Lawrence Lessig, the leader of the copyleftist movement and founder of Creative Commons, the movement to devalue content on line and decouple it from commerce, blames the Massachusetts prosecutors seeking to establish the rule of law over the unruly Internet as the "bullies" reponsible for the death of open source cultist Aaron Swartz.
As expected, the people who call themselves "the Internet" -- the motley crew of Anonymous anarchist hackers, professors of computer science and linguistics, and various technocommunists and cyber-libertarians, are waging a ferocious campaign to discredit, defame and destroy the prosecutors in this case and make them out to be monsters merely for doing their job.
This furious storm of protest against the prosecutors disguises the fact that those most to blame for Swartz's depression and suicide are his "friends" in the copyleftist movement who didn't really fully back him, and who in any event cunningly incited and sent this kid to his doom in the first place on the destructive utopian errand of "liberating" information online.
LESSIG, COPYLEFTISTS ARE COWARDS WITHOUT COURAGE OF CONVICTIONS
So my case against Lessig, Cory Doctorow, John Perry Barlow, Danah Boyd and others is twofold: a) they don't have the courage of their convictions to support criminal hacking to the end if they really believe "information wants to be free" and hacking isn't a crime -- they value their credentialed and highly-paid positions too much and prefer coyly pretending their cause is more mild b) their cause is immoral, wrong, and criminal and the acts that they cunningly incite others to do are in fact rightly prosecuted; they should be called out resoundingly on their sly edge-casing and posturing. They are cowards; they are also immoral thugs.
It's at a time like this that people who care about human rights, civil society, and the rule of law, and don't want to see America turned into an authoritarian country run by Internet thugs no different than the Bolsheviks have to stand up and say: no, that's not true, the prosecutors are doing their jobs; the hackers are the criminals. But almost no one is doing this -- if anything, influential public figures and liberal media are claiming the opposite.
LESSIG IS TO BLAME FOR SWARTZ'S DEATH
Using his bully pulpit of cult-like popularity and his credentialed positions as a Harvard professor and even an Obama campaign advisor, Lessig is claiming in a blog that the prosecutors are to blame for Swartz's death.
I find this absolutely appalling, and I contend that it is really Lessig who is principly to blame for this young man's suicide -- after, of course, Swartz himself. I'll be the first to say that the individual bears responsibility for his own demise in a suicide, but in a context where everyone is discussing the contributing factors and blaming the court case on Swartz's sense of despair and depression, I will point out that a) it's Swartz's big Internet freedom friends who left him in a lurch and b) they were all wrong about this anyway and it was a crime and Swartz should have been willing to do the time if he were willing to do the crime. Evidently, he was demoralized not only by his friends' lack of outright and solid support, but the prospect of getting even some time in jail and a record as a felon; he came from a good family.
LESSIG SAID SWARTZ "CROSSED A LINE" BUT WOULDN'T CROSS IT HIMSELF
In an extraordinary cunning and crafty statement, Lessig distracts from his own complicity in an entirely diabolical way. Lessig was a mentor for Swartz since he was 14, as we can see from The Awl. Yet when Swartz was arrested, Lessig protected his own ass and his credentialed position by saying that Swartz "crossed a line" -- he knew that with this big a heist -- 4 million documents -- combined with breaking and entry, use of a false ID and attempt to hide his facial recognition to cameras, and disabling of the network -- all the charges we can see in the indictment -- he was going very deep into "hacktivism" that in fact even Lessig would have to concede as criminality.
Or could he? This is what is so outrageously diabolical about Lessig's posturing on this tragedy: on the one hand, he claims Swartz crossed the line, and he could not serve as his lawyer or consultant because of a conflict of interest, or so he thought:
Since his arrest in January, 2011, I have known more about the events that began this spiral than I have wanted to know. Aaron consulted me as a friend and lawyer. He shared with me what went down and why, and I worked with him to get help. When my obligations to Harvard created a conflict that made it impossible for me to continue as a lawyer, I continued as a friend. Not a good enough friend, no doubt, but nothing was going to draw that friendship into doubt.
