The Aaron Swartz Legacy: Do Something

Among the many issues raised following the suicide of hacker activist Aaron Swartz was the failure of MIT to take a stand, instead merely being compliant with the government rather than proactive about the prosecution.  MIT could have told the government to get lost. It didn’t. It did as it was told.

Since then, another prosecution has dirtied the Institution, this time involving some undergrads who created a program called “Tidbit” for the Node Knockout hackathon. From the Tech:

Tidbit is intended to allow websites to make money without ads by running bitcoin-mining code on users’ browsers. The creators of Tidbit, [Jeremy] Rubin, Kevin C. King ’15, Oliver R. Song ’14, and Carolyn Zhang ’14, won a prize for having the most innovative project in November at the Node Knockout hackathon, where they built a prototype.

Then, in December, Rubin was contacted by the New Jersey attorney general’s office, which asked for, among other things, a list of all websites “affected by the Bitcoin code,” copies of “all contracts and/or agreements” with customers, “[a]ll documents and correspondence concerning all breaches and/or unauthorized access to computers by you,” and “[a]ll codes, source codes, control logs, and installation logs concerning the Bitcoin code.”

So some kids created a program as part of their college education and it offended somebody in New Jersey, who subpoenaed a sophomore. And what did MIT do about protecting their student?

When Rubin approached MIT’s lawyers after receiving the subpoena, they said they could not represent Rubin or Tidbit in court, but one of them advised Rubin to seek help from the Electronic Frontier Foundation, which advocates for digital rights. EFF agreed to help Rubin pro bono, and they have moved to quash the subpoena.

Thankfully, a group like the Electronic Frontier Foundation exists and is both willing and capable of standing up for Rubin pro bono.  That said, it hardly removes MIT from the mix any more than it did for Swartz. This was their student. This was a school project. And this, like Swartz, put him in jeopardy.

While it may be, though it’s hardly a foregone conclusion, that MIT couldn’t take the lead in defending their student, the rhetorical response was supportive:

“MIT stands ready to support these students in their defense against the legal actions against them,” a statement from MIT on Thursday read. “We advised the students that it was in their best interest to secure independent legal advice. We are eager to work with them and their counsel in a vigorous defense of this matter.”

Sweet, but for the fact that “Rubin wrote in an email that MIT’s lawyers ‘have not been involved since our initial interaction.'”  Words of support aren’t exactly quite as helpful as, well, actual support, and there was none of that.

To his enormous credit, Professor Abelson didn’t shrug off this new situation:

MIT’s response was “‘Hey, I know a good lawyer,’” Abelson told The Tech. “MIT should have said, ‘Hey, this is MIT business because it is harmful to the institution.’”

Instead, Abelson, together with others, wrote an “open letter” to MIT President L. Rafael Reif:

The letter, which at press time had been signed by more than 500 MIT affiliates, was written by Professor Hal Abelson PhD ’73; Ethan Zuckerman, director of the MIT Center for Civic Media; and Nathan Matias G, a graduate student at the Media Lab. They wrote that MIT has an institutional interest in the case and should tell New Jersey to withdraw the subpoena, which they called “an affront to our academic freedom” and said will have “a chilling effect on MIT teaching and research.”

While lawyers may view this response as still a bit too tepid for their tastes, an open challenge by a highly regarded and well-trusted professor carried substantial weight within the academic community. Abelson, having shepherded the investigation into MIT’s failure to take a stand in the Swartz case, used the capital he accumulated to push.

The Tech article has since been updated to note a response by Reif:

Update, Feb. 16: President L. Rafael Reif announced his intention to create a “resource for independent legal advice” to support “student inventors and entrepreneurs” in an email Saturday evening, two days after Professor Hal Abelson PhD ’73, Ethan Zuckerman, and Nathan Matias G began seeking signatures for their open letter. Reif also said that Tidbit’s student creators had the “full and enthusiastic support of MIT” and that MIT would “remain in close coordination with the students and the EFF to offer assistance in the legal proceedings.”

