Commentary: I spent much of Saturday trying to reconcile two very different approaches to justice meted out by the Obama Administration.
The first is old (mid-December) news: British bank HSBC launders money for at least a decade and is fined four weeks earnings. I learned about it Friday from The Daily Show.
How can anyone other than a banking executive look at this action on the part of the U.S. government and say, “There is justice here; this is fair and reasonable.”
They can’t. Because it’s not.
The other case is about Aaron Swartz, a talented and extraordinary young man, a technologist and activist. At age 14, he helped develop RSS, the technology that underpins the web’s information subscription system.
Cory Doctorow called him “a full-time, uncompromising, reckless and delightful shit-disturber.”
At age 26, he killed himself this weekend.
In its obituary, the NY Times notes his sense of public good, reporting that in 2008 he joined forces with Carl Malamud, the founder of public.resource.org, to make legal records freely accessible. Aaron legally obtained about 20 million pages of documents from PACER (Public Access to Court Electronic Records), the repository for federal judicial documents.
The government shut down the free library program, and Mr. Malamud feared that legal trouble might follow even though he felt they had violated no laws. As he recalled in a newspaper account, “I immediately saw the potential for overreaction by the courts.” He recalled telling Mr. Swartz: “You need to talk to a lawyer. I need to talk to a lawyer.”
Mr. Swartz recalled in a 2009 interview, “I had this vision of the feds crashing down the door, taking everything away.” He said he locked the deadbolt on his door, lay down on the bed for a while and then called his mother.
The federal government investigated but did not prosecute.
Also in 2008, Aaron issued a Guerrilla Open Access Manifesto, calling for scholarly work to be released online in the “grand tradition of civil disobedience.” Research demonstrates that openly accessible publications are cited by others more often than research blocked by digital lock-and-key. This spread of knowledge is good for society as a whole.
Yet the DOJ, in the person of Carmen M. Ortiz, U.S. Attorney for the District of Massachusetts, indicted Aaron, charging him with stealing 4 million documents from MIT and JSTOR.
If convicted, Aaron faced up to 35 years in prison and $1 million in fines.
For a first offense, a victimless crime where more than half of the information was in the public domain and where the “stolen property” had been returned. Where there was no harm and no theft according to one expert witness, only a Minority Report-like “pre-crime” presumption.
His expert witness clearly articulates the weakness of the DOJ case.
I know a criminal hack when I see it, and Aaron’s downloading of journal articles from an unlocked closet is not an offense worth 35 years in jail.
At the time of Aaron’s actions, the JSTOR website allowed an unlimited number of downloads by anybody on MIT’s 18.x Class-A network.
Aaron Swartz … was an intelligent young man who found a loophole that would allow him to download a lot of documents quickly. This loophole was created intentionally by MIT and JSTOR, and was codified contractually in the piles of paperwork turned over during discovery.
If I had taken the stand as planned and had been asked by the prosecutor whether Aaron’s actions were “wrong”, I would probably have replied that what Aaron did would better be described as “inconsiderate”. In the same way it is inconsiderate to write a check at the supermarket while a dozen people queue up behind you or to check out every book at the library needed for a History 101 paper. It is inconsiderate to download lots of files on shared wifi or to spider Wikipedia too quickly, but none of these actions should lead to a young person being hounded for years and haunted by the possibility of a 35 year sentence.
You have to ask yourself: who in the Department of Justice did Aaron embarrass so badly back in 2008? Or which academic journal publisher has an “in” with the U.S. government?
Let me close with this observation from lawyer Lawrence Lessig:
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.
He was brilliant, and funny. A kid genius. A soul, a conscience, the source of a question I have asked myself a million times: What would Aaron think? That person is gone today, driven to the edge by what a decent society would only call bullying. 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.
How can anyone other than a publishing executive look at this action on the part of the U.S. government and say “that’s fair and reasonable.”
They can’t. Because it’s not.
The mission of the Department of Justice is, in part, “to seek just punishment for those guilty of unlawful behavior, and to ensure fair and impartial administration of justice for all Americans.”
They failed on both counts here.
Our public legal system — the one that is supposed to be looking out for us, the citizens of the United States — kowtowed to a British corporation while grinding its heel into a 26-year-old idealist.
We should be ashamed.
We live in a democracy. Tell your friends but just as importantly, tell your Congressmen and our President.
The DOJ was wrong, not once, but twice.
Only we can make sure it doesn’t happen again.
First published at The Moderate Voice; edited for typo.
Update: 9:45 pm Sunday
Anonymous hacks MIT.edu (the site was down earlier tonight), calls for reform of computer crime law as well as copyright and intellectual property law, “returning it to the proper principles of common good to the many, rather than private gain to the few.”
PDF of the entire page: