Black Shards Press – Electronic Gumbo is Our Specialty

More on Aaron Swartz

14.01.2013 (11:22 am) – Filed under: Law,Technology ::

New information about Aaron Swartz’s hacking activities at MIT tell quite a different story than the one that was initially revealed by Swartz’s former attorney and expert witness over the weekend. Different enough, in fact, that I would have to say that Alex Stamos lied in Saturday’s post in which he claimed Aaron’s actions were “inconsiderate”, not “wrong”.

The Washington Post reported that Swartz invaded a MIT server closet and installed a laptop computer on the college’s network from which he downloaded the research materials in question and the Daily Mail ran pictures of Swartz as he was later caught in the act of trying to remove the computer.

Contrary to the picture painted by Stamos and others, the photos reveal that Aaron Swartz was plainly engaged in an “extra-legal” activities at MIT.  Period.  End of discussion.

In fact, what Swartz did was so blatantly wrong that I am sorely tempted to redact my THOUGHTS ABOUT AARON SWARTZ, “HACKING”, AND THE LAW post in its entirety.

However, I do believe the questions about whether Swartz’s actions warranted the kind of dogged, relentless pursuit that the DoJ engaged in deserve to be answered.  The case I understand sounds more like criminal mischief than anything else, so why was Aaron Swartz facing decades in prison?  Was he deliberately started because of his leadership in the anti-SOPA movement?  Those questions are still to be answered.

In the meantime, a White House petition has been started with the aim of removing U.S. Attorney Carmen Ortiz, who supervised the prosecution of in Swartz’s case, for “overreach.”

A prosecutor who does not understand proportionality and who regularly uses the threat of unjust and overreaching charges to extort plea bargains from defendants regardless of their guilt is a danger to the life and liberty of anyone who might cross her path.

Thoughts About Aaron Swartz, “Hacking”, and the Law

13.01.2013 (9:00 pm) – Filed under: Law,Technology ::

Although I did not know Aaron Swartz, as a technologist I am deeply intrigued – and alarmed – by the circumstances surrounding the well-known programmer’s recent suicide, weeks before he was scheduled to be tried in a high-profile hacking case.  Swartz’s crime?  He was charged with downloading electronic reams of documents from a marginally-secured network at MIT, an action that left him facing a possible 50 years in prison if convicted.

According Alex Stamos, the defense’s expert witness in the now-defunct case, Swartz did nothing legally wrong, nor was he guilty of anything except using more than his share of bandwidth.

Aaron wrote a handful of basic python scripts that first discovered the URLs of journal articles and then used curl to request them. Aaron did not use parameter tampering, break a CAPTCHA, or do anything more complicated than call a basic command line tool that downloads a file in the same manner as right-clicking and choosing “Save As” from your favorite browser.

So, if MIT’s network was open and no download limits were placed on the files, then why was the Swartz even charged? Indeed, that is the question and one that will probably never be answered. How does anything happen in the massive machine that is our legal system?

Obviously someone in the Department of Justice blew Aaron’s case out of proportion.  One person who might be able to answer this question – or be the answer – is Carmen Ortiz, the United States Attorney for the District of Massachusetts. Despite the trivial nature of the case, Ortiz’s team went after Swartz with everything they had.  Given the outcome, I don’t think it’s asking to much for Ortiz to explain herself.  Even if Aaron had not done what he did, Ortiz’s pursuit of the insignificant document downloading case cost taxpayers thousands and thousand of dollars. And for what? Nothing.

Professor Lawrence Lessig, Roy L. Furman Professor of Law and Leadership at Harvard Law school, has his own take: The DoJ overreacted to the case and, despite knowing the trivial nature of the alleged damages, charged ahead like a bully beating the tar out of a helpless victim on a school playground.  It’s hard to disagree.

In fact, the charges themselves are the crime in this case – a crime of stupidity on the part of the DoJ and Ms. Ortiz.

Was brain-dead overzealousness is the only reason the DoJ hounded Aaron Swartz into taking his own life?  Swartz, who was part of the RSS 1.0 and Reddit teams, was a central figure in the online rebellion against the Obama administration’s Internet security bill commonly known as SOPA.  SOPA was defeated in Congress after massive grassroots opposition was organized against it, in part by Demand Progress, in which Swartz was highly involved.  Could revenge have been a motive in the DoJ’s dogged pursuit of Swartz?  Another question we will probably never learn the answer to.

