Barbaric American Judicial System

Since I was aware of Aaron Swartz, I have asked nearly a hundred people (friends & strangers) the following sequence of questions:

• A person is being prescribed 35 years in prison or $1,000,000 as fine. What are your 3 guesses to his crime?
• If a person was found guilty of pouring acid on another helpless man and dragging other helpless naked men around on a leash and repeatedly (sexually) abusing helpless men & beating them up continuously till they are near death & then letting them heal to be beaten up again, how will you, based on your answer to the previous question, punish this person?

The answers only vary in their details. Every person I know (and this experiment has been carried out with friends across several countries) feels that the crimes must be heinous or massively exploitative to deserve 35 years and upon hearing the sickening details in the 2nd question prescribe punishments ranging from the electric chair to hanging till death that person & everyone associated with that crime.

Ladies & gentlemen, I present to you, the barbaric judicial system that is America. Here is a country that claims to be developed (you shall soon read about its laws against children), educated (surely you are aware of its gun laws & rates of homicide & rape) & a progressive democracy but is as barbaric as Stalin's gulag or even Hitler's camps (and the appendix to this post will provide data). To actually necessitate that the people keep reminding the government of what is right & what is democracy is equivalent to not finding it in the first place.

But this post wishes to raise the global consciousness around the victimisation of Aaron Swartz, a brilliant mind & colleague.

Who is Aaron Swartz? Aaron Swartz is a conscious soul who refuses to accept the status quo on matters of ethics especially the ethics that the American government & corporates take. He is a frequent television commentator and the author of numerous articles on a variety of topics, especially the corrupting influence of big money on institutions including nonprofits, the media, politics, and public opinion. From 2010-11, he researched these topics as a Fellow at the Harvard Ethics Center Lab on Institutional Corruption. He also served on the board of Change Congress, a good government nonprofit.

He has also developed the site theinfo.org. His landmark analysis of Wikipedia, Who Writes Wikipedia?, has been widely cited. Working with Web inventor Tim Berners-Lee at MIT, he helped develop and popularize standards for sharing data on the Web. He also coauthored the RSS 1.0 specification, now widely used for publishing news stories at the age of 14 and there is much more to his list of achievements.

He is currently facing 13 felony charges for which he would be slapped with 35 years in prison or $1,000,000 as fines. Yes, the same person in question 1 above. What he is alleged to have done was download several academic articles via a free account that was legally provided to him.

What is illegal in this act? Nothing. What he has been accused of is downloading "more than acceptable" amounts of these documents.

Oh! Is the academic journals storehouse pressing charges against him? No.

Is the institution (MIT/Harvard) who gave him the free account legally, pressing charges against him? No.

How much of a monetary loss has happened? None, because these very articles if downloaded over a period of 6 months instead of weeks would still amount to the stash they found on Aaron's laptops & it would have THEN been legal! Secondly, those articles are now publicly available!

So who exactly is pressing charges? The United States of America!!

Did some article written by the FBI or Obama, get downloaded!!? None.
Then, why? Victimisation.

As David Segal puts it, "It's like trying to put someone in jail for allegedly checking too many books out of the library".

Here is the complete indictment charges against Aaron. Yes, there are points in it that make you wonder if what Aaron did was entirely correct! Perhaps not (if proven that he actually did them). Allow me to chronologically list things down (minus the drama):

