I find your commentary on this case to be sort of astringent and challenging, but in a largely helpful way.
Regarding both what you've written and what Kerr has written, I think it's worth pointing out that "sympathy" isn't a prerequisite for discussing the legal issues involved in the Swartz case. It's annoying that everyone who writes about the CFAA needs to provide a benediction. The Swartz tragedy does not want for sympathy, emotion, or action-spurring anger. But we can always use more (respectful) critical thinking.
It's especially annoying in critiques of Kerr's writing. Kerr's goals were to answer some basic questions. Did the prosecution stretch the CFAA to make a case against Swartz where none was warranted? Was the prosecution's conduct towards Swartz unusually cruel? Is there any legitimate public policy purpose animating the CFAA and wire fraud statutes? In discussing these questions, Kerr more or less stipulates that Swartz did what prosecutors alleged he did. But that's all it is: a stipulation. "Assuming", Kerr asks, "that Swartz did all this stuff --- and it looks like he did --- let us take a clear-eyed look at whether and how any miscarriage of justice occurred."
To berate Kerr for not adequately addressing the question of Swartz's innocence is to miss the point of the two articles.
Regarding both what you've written and what Kerr has written, I think it's worth pointing out that "sympathy" isn't a prerequisite for discussing the legal issues involved in the Swartz case. It's annoying that everyone who writes about the CFAA needs to provide a benediction. The Swartz tragedy does not want for sympathy, emotion, or action-spurring anger. But we can always use more (respectful) critical thinking.
It's especially annoying in critiques of Kerr's writing. Kerr's goals were to answer some basic questions. Did the prosecution stretch the CFAA to make a case against Swartz where none was warranted? Was the prosecution's conduct towards Swartz unusually cruel? Is there any legitimate public policy purpose animating the CFAA and wire fraud statutes? In discussing these questions, Kerr more or less stipulates that Swartz did what prosecutors alleged he did. But that's all it is: a stipulation. "Assuming", Kerr asks, "that Swartz did all this stuff --- and it looks like he did --- let us take a clear-eyed look at whether and how any miscarriage of justice occurred."
To berate Kerr for not adequately addressing the question of Swartz's innocence is to miss the point of the two articles.