pm CST

I note this important part of the story "... who committed suicide as he awaited a felony trial for allegedly downloading scholarly papers to make them accessible for free..." Although I do not condone the behavior of such individuals, the entire purpose of the patent/copyright system and original laws were to PROMOTE SHARING of scientific and other discoveries/theories for PUBLIC use and the general welfare of the PUBLIC while giving the originator credit, NOT to make the originator(s) "rich" and NOT to allow originators to hoard their discoveries and NOT to provide a court system that promotes/protects the originators to (A) keep anyone and everyone else from using or making whatever-it-is, and NOT to allow the originators to (B) say "MINE MINE MINE MINE" like 'Finding Nemo's seagulls for years and years, and certainly NOT to (C) keep the PUBLIC from using that discovery/information for years!

Instead, the court system should only be there to ensure the originators get royalties and published credit for every discovery when used or duplicated by anyone and everyone else. THAT is what Jefferson intended in the Consitution.

Sounds like Aaron Schwartz was just trying to follow the US Consitution's directives to promote new ideas and breakthroughs for the good of society. Yep, sounds like a felony.

By Is curent IP law Unconstitutional anyway? on 2013 01 30, 2:55 pm CST

@9 Really?

If prosecutors acted on every single crime as set by Congress, the courts would be so gummed up as to not be workable at all. Because every single one of us here is arguably guilty of multiple "crimes" that could be felonies depending on how prosecutors read the statute. They'd certainly have enough, at the very least, to convince a judge to bring any of us to trial.

The local prosecutor and Swartz's attorney had worked out a plea that would involve withheld adjudication before the feds stepped in and demanded their blood. Ortiz has a reputation of being, for lack of a better term, rather ruthless (see the Swartz case, see also the recently decided forfeiture case, United States of America vs. 434 Main Street, Tewksbury, Massachusetts). She deserves every bit of criticism she's getting.

By Andrew on 2013 01 30, 3:27 pm CST

Anonymous is actually pretty cool...

By anon on 2013 01 30, 3:54 pm CST

@ 14: Are you serious? Unconstitutional?

Art. I Sec. 8 Clause 8: The Congress shall have the power . . . to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their repective writings and discoveries.

EXCLUSIVE RIGHT = Yes, the Founders intended (A).
TO THEIR RESPECTIVE WRITINGS AND DISCOVERIES = Yes, they intended "Mine, mine, mine."
FOR LIMITED TIMES = As this was not set in the Constitution, the Congress is free to determine that "yes, they can keep the rights exclusive for 'years and years'."

You seem to miss the purpose of the system entirely: motivate sharing thorugh the grant of a constitutionally protected temporary monopoly. Without exclusive patent rights, innovations would all be treated as "trade secrets", there would be less motive to do expensive research, and inventors would be screwed by reverse engineering as soon as a product hit the market.

Want access early? Incentivize the author or inventor. BUY THE BOOK, and you can use its ideas forever! LICENSE THE INVENTION, and you can profit from it!

By the way, no matter what you think "Jefferson intended", he wasn't Emperor and didn't get the version you advocate ratified by the States. We have Art. I, Sec. 8, Clause 8. Don't like it? See you at the next Constitutional Convention.

By Voice of Reason on 2013 01 30, 4:03 pm CST

@14 - What law school did you flunk out of?

Let's do a little reading, shall we? In Article I, Section 8, Congress gets "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"

Call me a textualist, but seems like Congress gets to do what Congress gets to do. These authors granted JSTOR limited distribution. Mr. Schwartz made a unilateral decision that these authors would no longer have "the exclusive Right to their . . . Writings." He destroyed valuable property rights, the IP equivalent of arson. How is this not a crime? Burning down buildings is illegal, even if you don't have a profit motive to do it.

I'm sorry he decided to kill himself. That's a result of his mental illness, though, not prosecutorial misconduct.

By Huh? on 2013 01 30, 4:07 pm CST

Why the USSC site? Am I missing something here? Did USSC join the DOJ?

Whereas I'm a supporter, in general, of civil disobedience when an individual or group needs a fast and large forum, Anonymous's choice of the USSC site seriously inconvenienced budget criminal defense lawyers, like me, who need the data and guidelines available on the USSC site to argue against sentence disparity, judicial animus and overreaching AUSAs. Criminal defense lawyers are fighting every day against injustice and the blind imposition of penal sanctions to enforce social conformity. Now, we've lost valuable tools to a bit of misdirected grandstanding. Ouch.

By Tom Hartzell on 2013 01 30, 4:13 pm CST

RE: Voice of Reason @17, replying to me @14

Certainly your view prevails. However, one could say that "you miss the purpose of the system entirely", not me, as you so aptly noticed, it states: "The Congress shall have the power . . . to promote the progress of science and useful arts ".... so if the laws on the books are NOT PROMOTING the progress of science and USEFUL arts, then the laws are, by definition, unconstitutional. If no one is USING the new art/item or access is being limited, not promoted, by the laws, the items are NOT being PROMOTED nor USED [USEFUL] and not progressing science and useful arts. You cannot LIMIT access to an invention/art and say that is PROMOTING the invention/art. The process of original art/invention development can still be protected without limiting access to the final products.

I entirely agree inventors/companies need to have exclusive rights, be paid, reimbursed, etc. for their ideas, but the collection of "rights" in the "right" defined in the Constitution does NOT NEED to include sole ability to reproduce or use an idea; just if that idea is reproduced or used, the inventors should be compensated in order to promote the process of invention. In hoarding patents and only allowing the inventor to reproduce, say, a drug, for a few years, it limits access and availability to those drugs. Generic makers or kids in their basements should be allowed to reproduce it, just giving the inventor royaltees if they do. The process/act of hoarding/limitiing access is in no way PROMOTING the items' USE, but instead limiting it, and could therefore such laws cold be considered Unconstitutional, by definition. For example, GlaxoSmithKlyne would make a lot of more money AND consumers would not have to pay outlandish prices for drugs if GSK sold a drug while getting fixed royaltees from 5-6 different generic drug makers of the same drug at the same time. And, the increased pricing competition IS the American-way and would benefit consumers to boot.

By Is current IP Law Unconstitional anyway? on 2013 01 30, 4:25 pm CST

Copying is not stealing!!!

The crux of the problem is the behavior of government toward its citizens and the fact that when the government is at risk of having intrinsic corruption exposed, no matter which branch, heavy hands will follow. We are out numbered by those who have abandoned the principles behind justice and are being served by the self-serving which means no honest service. When the hearings take place in DC the following needs to happen:

The Office of General Counsel from the Administrative Offices of the US Courts needs to be confronted at these hearings because the stone covering the PACER incident needs to be turned; this was a huge embarrassment to the FBI where their harassment of Aaron over the PACER download ended with the fact that absolutely no law had been broken. The aforementioned makes the current situation look like a “We got him this time” scenario chased by some heavy handed retaliation.

Was US Attorney Ortiz pressured by the US Courts to pursue Aaron is a question that MUST be asked! Further, US Attorney Ortiz needs to be asked why she felt she should be so heavy handed on Aaron when her office chose to ignore alleged computer fraud by court staff which was supported by material evidence submitted to her office such as court dockets and filings as well as affidavits? US Attorney Ortiz needs to be asked why the FBI and her office ignored alleged fraud by staff at the USDC of Massachusetts and First Circuit where computers provided to them by the tax payer were used with the purposeful intent to obstruct justice. US Attorney Ortiz needs to be asked why no action was taken when her office was informed that these acts were not only carried by clerk staff but, also, carried by a Magistrate Judge and an Assistant Circuit Executive with the Title LEGAL AFFAIRS who felt she could render fraudulent documents with an inactive law license and post those documents on a government web site. Criminal defendants are not the only ones being abused in the very corrupt US Courts and the abandonment of principle, oath and duty by the front line staff in these courts is happening throughout this country; citizens are being robbed of life, liberty and property at the hands of corruption. Further the federal court system has set the standard and many state courts throughout the country are following suit; they are also infested with corruption.