1. Swartz registered his computer under a fictitious name. This is not an offence. Very few people will register under their full name (unavailability is one reason). If I were in MIT, I would register as Eroteme. MITnet's Rules of Use do not prohibit one from using a pseudonym.
2. He used a program to download content from JSTOR. Using a software program to download & manage downloads is not an offence. Most computer savvy people use one to accelerate downloads or thread them. Bots are not allowed by JSTOR as per their T&C.
3. The rapid & massive download of articles impaired JSTOR's computers & threatened to misappropriate its archive. Threatened, not established. No, I am not talking legalese (while I could), but this has to be established else any download of tens of articles could be deemed as "threatening". Notional or perceived offence is not an offence. It is equivalent to my considering you a criminal because you come from a neighbourhood with a high crime rate (and the American judicial system has successfully created many such ghettos already. Do read the content on The Sentencing Project's site) & demanding that you be thrown behind bars with no further evidence required. Impairment of computers can happen for a variety of reasons. If the servers were designed poorly to only manage 10 concurrent requests, then anyone firing 11 might bring them down & can potentially be charged with downloading "massive" amounts of data. If the same 1000s of requests had come from across the globe, we would still find JSTOR servers buckling. Tonnes of sites go through this problem (Twitter, Facebook, etc.). Aaron's intention, nowhere, has been proven to bring down JSTOR.
4. The indictment charges claim that (point 18) Aaron stole those articles. This is baseless. By any definition of thievery, downloading of articles via a legal account does not amount to stealing! JSTOR still had those articles with them. That MIT & JSTOR resorted to means of preventing Aaron access is not equatable to recognising his activity as theft. If it were so, all they had to do was file a complaint with the police & verify each person whose computer was connected to the network using that IP. Neither of them did either of these options. They just rolled their eyes & decided to make it difficult for people to do this in future. And how? Read on.
5. JSTOR blocked the IP, 18.55.6.215. Who grants IPs? MIT. So what did Aaron do? Request and obtain a new IP. Who granted it? Yes, MIT again. So if getting a new IP was illegal, who performed the illegal act?
6. JSTOR blocks MIT. Not because MIT was bad but because JSTOR didn't have the brains to secure their contents & prevent unmanageable downloads of their content. If they knew how to stop & later prevent a device from downloading "unacceptable" amounts of legally available data (which is why David Segal's statements make sense) they wouldn't have to make all MIT suffer. Is Aaron responsible for this? No. He wasn't stealing or illegally using any loopholes in JSTOR's systems. Frankly, he would have preferred more robust systems which would have let him complete his task without them buckling.
7. MIT decides to not give that Acer laptop an IP. Note that MIT did not contact Aaron & warn him or physically remove him from the campus. What Aaron was doing was inconvenient & not illegal. So what does Aaron do in response to MIT's move? He changed his MAC address. MAC address spoofing is not illegal. Anyone with the right know-how can do it. If I changed my network card, the MAC address would change automatically. Had Aaron simply bought another network card & installed it, he would essentially be taking the expensive route to MAC spoofing.
8. So far, nothing illegal in any of Aaron's activities.
9. Point 19 tries to cry foul on Aaron's actions. It amuses me to see the bickering childishness of the claim. If all the users of MIT were to simultaneously download several thousand articles from JSTOR, it would have brought the system down & JSTOR would have blocked MIT. I have already cited the MITnet's rules of usage above. Refer to that & compare with the stupid childish claims made in Point 19. None of them hold water as we have already seen.
10. Aaron obtains another guest account. To obtain another guest connection doesn't appear to be illegal else MIT (with all its remarkable brains) would have prevented it from happening.
11. All the claims in point 21 have already been proven to be weak & desperate of the United States of America (the only plaintiff in this case).
12. Aaron uses another computer to carry out his tasks. What is legal for the 1st computer is legal for the 2nd. Hence, nothing to add here. Together they brought down JSTOR's system. Nothing new there. JSTOR blocks MIT. Nothing new there too.
13. Note the intensity of the "crime". In point 25, the United States of America shamelessly admits to the "horrific" nature of the "crime" committed by Aaron Swartz - he downloaded 2 million articles of which nearly half were research papers & remaining being reviews, news, editorials, and misc. documents. If I could download BBC's public content & in the sheer rapidity of my task, bring down BBC servers, am I a criminal?
14. Points 26-28 talk about how Aaron plugged his machines directly into the switch without registering with MITnet's guest access services.
15. Points 29-31 talk about his repeating all of that at another MIT building before being caught with the USB drive containing a program with "distinct similarities" to "keepgrabbing.py".
16. Point 32 summarises the volume of Aaron's act & Point 33 is the United States of America whining about why they are in the right for filing this case. Note the phrase "intended to" and not actually having done anything as claimed.

My points 14-15 are where things appear grey. Was Aaron right in doing that? Did he break into MIT's buildings? Then why didn't MIT file a complaint against Aaron? Were there any signs of breaking in? Why is none of that part of the whole story? Here is the motion to suppress all fruits of unlawful arrest. Please read through it carefully to understand the legal implications of the "evidence" used against Aaron.

