Aaron Swartz Post-Mortem: So Now You Know (Update x2)

It would be outrageously presumptuous for me to suggest anything about why Hacktivist Aaron Swartz too his life, but  others who knew him, including his family, have  offered insight, and it would be wrong to ignore it. 

His  family explains the pressures that drove him to this final act:

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.

Larry Lessig, who was involved in Swartz’s defense for a period of time, speaks to the government’s “bullying”:

But all this shows is that if the government proved its case, some punishment was appropriate. So what was that appropriate punishment? Was Aaron a terrorist? Or a cracker trying to profit from stolen goods? Or was this something completely different?

Early on, and to its great credit, JSTOR figured “appropriate” out: They declined to pursue their own action against Aaron, and they asked the government to drop its. MIT, to its great shame, was not as clear, and so the prosecutor had the excuse he needed to continue his war against the “criminal” who we who loved him knew as Aaron.

Lessig goes on to make a sentencing argument, why the wrong wasn’t so wrong, the harm hardly so harmful.  When Swartz’s case first became news, I wrote about it.

By no stretch of the imagination do I believe that Swartz’s attempt to download the JSTOR content was acceptable or lawful.  He’s no Robin Hood, and the ideologue’s belief that digital content should be free for the taking is nothing more than religious pap, a belief that fails to bear out under rational scrutiny.

At the same time, this prosecution seems to be nothing more than a vindictive act by the government, given JSTOR’s agnostic, at worst, stance toward Swartz.  They worked it out and the story should have been over.  It’s just that the government can’t let it go, given that they finally have a case against a targeted individual.  Vindictive prosecution, no matter what the underlying wrong, is a due process violation.

While I didn’t (and still don’t) share the Hacktivist’s creed that all information must be free, I’ve since learned a great deal more about MIT’s “cherished principles,” which both explains why Swartz’s access to a closet and ability to engage in this conduct at MIT was not only hardly as “criminal” as it might have been elsewhere, but frankly a tolerated, if not encouraged, way of life there.

As Alex Stamos, who was to be Swartz’s expert at the trial, explains:

In the spirit of the MIT ethos, the Institute runs this open, unmonitored and unrestricted network on purpose. Their head of network security admitted as much in an interview Aaron’s attorneys and I conducted in December. MIT is aware of the controls they could put in place to prevent what they consider abuse, such as downloading too many PDFs from one website or utilizing too much bandwidth, but they choose not to.

There is no doubt that this is an accurate reflection of the community ethos of the Institute. Why the office of legal counsel at MIT did not show the guts to make this plain to the government is inexplicable, and disingenuous. Did they cower in fear of the government’s bullying too? If so, then they are an embarrassment to the Institute and are unworthy of their jobs.  And if not, then their failure to tell the government to get lost is inexcusable and flies in the face of the MIT ethos. Again, they are unworthy of their jobs. No matter what the excuse, the fact that MIT counsel didn’t do everything in their power to quash this prosecution from their end is a disgrace.

But there remains a side of this tragedy that the geek community misses. Government overreaching, “bullying” as Lessig calls it, didn’t start on the day Aaron Swartz was arrested.  The eulogists, friends, watchers from the Hacktivist side seem to think this was an affliction that happened only to Swartz. 

Hardly. Aaron Swartz was just today’s victim of government overreaching and abusive prosecution, largely undistinguishable from the multitudes who came before him. But you don’t know about them, as they weren’t 14-year-old RSS code writers. So you didn’t notice. You didn’t care. They didn’t exist to you, even as they faced 50 year sentences just like Swartz.