NO ONE IS ABOVE THE LAW yet Aaron with his open records campaign, connections after working to defeat SOPA and general capabilities that could lead to full exposure of the corruption in the US Courts was the one being persecuted! Hopefully MIT will answer why they chose to bow to a corrupt federal government over standing by Aaron!!!

By Laura McGarry on 2013 01 30, 4:27 pm CST

As both a scientist and licensed attorney, I find merit in most points of view here. However, as a taxpayer, I am offended that Federally funded grants for non-classified works are generally kept from the public. Classic double-taxation scenario: we (Tax Payers) pay good money for the research, pay again for access to it, pay a third time by way of patents!

Mind you, Americans pay for more Biotech research than the rest of the world combined and we also pay the more for prescription drugs (the fruit of that inefficient research) than any other nation. Does this sound right?

Maybe Aaron didn't choose the most expedient manner in which to trumpet his viewpoint but the fact remains: we pay for this research and judicial opinions and, as the employer, we are the default assignee - hence, one cannot steal what he already owns. True, the law does not agree, but the logic is sound.

By Devil's Advocate on 2013 01 30, 4:41 pm CST

The problem here, as in so many related contexts, is that our laws and notions of property were never designed to countenance digital media, let alone the internet.

In 1789, if you wanted a copy of a book, you could either buy it from the printer, hire a printer to manually typeset a duplicate from a borrowed copy, or bust out pen and ink and write it out longhand. (A copy machine was invented in 1779 and in use for about a century, but this depended on the use of specific ink in the original to be duplicated.) Since options for duplication were more laborious and expensive than simply buying a copy, this system worked well.

In the 1930s, the processes leading to the modern photocopy were invented; suddenly, with an adequate stock of paper, you could make a "perfect" duplicate of a book. Of course, there would be some signal degradation, and the cost of paper and ink (plus the use of the machine, plus labor time) would still likely trump the cost of buying a mass-produced book, but for rare/expensive works (or just a few pages) this made sense, and this system also worked well.

Similarly, audio recording technologies existed, but each analogy copy lost a certain something in translation - which is why master tapes (and gold records) were, and still are, so important. There is still a difference between a copy and the original - but the vanishing quantum of difference is what this is all about.

Digital media dates from at least the mid-1970s, and dramatically reduced the signal degradation of photocopying. It is true that a copy of a copy of a copy of a CD will have a handful of transcription errors, but it is also true that you can listen to a copy of a copy of a copy of a (music) CD and never hear the difference. Copyright laws started a rapid evolution in the face of VCRs, mix tapes, and early precursors to the internet. Which led to ...

Today any file stored electronically can be endlessly and pretty much flawlessly duplicated, at de minimis cost to the duplicating party, without damage to the original file; the copy can be copied, and the copy of the copy can be copied, and after several iterations the duplicate will likely be indistinguishable from the original. These copies can be made instantly available to (more or less) everyone, on a moment's notice; and suddenly, sharing/promotion is easy and free, which means there is no inherent cost-based incentive to buy information.

There has been a fundamental change in the way information is disseminated, and our laws have not kept pace. Our laws, and their constitutional underpinnings, are based on assumptions that do not hold in the modern marketplace.

What this means is that a realistic copyright/patent system simply cannot exist without a massive overhaul of the current system and possibly a constitutional amendment. Of course, entrenched interests (who built their empires under the pre-internet models of information sharing) are resistant to change, for the same reason that an oil company is resistant to solar power research.

The irony is that most researchers and artists are pretty happy to make their work available for free; most of them do it for the sake of discovery and sharing, not to get rich. Still, until someone figures out a way to make a profit by sharing information without charge, the powers that be will resist change.