Aaron’s suicide will have the government officials involved distancing themselves from the case, almost as if nothing had happened.  But the facts of the case still demand answers.  If Aaron Swartz could be arrested, charged, threatened with decades of jail time, and put on trial – all because he inconvenienced a few network administrators at MIT – then the same thing could happen to any one of us.  And for what?

The purpose of the law is to protect the nation’s citizens from attack and exploitation.  The facts of this case indicate that it was Aaron Swartz who needed to be protected from the keepers of the law, not the other way around.

Not convinced?  Consider that a pair of hackers who were actually engaged in the illegal distribution of copyrighted materials were recently convicted of their crime.  Their punishment?  100 hours of community service.  The punishment fit the crime, in other words, an outcome that should be the goal of every criminal case the government decides to pursue.

As Professor Lessig says:

I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.

For remember, we live in a world where the architects of the financial crisis regularly dine at the White House — and where even those brought to “justice” never even have to admit any wrongdoing, let alone be labeled “felons.”

In that world, the question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.”

Why indeed, Ms. Ortiz?

Ayn Rand on Objective Laws

11.04.2011 (4:31 pm) – Filed under: Law ::

Ayn Rand in The Virtue of Selfishness:  “All laws must be objective (and objectively justifiable): men must know clearly, and in advance of taking an action, what the law forbids them to do (and why), what constitutes a crime and what penalty they will incur if they commit it.”

Good advice. Too bad we didn’t listen.

Justice System Fails, Cop Killer and Child Rapist Run Free

30.11.2009 (10:17 pm) – Filed under: Crime,Law,Race,Society ::

East of Houston, Baytown residents are looking over their shoulders tonight as a repeat rapist and child molester runs free, possibly in their town. Meanwhile, most of a continent away, Seattle residents are likewise afraid after 4 police officers were gunned down by Maurice Clemmons in a coffee shop in that city. Not a good day for law enforcement, nor to be a resident of either city today.

After leaving Huntsville, Texas, Arcade Comeaux, who’d been in a wheelchair for some years, managed to pull a gun on prison guards while in transit and escape in Baytown. Local law enforcement, masters of the non sequitur, had this to say about their duped my Comeaux:

“Comeaux was in a wheelchair, which he claimed was necessary for his mobility,” [TDCJ spokeswoman Michelle] Lyons said. “Since he was able to flee on foot, his claims of limited mobility obviously are in question.”

Obviously. It’s unclear how long or how frequently Comeaux, twice convicted of aggravated sexual assault, once with a child, has been confined to the wheelchair; however, he was using it as far back as 1999 when he tried to murder his wife during a prison visit.

In Seattle, Maurice Clemmons, who has a previous murder conviction in Arkansas, allegedly told associates to watch the news because he was going out to kill some cops. Unfortunately he succeeded, although it is now thought that he may have been wounded in the process.

This writer has only sympathy for the murdered police officers. It’s easy to understand how a cold-blooded killer could get the drop on them in an off-duty situation. What’s not so easy to understand is how Clemmons, a sociopath with a long history of violence, was allowed to roam the streets after serving only 11 years for his first murder.

Former Republican presidential hopeful Mike Huckabee knows the answer to that riddle. As well he should – then-governor of Arkansas, Huckabee commuted Clemmons’ sentence for the murder in 1990 and allowed him to go free.  Huckabee admitted as much today, expressing regret for his decisions and respect for the slain officers. He added this about Clemmons’ history in his state:

He  was arrested later for parole violation and taken back to prison to serve his full term, but prosecutors dropped the charges that would have held him.

Last year I endorsed Huckabee for the Republican nomination for the highest office in the land. Today Huckabee faces his Willie Horton moment, one that will in all likelihood end his political career. While it took, in Huckabee’s words, a series of errors to allow Clemmons the opportunity to kill the 4 Seattle officers, the former governor’s mistake, that of excessive mercy, was the first and most egregious violation of the public trust in that chain of mistakes.

You see, there is a profound difference between a botched prison transfer that allows an animalistic brute like Arcade Comeaux to escape through force of arms and that of a public policy decision that deliberately sets violent criminals free to kill again, as Maurice Clemmons has done. That difference is, of course, that Governor Huckabee, the highest official in his state, should have known better than to substitute his judgment for that of the men and women of the juries that sentenced Clemmons to decades in prison for his crimes. Prison guards can be bribed or hoodwinked; at their level of responsibility, perfection is not possible. But we expect more from our leaders, of which Huckabee was one.