Nevertheless, we can step out of the legalese & simply look at whether what was done (if assumed to have happened) was right or not. Maybe Aaron should have done differently. Maybe he should have not harassed MIT & JSTOR. Maybe he should have spread his downloads across months. Maybe he should have discussed with JSTOR into making this content available free (and they did make it publicly available after the incident). Maybe a hundred million things! Point is, all these "maybe"s essentially are coming up with ways by which Aaron could have been less of a nuisance. It doesn't say "He was wrong & a criminal". That is my point. Downloading an "unacceptable" amount of files otherwise legally available, is not a crime. Even if it is something to be discouraged, it doesn't count as felony! There are 13 felony charges against Aaron Swartz by the United States of American stupidity! Felony!? FELONY!?

The United States of American stupidity have claimed that there is a copyright infringement. But JSTOR was making them accessible via the university account. How then is it copyright infringement? Had he downloaded only 100 per day over 15 years would that be a copyright infringement? No. So why is it an infringement when all done in a couple of weeks? Here is the infantile response from the Copyright Alliance.

This is more like sneaking through a library window in the middle of the night and making off with the entire non-fiction section.

How? The articles he downloaded are still there with JSTOR. How is it theft, then? Given that he used a legal account/access mechanism to download content from JSTOR, he didn't sneak in through any window. Given that the articles are still there & available, he didn't "make off with the entire non-fiction section".

If the allegations prove true, the episode is revealing in numerous respects. First, of the mindset of those who engage in intellectual property theft. The indictment states that Swartz “intended to distribute a significant portion of JSTOR’s archive of digitized journal articles through one or more file-sharing sites.”  Sound familiar? This is no different than those who steal other kinds of copyrighted works and monetize them through advertising or through subscription fees, only in this instance the victims are a non-profit and educational institution.

I would hope that people trying to protect my copyright would be more sensible than this Sandra Aistars. There isn't any case for theft here, sweetie. The indictment states that Aaron "intended" which means he might not have intended to as well. Secondly, even if he intended to, it does not say that he would have made money out of it! So the rest of her babble doesn't make sense because it is baseless or only based on her paranoia. There has never been evidence (AFAIK) of Aaron monetising anything he intended to distribute. Even if you read his Guerrilla Open Access Manifesto you will find that he is dead against it. So where is there this suspicion of monetising what he has obtained? Ms. Aistars would do well in educating herself before continuing to make a fool of herself as follows:

These individuals are not “setting information free” as they like to proclaim. And they are not “removing the middlemen.” They are flat out stealing the work of others and using it to prop up their own commercial endeavors. It is the perfect example of the unapologetic belief that what’s mine is mine, and what’s yours is also mine, and if I can get some venture capitalist to cash me out for millions or billions of dollars based on the traffic a library comprised of someone else’s lifetime of work has generated to my site, so much the better.

There is not a single point she makes about the exact nature of infringement that she condemns, because there is none. She keeps harping about the "stealing" that never happened & sympathises with JSTOR & MIT neither of whom have pressed charges because they are both sensible & aware of the lack of any theft.

Here is JSTOR's statement regarding this incident. Note what they have to say:

We secured from Mr. Swartz the content that was taken, and received confirmation that the content was not and would not be used, copied, transferred, or distributed.

Of course, you must note how they carefully word their statement. Not at one place do they state why it is exactly unauthorised. As I have mentioned earlier, if the same activity spread of 15 years is not unauthorised, why would it be when done over few weeks? JSTORs terms of conditions now have mention about denying use of software programs to automatically download content. Not sure if it was there earlier as well. Perhaps it was there. Which means that Aaron did something which JSTOR stated as unacceptable. Fair enough. JSTOR should be punishing him, but they aren't. They clearly state that they don't want to!

The criminal investigation and today’s indictment of Mr. Swartz has been directed by the United States Attorney’s Office. It was the government’s decision whether to prosecute, not JSTOR’s. As noted previously, our interest was in securing the content. Once this was achieved, we had no interest in this becoming an ongoing legal matter.

My point is simply this: Only JSTOR and/or MIT have the right to punish or seek punishment for Aaron and not the United States of American stupidity. By complaining against Aaron & in the manner in which they have, the United States of American stupidity has clearly demonstrated that they will twist anyone's arm if they, their friends, the corporates or anyone so pleases and there is no one who can do anything about it. This is called victimisation.

In case you wonder how corporates are involved here, please read this. And this is not the only way in which they are involved in all of this.