By mouselaw on 2013 01 30, 5:03 pm CST

Thousands of academics created articles and went through the trouble of copyrighting them... To protect their intellectual property, no different than you would want to protect the fruits of your labor. The articles were held by a central distributor and sold to universities, many who allowed their students access without charge. MIT, as a relevant example, allowed network users--broader than just students--to access the articles pursuant to their contract. MIT explicitly prevented mass downloading and distribution of the articles. MIT's network allowed anyone within range to log-on to the network with minimum security interference (unless its terms were violated).

Swartz tried numerous times--despite being a fellow at Harvard--to access MITs network and download thousand of these articles. MIT cut him off a number of times. Swartz responded by veiling his IP address, then his actual laptop MAC address, then switched laptops altogether. After MIT locked its wireless network, Swartz physically broke into a closet and hacked directly into the network. Swartz even hid his face while breaking into the closet, though a surreptitious camera caught glimpses. When confronted by investigators, Swartz ran. Swartz displayed consciousness of guilt in spades.

Swartz wanted to make all the articles available for free online... While valiant, thereby neutralizing the copyright protection enjoyed by their producers (and undermining their ability to be rewarded for their labor). His motive is certainly relevant in a sentencing/mitigation context, but it doesnt make his behavior lawful. We can agree that stealing from banks--even if dispersing the profits to homeless shelters--remains a crime. Taking drug recipes from Glaxo--even to distribute to 3rd world nations lacking access--remains a crime. To castrate these laws due to righteousness of motive would have a chilling effect on researchers, inventors, producers, and so forth. The result would be undesirable for all. Capitalism would quickly steer dollars away from R&D.

Swartz faced a lot of time, as charged, but was offered a plea that called for only 6 months of incarceration. Clearly his grand design factored into the proposed resolution. Swartz naturally had the right to fight the charges and was well-represented in that endeavor. Apparently fearing the stigma of being a felon or punished, he took his own life. This was a very unfortunate ending but not entirely a system failure. Obviously there were mental health issues involved. To blame the USatty for his death requires a disingenuous view of causality.

The campaign to blame the system for this outcome is simple opportunism. "Anonymous," and Swartz's social network spent little time trying to wind back our cybercrime laws before he took his own life. This was not civil disobedience as history has defined it. Rather, Swartz wanted to avoid any punishment while unilaterally impacting the laws he felt were unfit--laws that protect the rights of a class of victims, no less. Certainly this is not the method that our democratic system encourages.

By ST on 2013 01 30, 5:28 pm CST


Regarding Swartz's prosecution, it bears noting that JSTOR asked Justice not to proceed. MIT did not support prosecution.

So why did Justice do it anyway, offering plea bargains usually reserved for drug traffickers? Because (1) DOJ was probably angry he escaped prosecution for making U.S. court records public from PACER; and (2) Ortiz probably realized that a "big" CFAA prosecution about IP would look great to big copyright holders. If you want to be the next Verilli or Neil McBride, you look at their resume... and what do you see in common? Big Content.

By Parameter Unspecified on 2013 01 30, 7:45 pm CST

This has to be the most interesting story of the day. ABA Journal, I commend you.

By Tom Youngjohn on 2013 01 30, 9:27 pm CST

I guess Carmen Ortiz got what she wanted. Now she has A LOT to prosecute. Unless they finally get some sense and fire her right away. To think that one silly hysterical person caused so much trouble - you have to be really careful about whom you hire.

By Anna Gray on 2013 01 30, 9:58 pm CST

I'm looking forward to seeing these guys go to jail. I'm sure that they think that they won't get caught, but all they have done is to make themselves public enemy number 1 as far as the DOJ goes.

By Barack Obama on 2013 01 30, 10:13 pm CST

"It cost time and money to gather and publish information, and the owners of such information have the right to control its use"

I think ANONYMOUS would agree, for different reasons.