Obligations, or ass-saving? If Lessig were consistent with his principles, if he believed that in fact Swartz was prosecuted wrongly, if he really believed that the prosecutors were "bullies," he should have had the courage of his convictions. He didn't -- just as the others posturing around the case like Danah Boyd and Cory Doctorow. In fact, he didn't campaign for his case but merely thought he could get away with that sort of cunning semblance of distance and a wink and a nod.
All those lefty professors now "defiantly" passing around free PDFs of their turgid and boring scholarly articles are worthless to the cause -- if they really believe Swartz wasn't wrong, they should all be hacking their university servers, you know? But they won't do that not only because quite a few of them still think that is wrong, but because those that don't still want to hang on to their jobs.
It truly is morally revolting. This young hacker went the distance on Lessig's actual views -- the views that he is coy about really expressing when he claims Creative Commons is merely a way to share and gain attribution for those who enjoy collectivism of culture. Lessig in fact it goes further as I've noted to destroy digital commodities on line as a very concept by decoupling digital creations from commerce deliberately - and Swartz went further still in a massive hack as "propaganda of the deed".
Yet here is what this cunning and duplicitous manipulator Lessig has to say about the case, although he is a lawyer and could read the indictment:
Here is where we need a better sense of justice, and shame. For the outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor’s behavior. From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed.
Lessig is the one who needs to feel the shame and sting of guilt. The indictment doesn't say the files were "worth millions"; it says they were over $5,000. Another reference to "$50,000" is only to what a university might have to pay for a subscription to JSTOR. I couldn't find any reference to any prosecutor or person of authority claiming that "millions of dollars of damage", but it's hard to find old stories on this with the crush of new links pushing Google results down. Even if there were some prosecutor who said this at the time, so what? The valuation would have had a very careful scrutiny at trial, and the fact that JSTOR itself dropped charges and that MIT's actual damages were minimal and finite in its temporary loss of the normal use of the system and the cleaning up of the hack, it's unlikely that anything remotely involving "millions" would have stood up in court.
[Note: the original press release cited "35 years" but in fact as the lawyer admitted later, there was a plea bargain offer of only 6 months in jail.]
THE RULE OF LAW AND JUSTICE
What most infuriates me about the crusade against SOPA -- and now this crusade to combat any value of any digital commodity online -- is that the anarchists and outright terrorists running this campaign refuse to concede that due process in courts does take place and will take place in these cases, and that the absuridites and excesses and scarifying tales they tell will not happen. SOPA was not going to "censor the Internet" and take down teenagers' Tumblr blogs; it was going to prosecute people like Kim Dotcom who make millions from piracy. That is all. Legal defense applies; the jury system applies; the judge's ruling applies; the prosecution is only one part of the story. The indictment is not the sentence; this is not Russia or China. Of course, it is part of the anarchists' strategy always to pursue the Leninist "the worse the better," and make it seem as if there is some horrid draconian state willing to eradicate everyone's fun and study and communication because the true situation -- that lawyers, judges, and juries weigh the evidence and are generally fair and just -- doesn't fit with the worldview that mandates the big smash of everything.
And as Lessing himself admits elsewhere, an indictment is not a sentence; it's merely the charges. Just because in theory these charges have punishments attached to them that might add up to 30 years -- or even 50 as some like the irresponsible Declan McCunnough of CNET claim -- doesn't mean that there is any remote case at all that the defendant will actually serve those terms. First, the state would have to prove their case on all those charges -- that would not likely happen, and they would be left with only some of them. Second, they would not necessarily prosecute "to the fullest extent of the law" and the judge may not then issue the maximum sentence. Given that there doesn't seem to be evidence that Swartz would financially benefit from this attack on MIT's system, that would factor in the sentencing. And of course, various witnesses for the defense would have been summoned, there would be a guarantee media circus (as there is now) with hysterially emotional kids on the Interner and their adult enablers in universities screaming at the top of their lungs, with the absolute best legal help and support money could buy and all the rest.
WHY DIDN'T EFF DEFEND SWARTZ?