What is meant by “full and enthusiastic support” remains to be seen. Will it be more rhetoric, a tummy rub or the full legal, material and persuasive support of the Institution, including its direct involvement as amicus in challenging this attack on its students for doing what they were taught to do by MIT, remains to be seen.

This isn’t to suggest that the EFF isn’t up to the job. It is, and will no doubt vigorously defend Rubin against the subpoena.  But the EFF can’t do everything for everyone, and can’t be expected to serve as a substitute, a crutch, for MIT or any educational institution.

At some point, higher education needs to come to grips with the fact that they are involved, whether they like it or not, in the legal system. Their effort to demur is just as much of a choice as actually taking a stand, whether for or against, attacks on their pedagogy and students.  It’s just the wrong choice.

That MIT failed Aaron Swartz will forever be a black mark on the Institution.  At least it should serve as a learning opportunity.  From MIT’s response to the subpoena of Jeremy Rubin, it doesn’t appear that they’ve learned anything.  Whether Abelson’s open letter brings about a real grasp of its involvement, and duty, to stand up and matter, remains to be seen.

12 thoughts on “The Aaron Swartz Legacy: Do Something

  1. Byron Warnken

    Thanks for putting this out there in so complete a way. Yes, I understand you neither seek, nor want my praise, but I offer it nonetheless. This is an important issue.

    The underlying application may or may not be appropriate. I imagine it’s completely acceptable with proper notice of the use of the computing power. That might mean TOS, it might mean something more obvious. Best I can tell, Tidbit is not being used on many sites, if any. It will be interesting to see if this publicity will result in traction for the service.

    A comment from “Jim Gust ’75” on the Tech… “I will suspend my contributions to MIT unless they heed Professor Abelson’s call for a much more robust response (I think I’m a member of the 1861 club or something). The spectacle of another rogue Attorney General trampling around MIT, with MIT meekly telling a student “get your own lawyer,” is revolting. That is not “support.” That is “cover your ass.”

    1. SHG Post author

      You are quite right that the question has nothing to do with the merit of the subpoena per se, but the institutional virtue of a school in standing up for its position, its students, academic freedom, or turning its back and walking away.

      And you could have made the point without any mention of praise. This isn’t about me, but the issue.

  2. John Hawkinson

    SHG, don’t you think you should mention you’re an MIT parent?

    I (MIT alum, MIT critic) definitely support MIT taking some action here, but I also wonder if the scenario wasn’t this:
    * Students walk into General Counsel’s office and say, “We got this subpoena, yadda yadda, can you help us?”
    * General Counsel says, “Gosh. This is a tricky IP freedom issue. The absolute best representation would be if you got the EFF to represent you, those guys really know their shit. Let me call up a staff attorney there and see if they’re willing to take your case. If they won’t, come back and we’ll see if we can allocate the resources to hire some $Biglaw for you.”

    Would that be objectionable? Do we know that is not what happened?

    BTW, this morning’s Boston Globe carried a small update, at

    Basically it quotes the MIT administration saying they want to move on this quickly, and the advocates (Abelson) wanting a system by September. And also Abelson characterizing MIT’s response to his advocacy as “MIT quick.”

    1. SHG Post author

      Whether I’m an MIT parent or not has no bearing on what MIT should or shouldn’t do. It might be a reason for me to pay attention to the Tech, but I have no greater or lesser insight as a parent than anyone else. My interest here is in the proper representation of people who are targets of governmental attack.

      Your focus on what might have been said between MIT counsel and Rubin is disturbing. Regardless of what was said, this was a student who was targeted by a prosecutor for his work at MIT. Whether MIT defends him directly or takes a firm stance to protect its student as an Institution, it has a role to play here. We can make up a million pretend conversations, but none of them cover the fact that MIT passed the buck to EFF, walked away and did nothing further. That is the point. They did nothing further. If that’s untrue, then it might change the equation, but there is no evidence to suggest otherwise.

      And finally, as for Abelson’s characterizing MIT’s response as “quick,” that’s great. Now, it needs to be substantive as well as quick. Kind words of support are deeply heart-warming, but don’t do much to affect the jeopardy facing Rubin. It’s a fine first step, but only a first step.