And in the aftermath of the debacle Mike Huckabee helped to create through his excessive charity to Maurice Clemmons we see the ultimate justification for politicians to be tough on crime. It should now be obvious that our leaders’ support for law enforcement and long sentences for violent, repeat offenders is not just a set of slogans to be trotted out during their campaigns for office. Rather, it is a recognition of the highest form of public trust, that of our physical security.

There are those politicians and social justice advocates, primarily liberals, who have gone on record saying that harsh prison sentences for murderers are the result of both explicit and implicit racism, that enforcing the law is inherently unfair to African-Americans, and that the higher-than-average representation of blacks serving life sentences and on death row is proof of a racially-flawed justice system.

Yet 4 police officers are dead as a result of Huckabee’s overly liberal policy of reducing prison sentences for murderers he was responsible for keeping behind bars. That fact cannot be obfuscated by the faux intellectualism of criminal apologists. Would-be leaders who espouse these misbegotten value systems should be remembered on election day and removed from office.

In the final analysis, law-abiding citizens do not seek to prosecute or incarcerate men of any class, creed, or color because of their appearance. Rather, it is the actions of such brutes that bring upon them the condemnation of society and rightly so. Our laws are clearly defined and the penalties for breaking them should be applied with equal precision.

Sotomayor Backers Prepare to Oppo Firefighter

11.07.2009 (2:45 pm) – Filed under: Law,Politics ::

image Is there no depth to which liberal ideologues will not stoop? It seems that some of Sonia Sotomayor’s more devoted advocates are preparing to aim a campaign of “scrutiny” at Frank Ricci, the New Haven, Connecticut firefighter who sued the city for promoting less-qualified minority firefighters at the expense of whites.

If they perform the same sort of murderous character assassination on Ricci as they’ve done in the past to Robert Bork and more recently to Joe the Plumber, and Sarah Palin, the dyslexic fireman won’t have a chance.

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MySpace Stalker’s Conviction to be Dismissed

03.07.2009 (5:31 am) – Filed under: Justice,Law,Technology ::


The LA Times says that U.S. District Judge George H. Wu will throw out the conviction of Lori Drew, the mother who stalked and harassed Megan Meier, a classmate of her daughter’s, until Megan committed suicide, when his written ruling is filed, probably next week.

“Is a misdemeanor committed by the conduct which is done every single day by millions and millions of people?” Wu asked. “If these people do read [the terms of service] and still say they’re 40 when they are 45, is that a misdemeanor?”

The prosecution’s case was in fact based on some unique interpretations of cyber-law and Wu ultimately failed to buy its argument.  From a technologist’s perspective the ruling does make sense.  An online service’s terms of service are essentially arbitrary and the act of violating them is not a legal matter in and of itself.

That said, this case is another clear indicator of the difference between what is right and what is legal.  Drew is guilty as sin of stalking, harassing, and bullying a vulnerable minor and she is the primary culprit in the girl’s death.

Wouldn’t it be nice if the law were actually the sharp-edged tool that proponents of social legalism purport it to be?  In a country where smoking a cigarette is a legal violation, it makes no sense that Lori Drew will walk away from this case a free woman.

The Justice of DNA Evidence

20.06.2009 (10:43 am) – Filed under: Crime,Justice,Law ::


One has to be careful reading blogs.  For instance, I was about to do something unusual, namely to agree with Matt Yglesias, so I suppose I should have been suspicious from the get-go.  But that Matt, he’s so slick and charming he darn near took me in when he wrote about the Supreme Court’s recent ruling that denied an Alaska man the opportunity to obtain – at his own expense – a DNA test that might exonerate him of a crime. 

I didn’t buy Matt’s real agenda point, namely that the verdict was the result of judicial prejudice and inherent favoritism toward the state on the part of a conservative court led by an unerring fascist named John Roberts, but he got me thinking, why shouldn’t William Osburne be allowed to test DNA evidence, technology wasn’t available at the time/place of his trial and conviction?

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Must We Draw a Line on Free Speech?

03.06.2009 (10:24 pm) – Filed under: Abortion,Law,Society ::


In response to the murder of abortionist Dr. George Tiller, the Houston Chronicle’s editors asked a pertinent question today – “When does anti-abortion rhetoric cross the line from free speech?”

Before I begin, a question in return:  from free speech into what, exactly? 

Presumedly the editors mean a criminal act.  Fair enough – speech is either free or prohibited by force of law or the threat of same.  The boundary of our protected First Amendment rights is circumscribed by the jagged, piecemeal line of preceding incitement rulings. 

The law, imperfect as it is, draws the final line in the sand at the end of free speech.  As such, the standard ought to be heavily weighted in favor of the speaker and the burden of proof placed on those who would restrict speech.  Anything not explicitly forbidden is permitted.

Incitement to violence is one such legitimate prohibition of speech and radicals who call for violence are in violation of that standard.  Such cases are particularly egregious when committed with premeditation; conversely, we would be wise to overlook extemporaneous utterances, even when repulsive or offensive.  After all, no one can claim to control his or her tongue without fail. 

Angry, even hateful speech should not be criminalized, while deliberate incitement must be, for a crime is in the action, not in the talking, and to incite is to act deliberately.

To this end, the editors rightly point out that “[Bill] O’Reilly had excoriated “Tiller the baby killer” and his “Nazi stuff” for several years, as had Operation Rescue and other abortion foes.”

Did O’Reilly act with the intent of inciting Tiller’s murder?  It’s unlikely to say the least that such a case could be made, if only for the simple fact that O’Reilly’s quoted description of Tiller’s profession is, above all, accurate.

Tiller’s was one of only three centers in the United States to perform abortions after the 21st week of pregnancy.

If a hard line is to be drawn the law, fully restrained by the state’s burden of proof, must be the tool used to make the final mark separating legal speech from the illegal.

Yet the law should, in addition to being the final solution, also be the last.  Is it necessary to have decades of mindless shouting over issues such as abortion?  It’s obvious that neither side’s extremists can ever be satisfied and that a compromise no one likes will eventually be agreed on.

Abortions are not generally available after 16 weeks in most of the civilized world. It is inevitable that the debate in the United States eventually settle on a similar standard.  The only question is how many more babies – and how many more abortionists – must die needlessly before that happens.

Thought Crimes Bill Expected to Pass House

29.04.2009 (5:03 am) – Filed under: Justice,Law,Politics ::


HR 1913, the latest far-left attempt to pass special provisions for hate crimes, is expected to pass through the House of Representatives this week, perhaps even tomorrow.

Hate crimes are abominations most often carried out by dullards and xenophobes.  You know, the kind of people your parents warned you about as a youngster.  Nevertheless, all hate crimes legislation is bad legislation.

Why?  One important reason is because these laws discriminate based on the un-provable, specifically the perpetrator’s state of mind.  In many cases it’s not possible to know the killer’s true motive beyond a reasonable doubt.  Is this to be left to jurors?  If so, it’s a recipe for disaster if consistency of the law’s application is of any concern.

Another reason hate crimes bills should be universally rejected is that they deliberately create different sentencing scenarios for criminals for committing the same act.  Is there a significant difference between a random murder and one based on race?  No, the victim is dead in both cases and the killer, if caught, is very, very likely to go down for life, if not to the gas chamber.

Hate crimes bills remind me of that Yankee-goes-south classic My Cousin Vinnie in which the lovely Marisa Tomei has this to say to Joe Pesci, who’s about to go hunting:

Vinny Gambini: What about these pants I got on? You think they’re okay?

Mona Lisa Vito: Imagine you’re a deer. You’re prancing along. You get thirsty. You spot a little brook. You put your little deer lips down to the cool, clear water – BAM. A fuckin’ bullet rips off part of your head. Your brains are lying on the ground in little bloody pieces. Now I ask ya, would you give a fuck what kind of pants the son-of-a-bitch who shot you was wearing?

Murder is murder.  Crime is crime.  The punishment fits the crime, or it ought to.  Easy concepts but evidently too difficult for liberal lawmakers to master.

The crime isn’t hating black people or white people or purple people eaters, it’s assault, rape, or murder.  Period.

Equal protection under the law?  No such thing if you’re a patron of the Democratic party – you’re more than equal, a privilege granted quid pro quo for voting Democratic, with little regard for the social, legal, and constitutional principles on which this nation was founded. 

Thus was born the Welfare State, Affirmative Action, forced desegregation, abortion on demand, and now, apparently, state-sanctioned legal discrimination for thought crime – all for the benefit of the voters of one political party.

Some country that the Baby Boomers are leaving my kids.  ‘Preciate ya lots.

If you’re not too busy being gainfully employed tomorrow, call the House switchboard at 866-346-4611 and let them know what a mess they’re about to make.

