I think the worry is that the institute, which was always freewheeling, fun-loving, and impish-behavior-tolerating, is becoming captive to a set of lawyerly and administrative dictates. Universities are much more beholden to officials in the federal government, state, and local government, to stay on their good side. But there’s something lost when the lawyers and the people who have to make the business of the university run get to influence decisions that have real educational and philosophical and student-life-related consequences.The Swartz affair remains unutterably sad, and the article, which is well researched, doesn't make one any more hopeful.
Sunday, January 5, 2014
Losing Aaron
Terrific piece in Boston Magazine about the death of Aaron Swartz and what it says about the legal system and also about MIT. I had forgotten that I had been interviewed for this after some of my blogging (e.g. here and here) , but the article includes a pretty good quote from me:
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The contrast of your posts on Aaron Swartz to your post on Eldo Kim is striking. What makes one deserving and the other not - is it just that Kim did not make as dramatic a gesture as Swarz, that the transgression is more socially redeeming, one being on the other campus across town versus your own campus, having met the one but not the other?
ReplyDeleteI think it's the overwhelming selfishness, nay narcissism, of Kim's act. Kim hurt lots of people for his own convenience; Swartz hurt no one, and though we don't know exactly why he did the particular thing he did, as the article points out it's not clear that either MIT or JSTOR thought what he had done was actionable. The closest parallel you could really question is whether the laws about bomb threats are as frighteningly over broad and subject to prosecutorial abuse as the Computer Fraud and Abuse Act. I don't think so--anyone who has ever lied about her age on a dating site has committed a felony under the CFAA, and I am not aware of any similar overuse of the bomb hoax statutes, and it doesn't look to me like there is any reason to give Mr. Kim much of a break on the law.
DeleteI don't know, I would like to have seen Aaron take his case to a jury, and appeal it all the way up to the U.S. Supreme Court.
DeleteThe question of what constitutes exceeding authorized access is not at all clear cut. But the issue I would have also pursued is whether academic journal articles constitute information from a protected computer under the CFAA. Such articles are available for free at public libraries, the information in them has already been disclosed by publication. I can think of one or two Supreme Court Justices who might well have agreed that the content of academic publications is not information under the CFAA.
In the information crimes category of insider trading, Martha Stewart lost her jury trial and served 5 months. Mark Cuban was charged with similar conduct and went to trial and won.
José Torres-Carbonnel got 3 to 4 years a decade or so ago for stealing books from Widener Library. I wouldn't have blamed Aaron for taking the plea bargain offered of six months in jail. It is sad that he couldn't handle that prospect.
As for Eldo, he has a complete defense, if he does a little homework. The federal bomb hoax statute requires as an element of the crime that the threat be delivered "under circumstances where such information may reasonably be believed". Here we have a former Dean of Harvard College writing on his blog just days after the event, "It was so obvious it couldn't possibly be true." I rest my case.
Still, I wouldn't pillory the lawyers and administrators at MIT for the Swartz case any more than I would those at Harvard for the Kim case. They didn't know what they had when they called in the feds.
LB,
DeleteAS was threatened with 35 years. You seem pretty confident he would have been acquitted or been given a lighter sentence if the case went to trial and he could have afforded to take it all the way through the appeals process, but I think few lawyers would have counseled that given the extraordinary risk on the other side. That is why so few cases go to trial, the feds threaten lengthy terms and people settle, whether they think they have committed a crime. Especially if they are not multimillionaires. Read "Three Felonies a Day." As for Mr. Kim, I look forward to hearing the "it was so obviously bogus that the police overreacted" defense. If it works I will give you credit for having suggested it.
Martha Stewart was convicted of a different information crime - lying to the FBI.
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