Known Plaintext

Aaron Swartz, a Harvard fellow at an ethics center there, stands accused of violations of several federal statutes related to computer intrusion. Beyond that I'll just refer you to the indictment, and from there to what Jennifer Granick has to say about it. (Granick's page is, at present, a little hard to read: the relevant part is at the bottom, under the heading "Aaron Swartz.")

I'm really disappointed in Granick. She's normally brilliantly on-topic, and here she seems to have completely missed the boat. Per Granick:

[T]he sum and substance of the case is that he defrauded JSTOR by accessing the JSTOR archive without authorization and making copies of articles that students at MIT (and at Harvard, where Swartz was a Fellow) could obtain for free. … Swartz could have downloaded the articles one by one without violating the law. Is it a crime, therefore, that he used an automated process to do so? … Courts are struggling to answer the question of whether there is a point at which there is a difference in effectiveness that should require the law regulate the use of a particular technology and Swartz's case will be one of those occasions.

At this point I almost had to stop reading. Where in this entire case is there a question about the effectiveness of a given technology? This is a straight-up property crimes offense, where the only novel part comes from the fact it's a property crime against a computer network.

A property owner is allowed to make whatever licensing terms he or she wishes to others, so long as those terms are in accordance with the law. Should one violate that license, one's presence becomes unlawful. The government alleges that Swartz knew or should have known that his activities on the network were at odds with the license he was granted, and therefore he's run afoul of various property-crime statues.

Whether Swartz downloaded one file or four million files appears irrelevant. The only relevant questions seem to be:

1. Did Swartz know, or should he have known, the terms of the usage license?
2. Did Swartz know, or should he have known, he was in violation of that license?
3. Did Swartz know, or should he have known, JSTOR wished to deny him further access?
4. Did Swartz take deliberate steps to retain access after learning of JSTOR's wishes?

… If the answers to one through four are "yes," then it's hard for me to see how this isn't an open-and-shut property crime. What Swartz did with his allegedly unlawful access is not the issue: the issue is the allegation of unlawful access.