By Tom Youngjohn on 2013 01 30, 10:15 pm CST

Looks like most commenters are ignoring at least one of the most basic, simplest facts here.

JSTOR (with copyright owners' consent) allowed a limited, minuscule quantity of downloading for free. It's ridiculous to say anyone had permission to download a lot, even though for any one downloaded article the net result would be about the same. Legally speaking, it's theft.

No copyright owner, nor JSTOR, nor the server/hosts may have consented to this, but whether the government enforces the law has nothing to do with whether anyone has complained.

The government may have the right to prosecute someone, but that doesn't make it a good idea - for anyone. Often, it's a terrible idea - for just about everyone.

#8 mikel - There are no "rules" in civil disobedience, unless you mean natural law / God's law. And that may mean one is led to disobey and face the legal consequences, or to disobey and defy the legal consequences. The more extreme the example, the more you'll agree (e.g., defying the liquidation of the Warsaw Ghetto was pretty much a moral imperative, and refusing to accept subsequent deportation into the Holocaust was perfectly moral).

#22 - I agree that if we've paid taxes to get the stuff into JSTOR, we ought to be able to read it.
But that doesn't shed any light on the dilemma of how to remedy JSTOR's violation of that right.

Things are changing fast. Sunday's NYTimes suggests that courses at the most selective universities are quickly becoming free online options, complete with a certificate for participants worldwide. If 155,000 people just took an M.I.T. course for free, who knows what's next?

Let's all just wait a bit and see before we get too upset about each other's opinions on this.

By Avon on 2013 01 31, 12:38 am CST

@28-And who are you that you so relish the idea of cyberwarriors being put in jail? Public enemy #1 with DOJ? I'll buy that because the true cybercriminals, the Mortgage Electronic Registration Systems, Inc. (MERS) data base and the thousands of document-forging document clerks for the mortgage servicers (assigning mortgages to their own employers out of the MERS database) are not investigated by DOJ. AG Holder and AAG-Criminal Division chief Lanny Breuer are from Covington Burling, the bank defense law firm which also issued an early opinion-letter purporting to approve the MERS plan to act as an e-registry for e-notes touted to the public as legal approval for its criminal enterprise. Unfortunately for the hapless opinionator, MERS had nothing to do with e-notes and was never a registry for e-notes. Quite a bit of liability could be imposed on Covington Burling for a false opinion letter which enabled a major fraud scheme to say nothing of the liability of the Covington Burling clients--BofA, Citi, Chase, Wells Fargo, which are operating the racketeering enterprise by confiscating homes with forged documents, with criminal immunity under the guise of Breuer's "prosecutorial discretion."
I would like to see Anonymous intrude into the MERS data base to liberate the fraudulently procured mortgages (originated under false pretenses of being loans by the named "lender") and publish the data so that we could get the e-discovery necessary to pull the plug on that destructive computer game. If I hadn't just implicitly suggested it, and thereby disqualified myself as a potential accessory before the fact (lawful use was, however, intended) I would represent them for free if they were "caught" and charged by the DOJ that you seem to so revere. Then, I would hope that you are a lawyer and would prosecute them and I would defend them to a jury of 12 besieged homeowners, whose mortgage "default" was engineered by servicing errors before Judge Arthur Schack of the New York Supreme Court.

By Peoples' Lawyer on 2013 01 31, 12:51 am CST

@17 & @18 - The Constitution did not stop with its text. It was later amended. Those later amendments changed the document that preceeded amendment. To the degree there is a conflict between the amendments and the original text of the Constitution, the original text is superseded. That, of course, is the purpose of an amendment. The authority to amend the Constitution, and thereby change its meaning, is in Article V.

In this case, the very first amendment modified what came before by stating that "Congress shall make no law ... abridging the freedom of speech." So that grant of power to Congress you refer to in Article I was later modified by the requirement in First Amendment that it not be used in order to abridge the freedome of speech.