Except...I do have to wonder why in fact the copyleftist front organizations like Electronic Frontier Foundation in fact didn't campaign for Swartz specifically as a case -- they don't have an amicus brief in his case on their website that I can find. Sure, now that he's dead, they're saying "let's campaign to end draconian computer law" but that's different. They did not make Swartz a poster boy for their cause -- because like Lessig they also knew that he had "crossed a line" and in fact didn't make for a good poster boy (as I will examine in another post); indeed this is the anguished discussion his fans are having.
Hey, why couldn't Swartz appeal only for legal defense money, not only for a defense war chest but for a possible huge fine?
There's a Bradley Manning defense fund and defense movement, but these professors and fancy people working at Microsoft like Danah Boyd and Lawrence Lessig at Harvard couldn't help raise money? Why? What's up?
PROSECUTORS DOING THEIR JOB
The chief prosecutor in the case is Stephen Heymann -- and not surprisingly Anonymous is now harassing him by posting his private information online and siccing persecutors at him. Swartz's lawyer claims -- on the basis of no evidence we can see -- that Heymann was "bullying" Swartz and "making an example of him". All of this is despicable.
Swartz's lawyer claims that Heymann wanted to make an example of his client:
Heymann was looking for "some juicy looking computer crime cases and Aaron's case, sadly for Aaron, fit the bill," Peters said. Heymann, Peters believes, thought the Swartz case "was going to receive press and he was going to be a tough guy and read his name in the newspaper."
Once again, I'll point out that if you don't want one case after another of young computer hackers to be made examples of, you should support SOPA/PIPA or the equivalent legislation that establishes the rule of law, defining when prosecution is appropriate and what use cases do not fit the definition. It's precisely the absence of a law that creates this situation of "lesson-teaching" -- although I believe that notion is wildly hyped in any event and these prosecutors are just upholding the law.
A frustrating thing about this discussion is that because the defendant has committed suicide, the prosecution's case automatically disappears (the charges are dismissed as a technicality, not dismissed because the defendant was found not guilt). And prosecutors are not required to say what they were planning or what they might have done. That's a pity, because if they could speak out -- or if the media were more ethical and reported this story with less obvious bias -- we could find out what their goals were and understanding of this case and it might go a very long way to dissipating this absolutely crazy hysteria about the "50 years" and the "bullying".
Like Manning's lawyer, who let his client rot in pre-trial detention and only let Anonymous thugs do the talking on the Internet in order to get the Allen rule and time off the sentence, Swartz's lawyer seemed to realize he had a guilty client that would have to face the music and probably figured that only stalling with various tactics and trying to bargain for lesser terms would work rather than challenging the substance of the charges. He never really did that.
Yes, we know JSTOR itself dropped their charges and even recently released 4 million documents, under pressure from the copyleftist community. But MIT pursued the case, and from all indications, legitimately -- because Swartz's hack was deliberate, demonstrative, large-scale, and grand-standing "propaganda of the deed". It was an attack not just on MIT, but like the PACER attack, an attack on the very concept of any entity anywhere being able to decide how they wanted to treat their own property online -- whether they would be aggressively collectivized and nationalized by the anarchic mob of Anonymous and friends, or whether they could decide what kind of walled garden or pay wall they wanted on their communities -- in other words, whether they would have liberty, or whether they would have technocommunism.
MIT GOES INTO GUILT MODE; APPOINTS HORRIBLY BIASED INVESTIGATOR
What's particularly disturbing about the way this saga is unfolding is MIT's guilty response. Naturally an expression of regret and sadness and condolences to the family is in order.
But instead of a straight-forward and normal response consistent with the rule of law, that they pursued this prosecution in good faith because criminal acts were indeed involved, they throw the whole thing open to question:
"I want to express very clearly that I and all of us at MIT are extremely saddened by the death of this promising young man who touched the lives of so many. It pains me to think that MIT played any role in a series of events that have ended in tragedy," MIT president L. Rafael Reif said in the statement. "Now is a time for everyone involved to reflect on their actions, and that includes all of us at MIT."
Appallingly, instead of appointing a neutral panel to investigate this matter, they put the investigation into the hands of only one professor, and one who is a notorious apologist for the free software movement, who, as Wikipedia tells us, is "a Professor of Electrical Engineering and Computer Science at MIT, a fellow of the IEEE, and is a founding director of both Creative Commons and the Free Software Foundation". Good God, what could be more outrageously biased in favour of computer hacking and exoneration of Aaron Swartz?! It's truly an outrage.
