The Volokh Conspiracy

> Have a look at this: https://m.slashdot.org/story/180969 Clearly there is precedent in the US and elsewhere for prosecution based on accessing URLs

"prosecution based on accessing URLs" is a dishonest way of describing this case. It's a prosecution based on accessing URLs with malicious intent, while the persons responsible knew they were not intended to access said URLs.

That's like saying "prosecution based on walking through a doorway". Well yeah, except it was the middle of the night and the door to someone else's house had been accidentally left unlocked.

>Idk that much about this case. It seems to me that Swartz was in a hell of a lot of trouble, that could have gotten him a prison term along with financial and career ruination. He clearly should not have killed himself but that kind of stress can make people lose sight of the future.

Swartz had good lawyers; he was certainly aware that he wasn't in big trouble. He was facing neither financial nor career ruination. The damages he had caused were far from enough to result in financial ruination. The charges had made him even more of a celebrity and would've been a boost to his career.

https://volokh.com/2013/01/14/aaron-swartz-charges/

https://volokh.com/2013/01/16/the-criminal-charges-against-aaron-swartz-part-2-prosecutorial-discretion/

Orin Kerr, a top subject matter expert addressed this extensively. In the second part he also offers the best criticism of CFAA, which is that it's almost entirely redundant…

He wasn't actually facing 35 years. DoJ press releases don't take into account a couple of aspects of sentences when they come up with a number.

First, they ignore that actual sentencing takes into account assorted aggravating and mitigating factors. To get the maximum on a charge you have to have several aggravating factors and few mitigating factors.

Basically, if it is possible that someone could receive 20 years, say, for a given charge--even if to get 20 years they would pretty much have to be that crime's equivalent of Al Capone, then they are going to say 20 years on every press release involving that crime even if it concerns the mildest possible instance of it.

Second, there are often multiple charges that could apply to the same act and would require largely the same elements of proof. Prosecutors can charge you with all of them and let the jury decide which, if any, to convict you of. Many of these are grouped for sentencing, so that if you are convicted of more than one in the same group you only get sentenced for one of them.

Grouping is ignored in the press releases. If you are charged with three things, with a max of 10 years each (and remember, that 10 years is already greatly exaggerated as described earlier), the press release is going to say you are facing up to 30 years.

This really needs to be changed. The DoJ knows what facts they intend to try and prove about your particular instances of the crimes they are charging you with. They are perfectly…

>In the Craigslist vs 3Taps, the damages were non-existant but they still won because of the C&D letters.

(Technically they settled.)

Read up on that case and you'll see that even absent a C&D, the judge reasoned that Craiglist's IP ban against 3Taps was a separate incident of affirmatively communicating its intention that 3Taps refrain from accessing the site:

> The calculus is different where a user is altogether banned from accessing a website.
> The banned user has to follow only one, clear rule: do not access the website. The notice
> issue becomes limited to how clearly the website owner communicates the banning. Here,
> Craigslist affirmatively communicated its decision to revoke 3Taps’ access through its ceaseand-desist
> letter and IP blocking efforts. 3Taps never suggests that those measures did not
> put 3Taps on notice that Craigslist had banned 3Taps; indeed, 3Taps had to circumvent
> Craigslist’s IP blocking measures to continue scraping, so it indisputably knew that Craigslist
> did not want it accessing the website at all.

The judge continues to suggest that using proxies at all is atypical and may demonstrate an intention to violate the CFAA. Ruling at http://www.volokh.com/wp-content/uploads/2013/08/Order-Denying-Renewed-Motion-to-Dismiss.pdf .

>So if a website sends you a letter to stop, do not continue scraping them. Until that happens, it's fair game. ToS is not legally binding. Those two cases were the result of…

> As an example, we let the guilty go because of lack of evidence, where authoritarian regimes don't.

I mean, that's one theory. Here's Eric Posner:

http://volokh.com/2009/11/18/why-has-holder-decided-to-try-khalid-sheikh-mohammed-in-a-civilian-court/

> the Obama administration has decided to offer a two-tiered system of justice. We might call them the “high-quality” (civilian) tier and “low-quality” (military) tier. The high-quality approach offers greater accuracy; the low-quality approach offers less accuracy. The Obama administration will use the high-quality system against people when it has a strong case, and the low-quality system against people when it has a weak case.

> This approach makes sense. Endless detention without trial is no longer a politically viable option. The government will make a judgment as to whether a suspect is dangerous or not. If the case is good, the high-quality system will be used. If the case is bad, the low-quality system will be used. In this way, the government can ensure that people it thinks are dangerous will be locked up.

> This system is superior to the two possible one-tier systems. A pure low-quality system (military commissions only) suffers from credibility problems. People will not believe that all the people who are convicted are guilty. A pure high-quality system (civilian courts only) would result in too many acquittals. People who the government believes are dangerous will be back on the streets. The…

> The federal government of the United States claims this as well, for example see Gilmore v. Gonzales.

That's not entirely correct: http://volokh.com/posts/1134369043.shtml

> Now, just to be clear, I have no idea whether the TSA's decision not to publish the text of its regulations is a smart one. I can understand why they don't publish the names on the No-Fly list, but it's not obvious to me why they can't publish the regulation or rule (or the relevant part) requiring an ID. Maybe this is a misguided law, or an appropriate law being implemented in a misguided way. I don't know; as I said, this isn't my area of expertise. Further, I think reasonable people can disagree on whether TSA's practices are a big deal. Some will find them deeply troublesome, and others won't.

> At the same time, I think it's important to recognize that this dispute appears to be significantly narrower than Kevin's post suggests. First, Congress isn't passing any secret laws; the undisclosed authority is a regulation, not a statute, and the TSA's requirement is widely known. Second, no one is being arrested; as I understand it, the issue is only who can be let on an airplane.

> Finally, the court isn't being called on to interpret a law it has never seen. DOJ filed a motion attempting file a version of its brief under seal. According to the government's claim at oral argument, the version of the brief filed under seal would have included the text of any regulations TSA follows. The Ninth…

To piggyback on this, one of the things Jonathan Haidt has shown in his work on ideological bias is that liberals are unable to accurately understand the conservative worldview, while both conservative and moderates are able to accurately explain liberal positions.

Here's an explanation of the study:

>One other point that I find really interesting and important about Haidt’s work is his findings on the ability of different groups to empathize across these ideological divides. So in his book (p. 287) Haidt reports on the following experiment: after determining whether someone is liberal or conservative, he then has each person answer the standard battery of questions as if he were the opposite ideology. So, he would ask a liberal to answer the questions as if he were a “typical conservative” and vice-versa. What he finds is quite striking: “The results were clear and consistent. Moderates and conservatives were most accurate in their predictions, whether they were pretending to be liberals or conservatives. Liberals were the least accurate, especially those who describe themselves as ‘very liberal.’ The biggest errors in the whole study came when liberals answered the Care and Fairness questions while pretending to be conservatives.” In other words, moderates and conservatives can understand the liberal worldview and liberals are unable to relate to the conservative worldview, especially when it comes to questions of care and fairness.

From:…