Not even his friends argue that what Swartz did wasn’t a technical violation of law. They did argue that the vehemence with which the government went after him, the threat of so many decades in prison, the pressure of being the target of such overwhelming power, was wrong and more than he could stand.  Not merely the pressure from the government itself, but its emanations as well.  Philip Greenspun tells of his talk with Swartz’s lawyers:

I asked the lawyers “Suppose that the government’s case is completely frivolous and Swartz is guaranteed to be acquitted. What would he expect to spend in legal fees to defend the case?” They didn’t want to reveal anything particular to Aaron’s case but said “Generally the minimum cost to defend a federal criminal lawsuit is $1.5 million.”

While a federal defense may well be worth $1.5 million, this is one of the wildest claims I’ve ever seen. Maybe 1% of defendants pay anything close to this amount, though it’s certainly to their benefit to be able to do everything possible to defend. The other 99% make do on a tenth, or a hundredth, and still fight.  Bennett wonders whether Swartz’s lawyers were milking him. Greenspun continues:

A daunting prospect for anyone. Apparently too daunting for a 26-year-old.

Absolutely daunting, as it is for the tens of thousands of others who were forced to endure the unwanted attention of the government.

So it wasn’t on the radar of the computer geeks until one of their own was the target? They weren’t aware of how daunting it was for all the others who came before Aaron Swartz, some younger than the 26-year-old, some with children whose lives would be ruined because of a parent’s stupidity, some who, like Swartz, did wrong but certainly nothing wrong enough to justify the government laying waste to their lives?  These cases, these lives, were the precursors to the harsh treatment of Aaron Swartz, and yet you didn’t know or care that any of this was happening because it didn’t touch someone you knew.

Now you know what we know. Will your anger and interest end when Aaron Swartz is buried, and you can go back to writing code and thinking cool ideas? If you want to honor his memory, perhaps you might want to put all those brilliant minds to use changing the system that drove Swartz to take his own life. It’s still here, and it’s still just as bad as it was in Swartz’s case. And it will continue to be, even as you move back to your more pleasant pursuits.

But you can no longer pretend to be surprised about what the government does to people. It happened to Aaron Swartz, and you hated it. And it will continue to happen, as it happened before Swartz was caught in its web. What now?

Update: MIT President L. Raphael Reif has  issued a statement regarding the death of Aaron Swartz, that includes Computer Science Professor Hal Abelson to “lead a thorough analysis of MIT’s involvement from the time that we first perceived unusual activity on our network in fall 2010 up to the present. I have asked that this analysis describe the options MIT had and the decisions MIT made, in order to understand and to learn from the actions MIT took.” 

That’s fine, though thought ahead of action, or in this case death, might have been more useful. “Better late than never” is particularly unsatisfying.

Update 2:  Anonymous  crashed the MIT computer network in protest of District of Massachusetts United States Attorney Carmen Ortiz’s overreaching in Aaron Swartz’s prosecution, lack of information freedom and the excessive sentences in computer crime cases.

While it’s understandable that those utterly unaware that this wasn’t the first instance of overreaching, or injustice from the myopic perspective, and that Carmen Ortiz may well have seriously overreached, but hardly more so than the government (meaning the DOJ and United States Attorneys across the country) has done in tens of thousand of other cases that didn’t involve someone well-known to the computer geek community, the sudden interest in the criminal justice system is astoundingly naive.

The “fight” isn’t about a single case, or a single criminal law, a single punishment regime or a single United States Attorney, and the fight didn’t begin yesterday and won’t finish tomorrow, after Ortiz collapses in fear of your awesomeness, and all the other prosecutors run and hide because a bunch of computer people called Ortiz mean names and Anonymous took out a network for a few hours. And then you can go back to playing on your X-box, satisfied that you’ve changed the world.

10 thoughts on “Aaron Swartz Post-Mortem: So Now You Know (Update x2)

  1. Dr. Sigmund Droid

    File this sad story as the expression of ancient Chinese military theorist and army general Sun Tzu’s philosophy of “Kill one, scare ten thousand” . . . Literally.

    I believe our government loves cases like these that, for them, have such a happy and meaningful ending. Gotta keep the wretched refuse and huddled masses in line, you know . . .