If you are convinced by the arguments laid down here, please visit:

http://act.demandprogress.org/sign/support_aaron/
and show your support. Please spread word about this trial. Please educate friends & family about the nature of this trial & what its implication are on individual freedom. What happens today in the USA could happen elsewhere tomorrow. If you care about the best in the human race (and there is very little to be proud of), then please demand that Aaron be freed or receive commensurate punishment only if demanded by MIT and/or JSTOR.

If all that interests you is this case, you can stop reading here (assuming you did make it till here). What follows is my take on the United States of American stupidity as demonstrated in its judicial system. The primary reason I proceed is to show how flawed, partial & unfair it is, which should help you decide why the prescribed sentence for Aaron is disgusting & inhuman. This also provides the reader for data behind the 2nd question asked at the outset.

Please click on the image above for a sample of unfairness. The crimes range over all possible acts of felony! This, is real felony & still none of them get anything close to 35 years in prison! But Aaron who downloads research articles gets 35 years in prison!

Here is where I would like people to revisit the notion of incarceration (and whatever fancy name we give it). Many researchers have argued that incarceration is not the solution & is often the problem. Here is an article that could get you started. United States of American stupidity imprisons an obscene number of people for the littlest of offences. I urge the reader to study the reasons behind why incarceration is not the wisest means to rectifying misdemeanours. Why not invest in correctional facilities which actually work towards guiding anti-social people? Aaron is not anti-social. I think once we understand why & when incarceration helps, many notions of law & correctness will fall into place.

Now allow me to ramble a bit about the elements in the legal system that make me roll my eyes!

While many prisons are indeed shutting down, the judiciary's mentality has not changed much. All you need to search for is crazy sentences (of up to 624 years) that have been slapped on wrong-doers. That doesn't even make sense.

What doesn't make further sense is the idiocy of the ex-President Bush. No, he is not an exception because he was elected twice by the people (which would mean that the current population of USA is an exception to the norm of generations that have populated that country). When Bush granted Toussie pardon, it did get many people angry. He did rescind it, but the entire act raised eyebrows. How can pardon be granted to scheming white-collar crimes? They are plotted & well thought out and not acts of frenzy or misguidance! 

Amongst the stupid facets of this system include the prison sentences for children. Did you know about this? In 2005, the U.S. Supreme Court declared in Roper v. Simmons that death by execution is unconstitutional for juveniles. Before the ruling, 365 children had been legally executed in the United States, including 22 since 1985, and nearly 3000 children age 17 or younger who had been sentenced to imprisonment until death through life-without-parole sentences imposed with very little scrutiny or review.

Ramble complete!

The reason why I think USA is far from a progressive democracy is based on two aspects:

1. The treatment of its own people, segregated based on race, affluence & alignment to its paranoid policies.
2. The treatment of people who are not American via war crimes & interference in local governance.

While I have provided some evidence to the 1st, evidence to the 2nd point are best provided as references that the avid reader can go through. Allow me to summarise a statistic, though. Stalin's Gulag & Hitler's camps caused the death of several million Ukrainians & Jews, US war crimes (and it is fine to go back in history as Stalin's acts were of the 1930s) are nearly of equal number (counting Hiroshima Nagasaki, Vietnam, Cambodia, Korea, Japanese war crimes, Gulf war, the Al Qaeda drama & the drone attacks amongst the many others) & mounting.

1. http://www.thirdworldtraveler.com/Truth_Commissions/Truth_Commission_page.html
2. http://www.mediamonitors.net/francis19.html
3. http://www.informationclearinghouse.info/article3466.htm
4. http://www.iraqbodycount.org/
5. http://rense.com/general69/tpten.htm
6. The role the US had to play in Unit 731: http://en.wikipedia.org/wiki/Unit_731
7. Indirect damages: http://en.wikipedia.org/wiki/Al-Shifa_pharmaceutical_factory
8. http://en.wikipedia.org/wiki/United_States_war_crimes
9. http://en.wikipedia.org/wiki/Vietnam_War_Crimes_Working_Group_Files
10. http://www.tomdispatch.com/post/73753/
11. http://www.internationalist.org/fallujarape0412.html
12. http://www.oilempire.us/warcrime.html
13. http://www.worldfuturefund.org/wffmaster/Reading/war.crimes/US/U.S.Philippines.htm

How many of these crimes go punished? Virtually none! When a country is unable to be fair to its citizens as well as in its treatment of people of other countries, such a country needs to introspect & listen to the bitter yet vital advice of the wise people within & without. If the USA refuses this opportunity to tone down & introspect, it will be lost for good.