The Copyright Act was passed subsequent to that amendment, in 1909. Its purpose was to restrict speech based on content. In particular, words that had been published and formally protected by copyright were no longer available to be used in precisely the same order for a period of 14 years. It inarguably abridged the freedom of speech. One might argue that creating a private right of action for people allegedly harmed by copying did not create a prior restraint on speech (although that argument would be thin, at best - if the courts were ever used to enforce that private right of action, their use would no doubt run afoul of the amendment). But criminalizing copyright infringement plainly creates a private restraint that is impermissible. In any event, it is not authorized by Article I Section 8 - it goes further than creating a monopoly or exclusive right.

The Supreme Court has considered the point numerous times, and rejected the position that the text of the First Amendment limits the text you quote from the Constitution. But that analysis can hardly be considered a textual one: it is plainly (and facially) results-oriented. Call me a textualist, but what the good Constitution giveth in Article I Section 8, it taketh away in the First Amendment. Or does "no law" mean something else?

By PenguinAdLitem on 2013 01 31, 2:01 am CST

This penguin person? Yeah. I'm with him. 100% This guy is SMART. (And I have a weakness for textual readings of the Constitution. God bless Aaron Swartz, seriously.

By Tom Youngjohn on 2013 01 31, 2:14 am CST

@32-Your argument is brilliantly conceived and executed. Congress, created and empowered in Article 1, had its powers to infringe on the free flow of information expressly limited by the First Amendment.

By Peoples' Lawyer on 2013 01 31, 2:20 am CST

Avon (#30),

I meant civil disobedience as practiced by Thoreau, Gandhi, and King. King's Letter from the Birmingham jail sums it up best. The Warsaw ghetto uprising was armed resistance. There is little dispute that it was morally justified, but it was hardly civil. Swartz was no armed freedom fighter, but he was not a civil disobeyer either.

DOJ regularly prosecutes those who violate copyright laws. The NET Act was passed in 1997 to permit prosecutions even when the copyright infringement was not for commercial advantage or private financial gain. It was intended to prosecute wares groups who were "liberating" software.

We may not like the fact that behemoths like Microsoft and MGM own copyrights, or that giant companies own patents. We may not like the fact that the protection given to them (the monopoly right) is too long. But that is the law. In a democracy, we have the ability to work to have the law changed. I am not a Pollyanna and I'm well aware of how much Congress is "owned" by campaign contributors. However, that disaffection does not give anyone the right to violate the law. If he does so, a la Thoreau, Gandhi, and King, he also accepts the idea that he will accept his punishment to illustrate the unjustness of the law.

By mikel on 2013 01 31, 2:23 am CST

mikel #35, I hear you. And I hoped you heard me when I called the Warsaw Ghetto an "extreme" example; I didn't call it Swartzian! Frankly, though, I think Swartz was armed with somewhat more than his own limp body blocking a street, even if he did wield a lot less than a freedom fighter does.

I think the main thing that differentiates Swartz from Thoreau, Gandhi and King with regard to "civil disobedience," aside from the fact that Swartz wasn't even claiming to have that specific a philosophy, is that TG&K were aware of what law they were breaking. It's hard to deny that Swartz was blind-sided by the consequences. Not to mention, mentally/psychologically unfit to fully grasp them in advance. His disconnect from regulated information was so total and pure it feels sweet.

If #s 17, 18 and 32 above aren't clear enough about it to put it into a sentence, or even to agree, then it's totally unrealistic to expect anyone, let alone Swartz, to have consciously bargained for many years in prison. And I'd say the same thing of anyone who watches live broadcast-TV channels on the wrong Internet website, or shares a purchased mp3 song with too many friends.

I myself once did 13 days in National Guard custody for trespassing (with over 1000 others) on nuclear powerplant property. But I knew the criminal consequences of trespassing can extend that far if the justice system really really wants to jail you. JSTOR's terms of service gave Swartz no such information ... not even a formula "Violators Will Be Prosecuted." I think the case is a terrible shame.

