Yeah, could be. Although I think the main thing to be outraged about is that there could be direct liability for this kind of behavior. Conspiracy liability just adds to the crazy.

What part of the law are you looking at?

Conspiracy is not "just talking about." You have to make an overt act in furtherance of the conspiracy. It's a tricky area of law (and one I don't much care for) and some statements, under some circumstances, might constitute overt acts, but it's safe to say that "just talking about breaking the terms of service" isn't enough, without more. And in this respect CFAA is really no different from any other law. Of course, if the law is bad, conspiracy liability for breaking it is even worse. But throwing around a lot of half truths about conspiracy liability really won't shed much light on anything, I don't think.

Well...they're not as wrong as you'd think. The law criminalizes "exceeding authorized access" which has been construed to mean "violating the TOS" if it

I think TFA might be wrong that this covers violating the TOS of news sites -- it would be a stretch (but not impossible) to say that online news falls into any of these categories. But it could cover lots of other online services with pretty disturbing results. (Think: lying about your age on an online dating site.)

Well, it doesn't sound like you've looked at TFA too closely. It just points out that some news sites happen to have provisions in their TOSs that (purport to) restrict access to people over a certain age. The new draft CFAA would apparently make it a crime to violate those terms.

This is a stupid, unjust law, but I think it's probably not the product of a dastardly conspiracy to keep the public away from the news.

I don't know! Slashdot what have you done to us!?

Haha. An interesting -- and appreciated -- distinction. In this case, though, I think I'm right. I've never heard any argument that Swartz's case was uncertain due to ambiguity in the statute. Rather, the outrage comes from the fact that it was enforced at all, particularly in view of how rarely CFAA violations are prosecuted.

That is an excellent point. Thanks.

I have no idea what you're referring to.

Well, in my experience, comparing anything to Nazi Germany is a bad idea because people tend to think that you're making a comparison to the Nazis, on the merits.

If you read the words that I wrote, it is obvious that my answer to this is "no." Though perhaps I could have staved off the faux-misunderstanding if I had said "absolutely free" instead of just "free."

I thought we were arguing about what level of discretion they should have. As a legal matter it is certainly true that nobody from outside the Executive can make a prosecutor prosecute anyone. (With a few oddball exceptions like special prosecutors.)

Congratulations. He probably was.

This is a curious blend of perfect sense and total lunacy. I'll focus only on the crazy parts:

Huh. The CFAA is pretty bad, but I think this may be a stretch. Of course I assume that your point -- I want to be careful not to miss it, despite Godwin's invitation to do so -- is not that CFAA is much like the Nuremberg laws but that nobody should do simply what the laws allow uncritically. This is fair enough. Though the freedom one feels to personally review the laws for compatibility with one's own morals should probably bear some relation to the legitimacy of the government that enacted them. Here is one of the key points where -- at the risk of understatement -- the Nazi comparison breaks down. There's no point in having laws if everyone feels free to obey/enforce them or not solely according to the dictates of their own consciences. Some sort of balancing is in order between total subservience to the laws and your "so what that they passed it?" attitude.

Well, for one thing, someone has to make an initial judgment about the likelihood of guilt, conduct an investigation, reassess the evidence post-investigation, and then bring the case to trial. These are the primary responsibilities of prosecutors, and none of them have anything to do with deciding which laws to enforce. This is not to say, though, that I think prosecutors should have no discretion at all. But the discretion that they have ought to be related to the prioritization of prosecutorial resources, not all-things-considered-judgments about the morality of laws. Of course, a personal assessment about the quality of the laws to be enforced might affect this prioritization.

I have no disagreement with any of this. I think the upshot (which I never really brought home in what I wrote) is that prosecutors have some discretion, but it's limited by a countervailing obligation to enforce the laws that were actually passed. So, yes, they do have some responsibility for the charges they bring, but it's responsibility they share with the legislature.

No, he was. As has been quite widely discussed here and elsewhere he was accused of violating the Computer Fraud and Abuse Act and, from what I've read, he probably was actually "guilty". And, yes, 35 years is the actual punishment. Sure, the prosecutors have discretion in prosecuting crimes, but I continue to be amazed that all of our abuse is heaped upon the prosecutors for trying to enforce a law THAT CONGRESS ACTUALLY PASSED. Don't get me wrong, I think that 35 years (or, really, any punishment at all) for what Swartz did is nuts.And I think that there is an under-appreciated moral dimension to the prosecution decisions that US attorneys make. But then again, do we really want a system where the prosecutors feel free to enforce a law or not based on their own preferences? Isn't this what a legislature is for? Why are we focusing on the prosecutors who tried to enforce it instead of the actual people who passed and have the power to fix the law?

A small point: TFS says that both rulings are likely to be appealed, but the Aereo decision was actually from the 2nd Circuit Court of Appeals. So, unless the Supreme Court takes the case next term (extremely unlikely) that decision is final.

Well, I know that a "pop-up store" is, roughly, a very small, temporary, and in some sense "unofficial" (or, unofficial seeming) store where a limited selection of merchandise is sold out of a space not normally used for the purpose. I assume a pop-up museum is analogous.

Well, yes. Obviously I cannot claim that it literally never happens. But I can tell you that, in my experience, it doesn't. Since I am in a position to observe a great deal of what goes on in federal litigation (including many very high-stakes cases) I can say with some confidence that corruption is extremely unlikely to be the explanation for the outcome of any given case. You may call this an anecdote and, of course, it is. But it's much more evidence than you (or, I'd wager, virtually any other /.er) have.