    Somewhere in Washington, D.C., prosecutors are toasting to, and basking in, their glory . . .

  2. Shaula

    > Not even his friends argue that what Swartz did wasn’t a technical violation of law.

    What I’m missing is what law Swartz technically violated. For example, Glen Greenwald writes in the Guardian (link omitted per your policy, but I’m happy to supply it): “He had every right to download the articles as an authorized JSTOR user.”

    Is Greenwald wrong (and Swartz did in fact break the law), or did Swartz not break the law?

    I’m not picking a fight. I’m asking in the hope that you know because I haven’t found a clear answer in what I’ve read about this so far.

    > So it wasn’t on the radar of the computer geeks until one of their own was the target?

    We’re back to the words of Martin Niemöller, aren’t we. Most people don’t seem to be aware of very much until “one of their own,” or at least someone they care about, is affected. I don’t think geeks are any more myopic than the rest of us in this regard. It’s one of our great collective failings.

  3. SHG

    He wasn’t an authorized user. He was able to gain access via the MIT authorization, which was no effort by MIT choice to have an open network available to the MIT community. But he was not an MIT student, a member of the MIT community or otherwise an authorized user. He slipped in because they intentionally left the door open.

  4. Andromedus

    The geek reaction is nothing to be proud of. Over at Hacker News, commenters are calling for the blood of the U.S. attorney who prosecuted Swartz. They have called for her to be voted out, started a White House petition to fire her (once they realized their mistake), and vowed to stop her future political aspirations. They claim to realize this is a systemic problem, but say that any attempt to fix the system has to start with naming and shaming this prosecutor to “send a message,” not realizing that you can’t publicly shame someone for doing what the public loves.

    And now it looks like the mob might have even picked the wrong prosecutor. The irony of their vengeful desires is so saddening.

  5. SHG

    Their anger at Ortiz is misplaced. Not that she isn’t deserving for what she’s done, but they still don’t appreciate that this isn’t a one-off persecution, but a system. The same system that was doing just fine before it touched their world.

  6. Ian

    Individuals make decisions. If deterrence is legal theory, then deterrence should be used by people outside the legal system when people inside the legal system make decisions. Ortiz has political ambitions, it is time to destroy those political ambitions as a way of changing how the system operates — so that the next overambitious DA thinks twice.

    A system cannot work if people will not do what it requires. We, including you, have tried to get them to act better by appealing to the better part of their nature. It hasn’t worked. Time for fear.

  7. Steven

    It seems they do understand. At least more than before. They have been affected personally in a way and they are more conscious. It hit home. They (the computer geeks) want to make it personally expensive to persecute, and to deter those who capitalize politically and professionally as a reward for such behavior. Maybe it’s a start. Maybe they are close to saying, effectively, that “I was only following orders” will not be an acceptable defense. (Though I have no information proving that this US Attorney was “only following orders”). And they are guided by principles that go beyond punishing persecutors.

  8. SHG

    While their consciousness has been raised, it remains unclear whether it involves awareness of the larger problem or its myopic. People are still focusing on Carmen Ortiz, or the particulars of the charges in this case. If that’s where the interest ends, then nothing is accomplished.

    And indeed, as you write about deterring those who capitalize politically and professionally for overreaching prosecutorial conduct, you fall into the same trap. The naive and uninitiated think this is about Carmen Ortiz’s efforts to enhance her political career. There may be an element of self-aggrandizement in here, but it’s puny compared to the bigger issues of overcriminalization, prosecutorial overreaching, fundamental fairness in the criminal justice system. It reduces a problem that has been growing for 50 years, touched tends of thousand of people, made America the largest incarcerator in the world and caused enormous harm to society, to a triviality.

    So has consciousness been raised? A bit, but not enough, and not the right way. In fact, a whole lot of geeks may have been manipulated by the misguided focus to think this is only about Aaron Swartz, and may be less enlightened for it.

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