The professor says this is a first post is about the law, but it is an assortment of opinions.

II. The Legal Charges Brought Against Swartz
(a) Wire Fraud. The Wire Fraud statute, 18 U.S.C. 1343, prohibits a scheme to gain “property” by false pretenses. This strikes me as a pretty strong charge here. The false pretenses are provided by the false identification and spoofing of Swartz’ IP address and MAC address.

-> This is not false identification, IP or MAC is not tied to Aaron as person. MIT allows guest access and blocking an IP does not mean forbidding to a person access.

Swartz was trying to trick JSTOR into giving him access to their database after they had specifically tried their best to ban him from doing so. And the “property” was the contents of the JSTOR database itself.

-> The property is not the contents of the database since it was not produced by them they were handling it.

Some might argue that the contents of the JSTOR database should not be considered “property.” But I think that’s a hard argument to make in light of United States v. Seidlitz, (...) that OSI invested substantial sums to modify the system to suit its peculiar needs, that OSI enjoyed a multi-million dollar competitive advantage because of WYLBUR,(...)

-> "OSI invested substantial sums to modify the system to suit its peculiar needs, that OSI enjoyed a multi-million dollar competitive advantage because of WYLBUR" ???????? This is the exact opposite of this case where specifically JSTOR cannot alter the content of the producer. It's mission statement says it is also a not for profit organization [1]

That reasoning seems to apply reasonably well to the JSTOR database, too. See also Carpenter v. United States, 484 U.S. 19 (1987) (recognizing a property right for purposes of federal fraud statutes for a business in confidentiality and use of information to appear in a forthcoming publication). It’s possible to argue that Seidlitz is distinguishable, but I think it’s an uphill battle.

-> If it possible to argue, then it is possible for the prosecuter to show discretion

(b) Computer Fraud. The next charges were brought under the Computer Fraud statute, 18 U.S.C. 1030(a)(4), which is a close cousin of the Wire Fraud statute. The two are usually charged together in computer crime cases, and there isn’t really all that much that separates them that we need to dwell on here. So let’s move on to the next crime.

-> ... so if there isn't a wire fraud there is also no computer fraud?

(c) Unauthorized Access. The next charge was unauthorized access to a computer to obtain information valued more than $5,000, in violation of 18 U.S.C. 1030(a)(2)(C) and 18 U.S.C. 1030(c)(2)(B)(iii). I think this charge was a fair one. There are two notable legal issues here. First, was the information valued at more than $5,000? The answer is clearly yes under the leading case of United States v. Batti, (...)methodology when “information obtained by a violation of § 1030(c)(2)(B)(iii) does not have a readily ascertainable market value.” In such cases, the court held, “it is reasonable to use the cost of production as a means to determine the value of the information obtained.” Creating thousands of journals over many years obviously costs more than $5,000, so that element is easily satisfied.

-> He did not steal any journals. The only thing he got was the content that for JSTOR it had a zero cost of production. At least they have not claimed it did since they dropped the case. The Batti case had as an example a video feed that the company had created, and the cost for its production. That does not seem releveant it is legal name dropping.

(...) They blocked his IP address; he changed it. They blocked his MAC address; he spoofed it. They blocked access and he broke into a restricted closet and connected directly to MIT’s network. This is not merely a case of breaching a written policy. Rather, this is a case of circumventing code-based restrictions (...)So I think unauthorized access is established here, too.

-> It is pretty clear that he has not exceed anything not explicitly stated. Was there a page saying "We forbid YOU the PERSON to ever access this server?". I guess there wasn't because it would have already become an internet sensation. He did not circumvent code restrictions since there weren't any for MIT guests. The professor does not see why this is different than stealing someone else's password. An interesting view for a law Professor, so help me god.

(d) Computer Damage. The final charge brought was exceeding authorized access and thereby impairing the availability or integrity of information in ways that cause more than $5,000 or loss or involve more than 10 computers, in violation of 18 U.S.C. 1030(a)(5)(B) and 1030(c)(4)(A)(i)(I) & (VI). This is a plausible charge, although we’d need to know more details about the case to know if it is fully merited. I’ve already covered the elements of authorized access, so we can adopt that analysis above here and move on to the other elements.

-> We should thank the unbiased professor here also.

To get to $5,000 in a 1030(a)(5) case, the easiest and most widely-accepted methodology in the caselaw is to focus on the time spent responding to the unauthorized access. (...)

-> JSTOR seems to have had an automated system that cut access so there is not a proof that anyboy worked on it. After the breach was established JSTOR and MIT should provide data of manhours that were used ouside the daily shift (was there overtime? a destruction of the system?). Merely adding restrictions that they previously had CHOSEN not to have as part of the system is definitely not a response cost. They were repairing a broken business model. Anyway good luck obtaining dollar figures from JSTOR or MIT for the prosecutor.

The impairment of availability or integrity element would probably be satisfied, as well, (...) And more significantly, does access to a particular service from some users really constitute an impairment of availability of the JSTOR computer itself? I’m not sure, but I’m wary of that argument. So the 1030(a)(5) charges are plausible, but we would need to know more facts to know for sure if they were justified.

->"The impairment of availability or integrity element would probably be satisfied" and "The indictment alleges that Swartz’s conduct impaired the working of the JSTOR database but doesn’t give us much detail, so it’s hard to be sure" are two opposing sentences. Either it is probably justified or it is hard to be sure. Ofcourse since the admins have taken down the system themselves they will have to prove that it would go down by itself. But neither JSTOR or MIT have provided such data.

III. Conclusion

My conclusion, at least based on what we know so far, is that the legal charges against Swartz were pretty much legit. Three of them are pretty strong; one is plausible but we would need to know more facts to be sure. Of course, there may have been reasons not to charge Swartz even though he had violated these statutes or to offer him a lenient plea. I’ll take on those questions in my next post. But to the extent we’re focused on just what the law is, I think that what Swartz was alleged to have done fits pretty well with the charges that were brought.

->My Conclusion: This is a biased opinion but not necessarily wrong or willfully biased. It is legally biased. Truth or Mens Rea is irrelevant and things that are hard to be proven by the government alone are described as self explanatory, or obvious interpretation of facts.

[1] http://about.jstor.org/about