Lessig on MIT, Neutrality and Aaron Swartz

by Henry on July 30, 2013

Larry Lessig here on MIT’s claim that it was ‘neutral’ with respect to the prosecution of Aaron Swartz.

“Neutrality” is one of those empty words that somehow has achieved sacred and context-free acceptance — like “transparency” … But there are obviously plenty of contexts in which to be “neutral” is simply to be wrong. … For example, this context: The point the report makes in criticizing the prosecutors is that they were at a minimum negligent in not recognizing that under MIT’s open access policies, Aaron’s access was likely not “unauthorized.” … But that criticism goes both ways — if indeed MIT recognized this, and didn’t explicitly say either privately or publicly that Aaron was likely not guilty of the crime charged, then that failure to speak can’t be defended by the concept of “neutrality.” … MIT was more than negligent: The issue was explicitly flagged for it, by a senior member of the MIT administration. As the report indicates, Joi Ito, in the summer of 2011, explicitly raised the point … MIT knew something here that at a minimum could have cut short a prosecution, and which, it turns out, could also have saved someone’s life. “Neutrality” does not justify failing to pick up the phone, and telling the prosecutor, “hey, in fact, his access was authorized.” Maybe it wouldn’t have mattered. Maybe the prosecutor would have stayed the course. But then that would have been (yet another) failure of the prosecution, not MIT’s.

{ 32 comments }

1

Shelley 07.30.13 at 9:58 pm

College administrators are rarely to be trusted.

That’s a universal.

2

Eszter Hargittai 07.31.13 at 12:06 pm

Larry makes important points. Thank you for posting this, Henry. JSTOR’s actions make this a trickier case for MIT than a situation in which there hadn’t been another organization involved as it seems it would be harder to dismiss that they couldn’t have done anything differently.

3

Barry 07.31.13 at 1:19 pm

I disagree; MIT could have made their opinions known, and could have talked with JSTOR. In the end MIT is exonerating themselves, as expected.

4

Omri 07.31.13 at 3:04 pm

According to the report, the prosecutors’ decision to go Inspecteur Javert on Aaron was in response to DemandProgress’s speaking out in his defense.

These prosecutors have career ambitions involving the Democratic Party, and getting called out by DemandProgress is a tad more important to them than getting called out by the MIT admins. Yet they decided to double down.

Not that MIT was right to be quiet, and the failure to hand evidence to both sides is deplorable. But once you hand a matter off to the state, your control over it is sharply diminished.

5

SWIAF 07.31.13 at 3:50 pm

the failure to hand evidence to both sides is deplorable.

We should be clear about what actually happened. According to the report (III.B.4), during the 9/14/11 meeting between Robert Swartz and the MIT Chancellor, Swartz complained that the defense couldn’t get any assistance from MIT including access to experts, documents, etc. But as the report notes:

At this point in time, Swartz’s defense counsel had not requested from MIT any documents or interviews, either informally or by subpoena. Also, at this point in the prosecution, the defense did not have the ability to issue a Rule 17(c) subpoena, whereas MIT had produced, and continued to produce, documents and information to the government pursuant to the pre-indictment grand jury subpoenas with which it had been served

What exactly was MIT supposed to have done? Ignored a grand jury subpoena? Answer questions that were never asked?

For example, this context: The point the report makes in criticizing the prosecutors is that they were at a minimum negligent in not recognizing that under MIT’s open access policies, Aaron’s access was likely not “unauthorized.”

There are two problems with Lessig’s complaint here:

First, Swartz’s own attorney did not think this would have made any difference (III.D.4):

Mr. Peters confirmed that the defense—similar to the prosecution—did not focus on the specific question of whether Mr. Swartz’s access to the MIT network was or was not authorized. The decision to not address this question directly was a result of the defense’s perception that the prosecution’s theory—as to why Aaron Swartz’s access to the network was unauthorized—was scattershot, ranging from Aaron Swartz’s changing his computer names to his opening of locked doors. Thus, a direct answer to this question, even if favorable to the defense, would be unlikely to change the prosecution’s determination to continue with the case.

Secondly, it doesn’t make any damn sense. If Scwartz had walked into the MIT libraries and announced his plan “Hi, I’m Aaron Scwartz, I’d like to copy JStor’s entire archive, where can I plug in?”, they would have told him no. They never would have authorized his usage. Because their agreement with JStor forbade such usage. The first time he connected to the network, he was authorized, but he quickly lost authorization as he kept violating network rules. That’s why he had to constantly change his network addresses, because MIT kept blocking him from their network. Because his behavior was unauthorized.