SWARTZ'S FAMILY BLAMES PROSECUTORS
The most emotionally-charged statement in this case naturally comes from Swartz's family and partner. Understandably -- but wrongly -- they speak of Swartz's crusade against "Internet censorship" -- SOPA would not have chilled free speech -- that's only the hysterical Google-fueled version of the story, as it involved prosecution of piracy for commercial gain -- and frankly, prosecution of the kind of terroristic "propaganda of the deed" that Swartz perpetrated to smash the rule of law on the Internet. They see it as "bullying":
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.
It's hard to imagine that there is "intimidation" in a case where the defendant is...allowed to go free, and allowed to speak and gather defense for himself all over the place for more than a year (although as I've pointed out above, he didn't have much concrete backing given that most of his "friends" seemed to think he was really guilt, but that the system should still be merciful just because he was smart and cool and founded Reddit.)
It's hard to see any "prosecutorial overreach" in pursuit of compliance with the law. It's especially disenguous here because the lawyer himself -- instead of conceding that his defense would have been at least partially successful -- is misleading characterizing the prosecution as literally going after "30 years". Or "50" if you believe Declan McCullough, the hysteric at CNET who pretends he's for copyright supposedly because he cares about his own articles online not being stolen -- pretty fake, given that he's paid regardless of whether they are copied illegally, and he has no idea what it's like to make a living with digital content.
And it's not true that Swartz's crime is a "victimless crime" -- the irresponsible whine of the Internet children -- because in fact MIT's computer system was damaged, even if not permanently, and the effort to commodify digital content was smashed -- and generally eroded and not only for MIT but for JSTOR as a system and all universities. The goal of Lessig, Doctorow, Barlow and all the rest is to ensure that everything -- everything -- online is free. Except, of course, their own consulting services and speaking fees.
INFORMATION WANTS TO BE FREE -- EXCEPT FOR LESSIG'S AND DOCTOROW'S LECTURE FEES
Your content and my content "want to be free" -- and they will liberate it by force -- or rather, like the Saudi princes who pay for Palestinian suicide bombers -- they will tacitly send hackers to liberate it while they posture and frown about certain "lines crossed" . As I've always said about these con artists, their motto should be "Your information wants to be free; my is available only for a fee."
All in all, I find the suicide of Swartz -- if he intended it to be a suicide bombing for his cause, which it seems his friends and family are bent on characterizing it as -- and all the posturing and cavorting around the fake "Internet freedom" cause -- to be among the most morally revolting events around the Internet I've ever seen.
WHAT SHOULD HAPPEN
It's my hope that:
o the prosecutors will come out with a firm and detailed statement that rejects blame for suicide -- to establish the credibility of prosecution free from blackmail by such self-terrorism -- and that they will outline their reasoning for their continuance of the case;
o that if for some reason of professional ethics, these prosecutors cannot speak, that others with professional credibility will speak out on these points -- rejecting suicide as a way of obtaining exoneration and proof of innocent, and rejecting the notion that this case involved "50 years" or was inappropriately prosecuted
o that contradiction between those professors who sit in their high-paid positions and send kids to their doom, and those kids and their aspirations, will become so sharpened that both the gurus will lose their credibility and the kids will lose the leadership of their discredited movement and it will dissipate
o that legislators will defy the bullying of "the Internet" and work toward legislation that establishes the definition of piracy and the punishments for piracy in circumstances were the theft was intentional, massive, repeated, and for substantial monetary benefit
o that university officials at MIT and elsewhere will not be bullied into thinking that they cannot have walled gardens or paid content walls and will not be seduced by the copyleftist siren call to techocommunism and doom
I don't want to see communism, that rightly failed in real life because it was anti-human, succeed on the Internet just because anarchist hackers and their coy enablers in academia succeed in their erosion of the rule of law.
thank you for articulating my own frustrated thoughts about this. you are spot on. it really does make me feel ill whats going on with this whole fiasco
Posted by: Dan | 01/18/2013 at 03:03 PM
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Posted by: Southern California Law Support | 02/05/2013 at 11:03 PM