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Column There is no sense in electronic crime sentencing
Fri Jan 25 2013, 13:43

I'M AVERSE to change. Whether we are talking about pants, socks, computers, televisions, types of pizza, or sheets, I like to move slowly. I don't embrace change, I hold it at arm's length.

But, one thing that I would like to grab by the throat and change is the heavy-handed way that businesses and the courts deal with some electronic crimes. Which is too hard. Much too hard.

I'm not talking about stealing from people's bank accounts, or abusing people, or sharing awful, terrible material... crimes where the victim is not a human being, and has not had any real, painful damage done to them. I'm talking about Gary McKinnon, Aaron Swartz, and Richard O'Dwyer.

These men, young men, did not set out to cause any major harm, really, and while they all did what they did for different reasons, they were all joined in one thing, the fact that they were pursued by very angry and determined opponents.

We know what happened to Aaron Swartz. He was presented with the threat of 35 years or more in prison because he liberated some scientific material from the academic archive Jstor. Swartz, subjected to merciless and relentless pressure, committed suicide.

Jstor has said it was saddened by the news and that it regrets any involvement in what happened. It's hard to imagine that anyone would want to be associated with the suicide of the young creator and protester.

Gary McKinnon was a young man when the spectre of extradition leapt out of his wardrobe. And for a decade he faced six decades of imprisonment in America. Richard O'Dwyer, who linked to material on the internet, was also pursued by the US government. The pressure on these two, and McKinnon was an acknowledged suicide risk, must have been unbearable.

In the last few months the pressure eased in two of the cases. McKinnon and O'Dwyer saw victory, but in Swartz's case the end was one of pain and sadness, of regret and emotion. The internet erupted in support of the young software developer and internet freedom activist. It wept collectively and mourned his passing with a tribute of released documents.

In Europe, the EC's vice president, Neelie Kroes, said that his passing should open a discussion about the European legal framework. "This was a man who saw that greater openness can be good for citizens, and good for society. Hugely disruptive - but hugely beneficial," she said.

"I would never condone unlawful activity. But in my view, if our laws, frameworks and practices stand in the way of us getting all those benefits, then maybe they need to be changed. Agree or disagree with his methods, Aaron could see the open direction we're heading in, and its benefits."

It is a shame that the United States did not share this view when charges were announced against him. Then, the person who co-created Reddit, was talked about in different ways.

"SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million," was the official line on his charges.

"Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars," added US Attorney Carmen M. Ortiz. "It is equally harmful to the victim whether you sell what you have stolen or give it away."

Here it is important to remember the words of the victim, Jstor. It said that it had resolved its problems with Swartz already and amicably. Overall though it was saddened to have played any part in the tragedy.

"We extend our heartfelt condolences to Aaron's family, friends, and everyone who loved, knew, and admired him. He was a truly gifted person who made important contributions to the development of the internet and the web from which we all benefit," it said.

"We have had inquiries about JSTOR's view of this sad event given the charges against Aaron and the trial scheduled for April. The case is one that we ourselves had regretted being drawn into from the outset, since JSTOR's mission is to foster widespread access to the world's body of scholarly knowledge."

A loss of life is a tragedy, a leaking of information is not. These two phrases should never be paired together again. If we learn anything from these cases it should be that a more careful, considered and reasoned approach is needed when dealing with suspected electronic crimes. We in the UK, Europe and the US must understand that now. µ


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