6

agm 07.31.13 at 6:19 pm

Lessig is exactly wrong in comparing this case and the case of David LaMacchia. He wants MIT to treat non-students with the privileges and protections the university extends to non-students. That is not, and ought not to be, a university’s interests – if you let a community treat a university as a public resource in all respects, members of that community at large end up abusing the university and gain a sense of entitlement towards facilities and resources that they are contributing nothing toward the maintenance of.

7

agm 07.31.13 at 6:20 pm

Sorry, should say “… the privileges and protections the university extends to students”.

8

Wax Banks 07.31.13 at 7:36 pm

“In the end MIT is exonerating themselves, as expected.”

nominal adults keep saying things like this. it’s irritating. the panel that produced this report isn’t ‘MIT,’ it’s hal abelson (whose bio includes the words ‘founding director of Creative Commons, Public Knowledge and the Free Software Foundation’; the man *knows*) and a small crew. this is the wrong place to look for catharsis, because catharsis is not owed, and anyone bellowing for self-flagellation from abelson’s panel has some screwed up priorities.

i’d note this, from MIT’s faq:

How did the MIT community respond to the prosecution of Aaron Swartz?
Before Aaron Swartz’s suicide, according to the report, the MIT community paid scant attention to the matter, other than during the period immediately following his arrest. Few students, faculty or alumni expressed concerns to the administration. The report finds that during the two years between Swartz’s arrest and his death, only two professors suggested to members of the MIT administration that the Institute should advocate on his behalf.

that’s an indictment of a hell of a lot more people than just the MIT community, by the way.

9

peggy 07.31.13 at 7:37 pm

MIT is not a “typical” university just trying to protect its students from overzealous drug warriors as agm would have. It sees itself as a international leader in technology and throws its weight around on subjects as various as global warming and US industrial policy. I speak as an alumna and former employee. Aaron Swartz was part of MIT’s natural constituency as a computer genius and deserved some consideration on that basis, as Professor Abelson acknowledged in the report.

10

MG 07.31.13 at 8:24 pm

MIT does not exist in a bubble. The students and staff have a right to expect to be safe within it’s confines, even as city life unfolds around it.

Someone trespassing in a university building and putting a device in a private room was a matter of concern for the campus security. Let’s say he wasn’t doing the noble thing but was just another creep with a spycam. Is that person covered under MIT’s “open campus”?

11

peggy 07.31.13 at 11:05 pm

MIT has had an open culture. MG would probably feel more protected at Harvard, which erects barriers to public seminars, even to visitors from Harvard affiliated institutions. ‘Let’s not let anyone else share’ is the unofficial Harvard motto which is quite different from MIT, an institution which thrives on open access.

A question for agm and MG; do the universities you are using as models allow any free access by, say, a working class autodidact? “Good Will Hunting” would been even more fantastical at Harvard.

12

leederick 07.31.13 at 11:37 pm

Why are people blaming the prosecution? Surely law enforcement – including MIT police – are the ones with an active responsibility to investigate crime and collect evidence.

13

SC 08.01.13 at 12:46 am

Taren’s response is also worth reading:
” . . . MIT’s lawyers gave prosecutors total access to witnesses and evidence, while refusing access to Aaron’s lawyers to the exact same witnesses and evidence. That’s not neutral. . .”
http://preview.tinyurl.com/lffcntl

MG: ” . . .Someone trespassing in a university building and putting a device in a private room was a matter of concern for the campus security. Let’s say he wasn’t doing the noble thing but was just another creep with a spycam . . . “

MG, since that’s your worst case scenario, remind me of the last time someone faced a Federal prosecution and years in jail for a spy cam. In the Rutgers spy cam case focused on Tyler Clementi’s suicide, Molly Wei was sentenced to 300 hours of community service and Dharun Ravi was sentenced to 30 days in jail (he served 20), 300 hours of community service, and a $10k fine. If MIT had taken the position that, no, we can’t let non-students break into security closets and we encourage the police to hand out misdemeanor tickets to people that do, fine. But that’s not what happened to Aaron.

14

ezra abrams 08.01.13 at 1:48 am

SWIAF @ 5
you are right; read page 76/77 of the report.
Another thing brought out is the harm AS did to the MIT community, the cost to MIT of outside counsel, the value of the JSTOR documents (in the millions) and the extra aordinary access AS defenders had – many many meetings with Chancellor and MIT chief counsel

I was an MIT employee, I’d be pissed as hell that I had to spend all my time dealing with this snotty kid who decided to break the rules, and then think he could walk away…I mean, that is a natural human reaction, no ?

