Sunday, January 13, 2013

Aaron Swartz: A Lesson

Aaron Swartz was the 26-year-old Internet freedom activist who committed suicide on Friday, as the date approached for his trial on federal charges. Swartz was charged on several counts after he allegedly downloaded a bunch of scientific papers from JSTOR via a connection he established in an MIT wiring closet. It was a peculiar act --- Swartz was a fellow at Harvard and could have accessed the papers in an authorized way. I leave it to others to speculate on the symbolic significance, but it's pretty clear he wasn't accessing anything he wasn't already authorized to have, and he wasn't planning to make any money by doing it.

I didn't know Swartz well, but it was a privilege to know him at all (we were in a meeting together at Charlie Nesson's house, strategizing about the Google Books settlement).  The New York Times has a good obituary---not easy to write, and it must have been written in haste. A memorial site has been set up to gather reminiscences and emotions. Aaron's partner has written a heart-wrenching remembrance.

I feel I know him better than I really do because I have known others who, in certain ways, resembled him: brilliant, intense, sleepless, idealistic, principled, ready to test the edges of conventional behavior. Aaron Greenspan seems to be right when he considers himself, in some ways, a kindred spirit. 

Greenspan shares with two of my other students, Bill Gates and Mark Zuckerberg, the distinction of having Harvard hassle them because of what some at the university regarded as sketchy behavior with information resources. Gates famously used Harvard's PDP-10 to write the original BASIC interpreter; there were those at Harvard who took a dim view of that, since the machine was funded by the Defense Department for government-sponsored research. A version of the Zuckerberg story is told in the Social Network movie; it was in fact reported in the Crimson at the time. That report suggests that Zuckerberg got off without any serious penalty. In all these cases, the hotter heads at Harvard did not prevail, and the students wound up perhaps annoyed at Harvard, but not seriously punished. (Of course, they also may have done nothing wrong, but that is never a guarantee that some vague rule will not be stretched to fit the facts of a case.)

Then there is the case of Robert Tappan Morris, Jr., who let loose the Internet Worm in 1987, while he was a Cornell graduate student. At the time the anger directed at Morris was intense, and he wound up with a felony conviction, and was fined, served probation, and had to do community service. Today many experts think even that was excessive punishment, given Morris's benign intent. After Cornell expelled him, he earned his PhD at Harvard, and he too has gone onto a successful career--he is a professor at MIT.

I thought of all these people when I read Larry Lessig's angry post about Aaron Swartz, Prosecutor as Bully.
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.” For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million dollar trial in April — his wealth bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge. And so as wrong and misguided and fucking sad as this is, I get how the prospect of this fight, defenseless, made it make sense to this brilliant but troubled boy to end it. 
Fifty years in jail, charges our government. Somehow, we need to get beyond the “I’m right so I’m right to nuke you” ethics that dominates our time. That begins with one word: Shame.One word, and endless tears.
Swartz's family released its own statement, calling out not just the federal prosecutors but MIT:

Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims. Meanwhile, unlike JSTOR, MIT refused to stand up for Aaron and its own community’s most cherished principles.
What is it that leads those with prosecutorial authority to abuse it? In the case of the federal government in the Aaron Swartz case, there was almost certainly some score-settling; the feds decided to drop an earlier case against Swartz involving downloaded government documents once they realized that Swartz had done nothing illegal. But what was MIT's rationale for going after Swartz for exactly the kind of hack at which the Institute has traditionally winked?

I don't know, but I wonder if it isn't a phenomenon related to the unconscionable over-prosecution of the Gov 1310 "cheating case" at Harvard. (See Why Harvard Mishandled Its Cheating Scandal for a cogent analysis by Richard Levick, a Forbes blogger.)

Decisions like these about charging and disciplining young people should be informed by the fact that they are growing up, learning the ropes, and testing the limits. They may be operating in a zone where the rules are unclear, or have been interpreted differently in different circumstances. Context and intent should be important considerations. The very fact that the statutes allow a range of responses, including none at all, implies that superficially similar cases need not get the same response. As Lessig says, I get wrong. But I also get proportionality.

There is a lot of action on the Web about how to respond to Swartz's death. There is a petition to pardon him for the crime for which he was to stand trial. There is another petition to remove the US Attorney responsible for prosecuting his case. There is a paper-posting protest on Twitter, in honor of Swartz's JSTOR-liberating hack.

But I hope authorities everywhere, in college and in the state, remember the rewards to society of restraint in prosecuting young people in cases like these, where malicious intent and even the profit motive are entirely missing. Put yourself in the shoes of the alleged criminals, and don't try to build your career by showing how harsh you can be. Hounding a young person may cost a career, or a life.

Gentle hands, I beg you all.

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