      It’s not surprising that Abelson may not have as firm an appreciation of the jeopardy the student is facing, but I do. As much as I appreciate Abelson, I remain a lawyer and can’t shut my eyes to the reality of what remains to be done. And MIT has a substantive role to play, along with the EFF, to protect its student.

      Edit: And if you’re unfamiliar with what happens when things go wrong with a subpoena, check Lavabit. It was a disaster for Ladar Levison, and should never happen again.

      1. Fubar

        SHG wrote:

        Whether MIT defends him directly or takes a firm stance to protect its student as an Institution, it has a role to play here.

        That is the nut of the matter.

        The Globe article is not so encouraging to me. I quote, and my emphasis is upon the weakness of MIT’s apparent present position on providing legal resources:

        “Beyond this specific case, I believe we should provide our student inventors and entrepreneurs with a resource for independent legal advice, singularly devoted to their interests and rights,” Reif wrote.

        Students developing technology at MIT need far more than mere advice. When the subpoenas hit the fan, they need lawyers, guns and money. That means, at very least, motions to quash, from the brightest and best that the Institute can muster.

  3. Fubar

    Byron Warnken wrote:

    The underlying application may or may not be appropriate. I imagine it’s completely acceptable with proper notice of the use of the computing power. That might mean TOS, it might mean something more obvious.

    I know nothing of Mr. Rubin’s application, but as a general principle I think that proper full notice and disclosure to users, of its use of the host’s CPU and connectivity would make it legally acceptable.

    I also agree with SHG about MIT’s execrable actions w.r.t. Aaron Swartz. I am an alumni. I have voiced at The Tech‘s article comments my support both for Mr. Gust’s assessment MIT’s handling of present case, and for establishment of a fund within the Institute’s Alumni Association to support the most vigorous legal defense possible against crusading government officials, for students developing technologies.

    I can only hope that alumni will muster sufficient persuasion to right the past and present wrongs.

  4. John Barleycorn

    WTF? The MIT administration showing off their finely engineered press releases while shaking their pompoms is not enough for you?

    What is it going to take? Having the dean dress up as a beaver flanked by a few dozen menacing looking lawyers dressed in red and gray suits every time a few of their students stir shit up?

    Next thing you know MIT would have to give the boot to the NSA and the CIA recruiting on campus.

    This might lead to suggestions of MIT starting up some well funded fellowship program addressing the dangerous ramifications of our three branches of government not getting their heads around technology and fundamental constitutional rights.

    But this might fuck with all that orderly money to be made out there. So, perhaps it is best to leave the arguing to outside groups like EFF and let them deal with all these isolated incidents, just incase it gets messy.

    Don’t you be loosing any sleep about all them young beavers swimming around campus diabolically plotting “crazy” new engineering schemes to change the world. MIT knows what’s best for them.

    Relax, professors are talking institutional interests and the administration is talking full and enthusiastic support. That ought to be just about the right mix to keep them young beavers studying and at the most, perhaps adding another verse to the school song.

    We certainly wouldn’t want them to start taking these isolated incidents and engineering them into some defining political moment of their generation that fucks with orderly tranquility and their ability to pass a background check and get a j o b before this all sorts itself out now would we?

  5. Robert David Graham

    Nobody should look to EFF for defense. They aren’t a dispassionate counsel who serves the interests of their clients — they pursue their own interests. I’ve been involved in multiple cases where the EFF made things worse, not better, for the individual. For example, in the Michael Lynn Ciscogate affair, the EFF encouraged Lynn to divulge trade secrets, helping cause the controversy, and a lot of publicity for the EFF. Instead of sticking with him, they (largely) left it up to Lynn to hire his own lawyers for $$$ to clean up afterward.

    Secondly, their passion for certain areas of the law does not guarantee competency. They are academics more than practitioners. They probably have some lawyers who are super competent in specific areas, but one shouldn’t assume that they are competent in all areas.

    1. SHG Post author

      I’ve had issues with EFF in the past as well, but Hanni Fakhoury (who is representing Rubin) has the chops and, for better or worse, the EFF stepped up to the plate when MIT didn’t. It surely beats how Ladar Levison tried to handle the Lavabit situation on his own.

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