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.