By Avon on 2013 01 31, 2:44 am CST

Congress is getting into the act, not so much about whether the information was a theft, but about the severity of the consequences. And one of the named Congressional leaders in this inquiry is a vociferously conservative Californian, the other an Eastern liberal. Nice.

By Avon on 2013 01 31, 2:51 am CST

Great, now can we get our legislatures to start looking at how we punish drug related offenses with, say, related assault offenses please? Or how eagerly the State tends to be to pursue family violence charges against a man and (at least in my experience) substantially let inclined to do so against a woman? I mean: good that prosecutorial discretion is getting looked at. I'm a little irked, though, that we have such a passionate response with the victim in high profile and charismatic, and that legislator are looking at the punishment for THIS crime, but thousands of people get worse treatment every day, do not have the resources that Mr. Swartz does, and no one cares on bit about them.

By John E. on 2013 01 31, 8:08 pm CST

I'm irked by that too, John, but it doesn't affect what we do as individuals about the issue.
And it's not necessarily people with powerful friends, like Swartz; it can be any anonymous person who captures America's heart or imagination, usually through a fluke of chance that turns the spotlight on them. We could get irked at some very sweet and powerless people just as much as powerful people. But once they're as dead as Swartz is, it's harder to resent any of them.

By Avon on 2013 01 31, 10:13 pm CST

It is not that Aaron Swartz is, or was, a powerful person. The name "Aaron Swartz" is becoming a powerful name because young people have had enough. They are worried about America turning many civil litigation matters, such as copyright laws, or child support laws (even where no recourse is made to the public funds), etc., into horrific criminal laws.

Instead of funding a proper welfare and education system we are obsessed with prisons, uniforms and militarism.

For many people America has become a hateful and lawless nation. Aaron Swartz and his sympathizers recognized this. It was not the potential sentence or jail term that put him over the edge. It was the stigma of a criminal record. We have a very unsound discretionary "criminal system" (the word "justice" is intentionally omitted because to call our system a "criminal justice system" would be inappropriate). I simply refer to it as the American Criminal System.

People are asking, “well, how hard should I fight to change things?”; "How hard do we have to fight to keep Aaron's name alive?"

Their answer is Aaron Swartz should cause real worries for Julian Assange. They know that to change things they have to fight at least as hard as Julian Assange of Wikileaks, Nabeel Rajab, Thomas Drake, William Binney, John Kirakou, the Army Private Bradley Manning who remains in a military prison in Fort Leavenworth, Kansas, who was found by the UN to have endured months of torturous detention in Quantico, Virginia, USA and who has yet – after two years in prison – to see a trial, he must be released. Bradley Manning spends his 840th day of detention without trial. The legal maximum is 120 days. Nabeel Rajab, was sentenced to 3 years for a tweet. A Russian band were sentenced to two years in jail for a political performance.

They say that they do not live in a country, they live in a company. Our CEO is Obama. The higher management includes the prosecutors Stephen Heymann and Carmen Ortiz. You, the reader, are the employee who must not step out of line. Aaron Swartz knew what he was up against, he had stepped out of line, he knew that the lucky ones could end up on the balcony of the Ecuadorian Embassy in London and the unlucky ones ... hmmm! .. in Quantico, Virginia.

So, the answer is people will have to fight as hard as Aaron Swartz or harder. See, (by the time you get there the site will be down; that is the order of the day!)

By Philadelphia Courts on 2013 02 01, 12:46 pm CST

#9 Really? #13
“What are they supposed to do - look the other way and pretend it didn’t happen?”

For the 20th year in a row, IBM has led the world in the number of received Intellectual Property (IP) rights. What has this got to do with Aaron Swartz? Well, the husband of prosecutor criticizes internet activist's family. Tom Dolan, an IBM executive married to Carmen Ortiz, used his Twitter account to attack the family of Swartz. One of the horrific tweets, posted on his @TomJDolan feed, said: "Truly incredible that in their own son's obit they blame others for his death and make no mention of the 6 month offer."