Beyond this, why on earth is anyone who calls themselves “progressive” ok with stealing money from free lance writers ?
Cause thats what making JSTOR available would have done; I’d like to see the reaction of CT posters if someone started handing out for free stuff CT posters had a monetary stake in .can we actually do that experiment ?

15

Omri 08.01.13 at 3:51 am

I am a former sysadmin at MIT. The closet where he did this stuff was not far from my building.

“Why are people blaming the prosecution? Surely law enforcement – including MIT police – are the ones with an active responsibility to investigate crime and collect evidence.”

The chain went from MIT staff who noticed the network rack was being used, to the MIT police who caught Aaron, to the prosecutors. Staff and police just did standard operating procedure. What happens next is the prosecutors decide what charges to put forward. In hacking cases, prosecutors have huge amounts of leeway. Really, for this kid, an arrest and the threat of prosecution would have been enough. It was the prosecutors who decided they wanted his scalp.

And now that they’ve done it, I know if anything like this happens on my network, I would not want to call the police unless absoolutely necessary.

16

Barry 08.01.13 at 10:48 am

“And now that they’ve done it, I know if anything like this happens on my network, I would not want to call the police unless absolutely necessary.”

Thank you.

17

Barry 08.01.13 at 10:50 am

ezra abrams 08.01.13 at 1:48 a

” I was an MIT employee, I’d be pissed as hell that I had to spend all my time dealing with this snotty kid who decided to break the rules, and then think he could walk away…I mean, that is a natural human reaction, no ?”

BTW, then you shouldn’t be an MIT employee, unless the students there are much meeker than students elsewhere.

And Aaron did deserve some punishment, but a 30-year sentence makes as much sense as your boss dragging you out and flogging you, the next time that you screw up
(although he’d be justified, in terms of a natural human reaction to people who think that they can ‘get away’ with screwing up).

18

Barry 08.01.13 at 10:54 am

SC: “Taren’s response is also worth reading:
” . . . MIT’s lawyers gave prosecutors total access to witnesses and evidence, while refusing access to Aaron’s lawyers to the exact same witnesses and evidence. That’s not neutral. . .”
http://preview.tinyurl.com/lffcntl

If this is true then any claim by MIT to neutrality is a lie.

19

Barry 08.01.13 at 10:54 am

ME: “In the end MIT is exonerating themselves, as expected.”

Wax Banks : ” nominal adults keep saying things like this. “

No, adults who’ve seen what the world does, and knows that even allegedly good institutions – and people – turn out to only be allegedly good.

20

Henry Farrell 08.01.13 at 12:23 pm

Barry@3 – Eszter is saying just the opposite of what you say she is. Reading helps.

21

ezra abrams 08.01.13 at 4:40 pm

MIT investigating itself

1) iirc, MIT got in trouble with this during the Imanishi-Kari affair (a junior researcher accused a faculty of cheating); at that time, I think academics had much less experience in this sort of thing, at least in the biology field.

2) Survivorship bias: we don’t know how many Aaron like cases there are that don’t make headlines, because the case gets resolved quietly, without police, thru an internal investigation.
That is, we see the rare headline events; we don’t hear about (i assume) more common events where the “offender” gets a talking to and not much more

22

ezra abrams 08.01.13 at 4:43 pm

Barry @ 17
I think the 30 year thing is a red herring
Prosecutors prosecute people; it is what they are trained to do.
And, in our system, good or bad, if you reject the plea, they hammer you; maybe not a good system, but that is the way the game is played.

The arguments about AS not being able to survive a year in jail – I dunno; as we all know, they have those country club jails for white collar crimminals that are not that bad: people like Chuck Colson go in fat, and come out thin and fit.
AS supporters have argued that his commitment to civil society meant’ that a felony conviction with loss of franchise would be intolerable; i find htis silly – a guy with 1/20th AS talents couldn’t do more thru websites, etc, then thru his single vote ?
That his defenders offered such a silly argument suggests that they don’t have good arguments

23

Henry 08.01.13 at 4:54 pm

ezra – before going in accusing Aaron’s defenders of making ‘silly arguments’ you might want to avoid making them yourself. The ‘could do more thru websites etc’ argument might be slightly colorable, were it not that the prosecution had pressed for Aaron to be denied access to the Internet for a very lengthy period after release. The ‘country club jails’ claim wouldn’t be quite as fatuous had Aaron not had a serious medical condition, which meant that he would have had to have served any term in a prison with appropriate facilities – the only such prisons in the MA system being high security prisons with all that entails. You will appreciate, I hope, that when a good friend of mine has been driven to suicide, I don’t especially appreciate drive-by bloviation from Internet pontificators who are self-evidently too lazy to inquire after the facts, but all too eager to share their ill-informed opinions.

