I read through this and got the opposite impression from most people who are responding here.
This is explicitly not an analysis of right versus wrong. This is an analysis of the cudgel that the prosecutors were about to use on Aaron. This is about whether the charges were likely to stick in court.
The analysis says that the cudgel was very strong. Aaron had real cause to fear. And his defense was going to face an uphill battle.
I look forward to part 2, which is explicitly supposed to be an analysis of whether or not the cudgel should have been swung in the first place.
I would be shocked if Part 2 says anything other than "the prosecution's conduct was abusive", given that Swartz's violations were done without commercial intent, caused little if any lasting damage, and were (mostly) not malicious. The defendants in the Gonzalez carding ring got lower sentences than Swartz was threatened with.
I suspect the same, else I wouldn't be looking forward to it.
But even though I expect the conclusion, I'll still be very interested to see how a legal expert makes the case persuasively, and manages to support it with objective examples.
However your comparison to the Gonzalez carding ring is highly unfair. We've been repeatedly warned about the difference between statutory maximums and actual penalties. Jail sentences are like college tuition, the actual amount you pay is not the official sticker price you're given.
How much less? According to http://www.boston.com/metrodesk/2013/01/14/mit-hacking-case-... the plea bargain that Aaron was offered was that he had to plea guilty to all 13 counts, and spend 6 months in jail. That's a lot less than what the defendants in the Gonzalez carding ring got.
But that's a plea deal. If Aaron took it to trial and won some, lost the others, his likely sentence would be something greater than the plea bargain and significantly less than the maximum. The judge would have discretion, and would likely take everything you say into account in determining the penalty. So I'd still hope it would be less than what the defendants in the Gonzalez carding ringt got.
That said, being declared to be a felon is no picnic, as many can attest. Doubly so if, like Aaron, you have friends all over the world and would like to travel to conferences in other countries. And yes, you can sometimes get the felony officially expunged years later, but even that is imperfect. (As I learned sharing beers with Randal Schwartz...)
We know the prosecution felt a 6-7 year outcome was reasonable for the offenses Swartz committed. We know that outcome is worse than that obtained by members of a carding ring. I agree with you: the carders plead out, and the prosecutors were offering a much more lenient sentence to Swartz for pleading out.
The whole thing is a tragic game of chicken. Both players seem to have been dysfunctional in different ways. But the prosecution wielded far more power. If what we know about the case is the whole story, then any reasonable person looking at this case should have been able to see that a 6 year sentence was an unjust outcome. Unlike most HN'ers, I actually have no problem with plea deals and stern prosecutions for people who go to trial; the system has to work that way unless we fund it differently. But the stern prosecutions need to be hemmed in by reason and fairness and logic. Here, it doesn't seem to have been.
This is explicitly not an analysis of right versus wrong. This is an analysis of the cudgel that the prosecutors were about to use on Aaron. This is about whether the charges were likely to stick in court.
The analysis says that the cudgel was very strong. Aaron had real cause to fear. And his defense was going to face an uphill battle.
I look forward to part 2, which is explicitly supposed to be an analysis of whether or not the cudgel should have been swung in the first place.