I almost forgot. IBM and Dolan paid for legislation (sponsored the sponsors over the past 30 years) that criminalizes IP violations. Why should IBM pay for the prosecution (i.e. civil litigation) when the tax payer can do it through a criminal system?

How did the husband and wife meet? Ahhhh! How cute! ... so much IP in common.

Now, Thomas Joseph Dolan and Carmen Milagros Ortiz are flexing their muscles to remove their entries from Wikipedia, the free encyclopedia, as it now references both of them to Aaron Swartz.

By Philadelphia Courts on 2013 02 01, 1:56 pm CST

Avon (# 36) "TG&K were aware of what law they were breaking. It’s hard to deny that Swartz was blind-sided by the consequences." Swartz may not have been aware of what law he was breaking, but neither are many defendants. What they have in common is that they are aware that what they are doing is wrong. This was not some regulatory violation of selling goods without proper labels or a license from a particular agency. As for blind-sided by the consequences? I understand that, but an offer of 6 months in prison is somewhat less than the mandatory minimum sentences that many poor kids face if they get caught up in the drug trade or are arrested with a gun. He was blindsided more by his own ethos. Like Charlie Brown in Peanuts, he could not understand how he could lose if he was so sincere.

Philadelphia Courts (#40) "People are asking, 'well, how hard should I fight to change things?”; “How hard do we have to fight to keep Aaron’s name alive?'"
Do what an earlier idealistic generation did. Go to law school, but use your degree for public service instead of self-enrichment. You may not effect change on a global scale, but small scale changes, block by block, are also an important way to have an impact. The generation of the 1960s came of age when racial discrimination was rampant and voting rights were denied. Women were second class citizens. The world has changed massively in 50 years. Some of it was big demonstrations, but most was incremental work -- slow, unsexy, but necessary.

As for America being a lawless nation, you have little idea how good we have it. We are not perfect, but few legal systems in the world strive as hard as we do for fairness. For starters, how many countries provide free counsel in criminal cases for the indigent? How many have legal aid services for civil matters for them? How many countries have legal systems in which attorneys are encouraged to do pro bono work?

The fight for justice is an ongoing one. Do not get discouraged.

By mikel on 2013 02 01, 3:04 pm CST

Comment removed by moderator.

By Philadelphia Courts on 2013 02 01, 4:03 pm CST

mike #42, I just don't buy that Aaron Swartz was anywhere near as aware that his act was felonious as a street kid is that his gun possession or drug dealing are felonious.
Even if such a kid sees only action movies and TV dramas, he'll know.
Of course, a kid younger than Aaron Swartz is likely to feel even more "immortal" (in the sense that "bad consequences will never happen to me") than Swartz was. I can believe that a measure of denial was in his personality. But that's irrelevant - you can't deny what you don't even know of. All he knew were the Terms of Service (if even that), and I'm sure they didn't include a six-year term.
JSTOR was right to decline to press charges. (Hm. So much for "victims' rights," eh? Reminds me of a murder-victim family who urges life not death for the murderer; they're often overruled too.)

By Avon on 2013 02 01, 5:53 pm CST

Philadelphia Courts @ 41, you are AWESOME !

By Tom Youngjohn on 2013 02 02, 4:09 am CST

Ah anyone notice how the release of truthful information is being persecuted by the powers that be? Telling the truth is now a crime... Ask Assange, Manning, Swartz , Drake, Hammond, ETC. These courageous individuals PERHAPS(they didn't) committed a wrong, but it is absolutely insignificant compared the serious felonious crimes against humanity they uncovered. You best wake the f up. These criminal enterprises masking as law and order/government will let NOTHING stop their nefarious deeds...

By A A on 2013 02 04, 5:53 pm CST

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