24

Substance McGravitas 08.01.13 at 5:34 pm

Ezra’s explosion has me wondering if there’s a JSTOR list of best-paid authors and what they make.

25

Barry 08.01.13 at 5:53 pm

ezra abrams 08.01.13 at 4:40 pm

” MIT investigating itself

1) iirc, MIT got in trouble with this during the Imanishi-Kari affair (a junior researcher accused a faculty of cheating); at that time, I think academics had much less experience in this sort of thing, at least in the biology field.”

You mean academic fraud, plagiarism faking results, blaming other (especially subordinates and grad students/post docs)? That didn’t occur at MIT before the 1980′s? Talk about a golden age.

” 2) Survivorship bias: we don’t know how many Aaron like cases there are that don’t make headlines, because the case gets resolved quietly, without police, thru an internal investigation.
That is, we see the rare headline events; we don’t hear about (i assume) more common events where the “offender” gets a talking to and not much more”

‘Your honor, there’ve been hundreds of times when I got into an argument and didn’t hit the guy with my beer mug – don’t I deserve credit for that?’

26

Barry 08.01.13 at 5:53 pm

Henry Farrell 08.01.13 at 12:23 pm

” Barry@3 – Eszter is saying just the opposite of what you say she is. Reading helps.”

Actually, it didn’t for me (I just re-read it). Honestly – what is she saying?

27

Tom Hurka 08.02.13 at 2:23 am

Henry @ 20: Writing helps too. As Barry says, Eszter’s post isn’t exactly pellucid.

28

adam.smith 08.02.13 at 3:13 am

Ezter’s “couldn’t have done something different” should read “could have done something different”
double negative indeed confusing there. So what she’s saying is that give JSTOR’s action, MIT’s excuse sounds flimsy.

29

js. 08.02.13 at 3:29 am

as @28:

I think that is the right reading, but the “couldn’t have…” construction is the right one. Because “a situation in which there hadn’t been another organization involved as it seems it would be harder to dismiss that they couldn’t have done anything differently” = Given that another organization was involved, it’s easier to dismiss that they couldn’t have etc.

30

agm 08.02.13 at 9:35 am

Sorry, been working so haven’t been able to respond to peggy’s question until now.

I have direct experience as a student at two universities, one a podunk state U and one a research institution. The grad school institution has an international reach somewhat smaller than MIT’s and is not a place unfamiliar with being engaged in the local community in odd, exciting, and/or difficult ways due to being in the middle of a much larger urban area. Both allowed general public access to journals from workstations in the library. Some databases were restricted to members of the university community only as a part of the license agreement providing access to those databases, with university log-in credentials used to verify access rights.

And that brings up how MIT defines its community, and what it does to protect that community. There are a lot of people who are part of a university community who are not students and who do not get a paycheck from the school. However, these people generally don’t horribly abuse the university’s resources, which is an accurate definition of what Swartz did.

It would seem to me that Swartz declared himself outside the MIT community by openly abusing its resources, repeatedly and intrepidly, to the point that the community lost access to those resources. I would not expect the university to go rushing to his defense. However, nothing I’ve read said anyone at MIT wanted his head on a pike, so yes, they maintained a satisfactory position of neutrality.

As with asking someone on a date, if you don’t ask, the person cannot say yes. To the extent that the report is accurate, if Swartz’s defense team didn’t ask for the documentation, that is no skin off MIT’s back.

31

SC 08.03.13 at 6:40 am

EFF’s Cindy Cohn weighs in with a fairly detailed and highly critical response to Abelson’s report on MIT’s role in Aaron’s case:

” . . . based on the report itself, we don’t think MIT was actually even “neutral,” by any reasonable definition of the word. Apparently MIT assisted the government from the very beginning — offering documents to the prosecution before being subpoenaed and allowing multiple interviews of MIT personnel, including without having counsel present. It did nothing similar for the defense, which it didn’t even seriously talk to until June, 2011, five months after Aaron’s arrest and then shined on for months at a time thereafter….”

” . . .While Aaron’s prosecution is certainly not MIT’s fault, and neither is his death, MIT should be held accountable — indeed, it should hold itself to account — for its failure to live up to its own ideals. Aside from its failure to help Aaron, MIT’s actions in helping the government prosecute Aaron are shameful, and betray the institution’s commitment to technologists. . . “

https://www.eff.org/deeplinks/2013/07/mit-aarons-swartz-case-not-neutral-not-leading-not-standing-technologists

32

Barry 08.03.13 at 1:38 pm

Gee, it looks like my original comment about the report being a whitewash has some backing….

Comments on this entry are closed.