Judges Should Eat More Fortune Cookies

03.04.2009 (10:23 pm) – Filed under: Gay Rights,Law,Society ::


While stuffing my face at the local Mongolian grill and going back for a second  soft-serve ice cream cone I received a slip of paper with a tiny bit of sagely wisdom inscribed.  My fortune read:  “Common sense is all the sense there is.”

I nodded knowingly, thinking of the Ward Churchill case and how Colorado University will most likely be forced to reinstate the horse’s behind of a professor who infamously compared 9/11 victims to Hitler’s Nazis before being fired for shoddy scholarship.

Common sense surely requires that the university be allowed to dismiss the lout.  The school is, after all, a public institution and Churchill’s salary is necessarily paid by the taxpayers, few if any of whom bear any resemblance to Jew-slaughtering storm troopers.

I popped the remainder of the ice cream cone in my mouth, momentarily contented by the sublime sagacity of the little cookie’s message.  Surely, I thought, even a doubting Thomas must accept as evidence of a higher power the providence of such timely encouragement in our lives.

You see, caught between the pincers of a rapidly-approaching deadline at my paying job and an early spring allergy attack, I’d completely forgotten about the Churchill verdict, vexing as it was when I’d heard about it last evening, and so failed to write about it until now.

Perhaps what is most galling is the knowledge that my honky bottom would be out on the street wondering what happened in about 2 seconds flat if my moniker was ever attached to such an offensive, wrong-headed missive as that penned by Ward Churchill.  Are his free speech rights that much more valuable and deserving of protection? 

As Clint Eastwood says in Unforgiven, “Deserve’s got nothin’ to do with it.”

Churchill’s tenure give him protection from his enemies that he hasn’t earned and he abused it by comparing innocent victims to hateful killers, apparently to little ill-effect.  But like all such abuses there will be consequences – for others, naturally, if not for the scoundrel himself.

Andrew Cohen:

So what’s the lesson for CU and other schools? Don’t offer tenure. Or at least don’t offer tenure until an extraordinary level of due diligence has been performed upon the candidate. Will good candidates stand for such a review? Will they be willing to be vetted like presidential nominees? Will they be willing to sign a form of “pre-nuptial” that allows the university to do what it tried to do to Churchill? It’s hard to overstate the potential impact the Churchill case may have upon the intersection of law and academia.

A contact of mine within one of the country’s major university systems told me that the tenure system would probably be dismantled within the next 10 years.  Too much chance of exposure for colleges at the hands – and mouths – of rogue professors.

Indeed, guaranteed employment is never a good thing because it removes the fear and accountability motives from the equation.  This places power on the wrong side of the employment arrangement and leads, as with labor unions, to a fundamental dissonance between employee and employer, as well as judge and citizenry, as demonstrated by Judge John Jones’ recent statement:

I think that a lot of federal judges don’t have the bully pulpit given to them that they can talk about judicial independence, and I’ve really had an opportunity to do that.

Unfortunately a large part of the public thinks judges are subject to public will, that the third branch of government is subject to majority will.

In a sense Jones is correct – the law is insulated from the whims of public opinion and for good reason.  But neither judges nor the law are above the will of the people.  The proper relationship is demonstrated by this crude chart:


As I munched on the last pieces of my fortune cookie I thought that the Churchill case would be the crux of this post.  But fate had other plans, what with the Iowa Supreme Court coming out of left field today and serving up a unanimous ruling against the state’s protection of marriage law.

As with Judge Jones’ misguided notion that judges are not accountable to the citizenry, Iowans have had their legal sovereignty stripped by an activist court that seems to know no bounds to its power to re-interpret the Constitution to fit its agenda.

As Michael says:

…never before have judges interpreted the Iowa nor the U.S. constitution in a way that gays can marry to each other [sic]. Marriage has always legally been explained as a contract between a man and a woman. If you believe same sex marriages should be legalized, you amend the constitution  and / or pass (other) laws that legalize it.

Judicial ruling should be in keeping with the intent of the Constitution.  That is why that particular document is the law of the land.  Overall, the aggregate of judges’ rulings should have the effect of smoothing out the radical edges of public opinion as well as the less volatile republican bodies that answer directly to the citizenry. 

The one thing the judiciary should never do is radically redraw the legal line beyond the point of public support.  Yet time and again in the last few decades an unaccountable judiciary has defied the public and taken radical positions that disenfranchise us by negating our will.

Personally I’d suggest that judges take some more long lunches and crack open a few fortune cookies instead of spending their time and our money and energy on their personal sociological experiments.