You see this photo here from the video camera? This is Aaron Swartz , in the server closet at MIT, with a laptop placed under a cardboard box, jacked right into MIT's LAN. Yes, the only thing missing is Col. Mustard. And he's breaking into this wiring closet because his previous attempts at rapid and voluminous downloads from JSTOR with a circumvention script and with spoofing of his MAC address and other ID masking had led to him being knocked off the network. So he had to try again -- directly, using more physical stealth.
This is action, and not "thoughtcrime". It's an act. A deed. And as I keep explaining, *propaganda of the deed* which is what anarchists do.
One of the poignant moments of the panel discussion at Fordham Law School last week, which was one-sided and which I criticized here, is when Chris Soghoian suddenly confronted Trevor Trimm, the dashing young copyleftism promoter from Electronic Frontier Foundation.
I called out Soghoian in this post for his call for "more technologists in Washington" to write technology-related law like CFAA reforms ostensibly because "Congress is stupid. That's because a) I think there are plenty of technologists, including well-paid Google and Facebook lobbyists and groups like the Sunlight Foundation and b) it's not really about technology, but about radical geeks trying to bring themselves to power under cover of "technology". The "enlightenment" they promise is in fact obfuscation.
But interestingly, in this meeting, there came a point where even Soghoian had to interrupt Trevor Trimm's apologia for everything Swartz did. He said something like this (I'm paraphrasing because there is no transcript or video):
"But wait. Aaron went in the server closet and put a laptop on their LAN. He broke into a locked server closet. I knew Aaron and liked him. But..."
There was silence in the hall.
It was the silence of hundreds of geeks, ACLU employees, law students, and other assorted types like me just marveling that Mr. Privacy-for-Me-and-Not-for-Thee was maybe appearing as more complex than might appear to be the case at first blush -- and saying something nearly blasphemous about Aaron.
Now, afterwards, geeks were hotly debating whether in fact the server closet was indeed locked. It's interesting that Mr. Privacy Guru from the ACLU said it was locked. I'm not sure how he came to hold that opinion or fact. Others say it wasn't locked, but that it was still trespassing and still wrong. Still others think that because MIT ran the loosest and most free-flowing network in the Metaverse, that Aaron's hack was "okay" and shouldn't have been prosecuted.
I went up to Trevor Trimm afterwards and said, "But Trevor, it was your fellow geeks at MIT that called the cops when they saw somebody who had been repeatedly knocked off their network for massive downloading millions of files, and who was now hanging a laptop off their LAN in the server closet! Your fellow geeks!" In other words, it wasn't some suit in the president's office, or some PR flak, or some old-lady librarian who didn't get technology. It was the geeks themselves. Your geeks. Perhaps even geeks who felt bound by some ethical principles (see the end of this discussion at Ars Technica).
He just kept jamming on his version of the story, and I never really got a chance to hear how he justified the laughingly self-serving proposal for reform of the CFAA which amounts to this: "If we're leet hackers who are especially cool and creative when we do a hack, we should get off."
Thus when Mike Masnick of TechDirt picks up the cudgel and claims that recent revelations about the Congression briefing by the DOJ staff means the feds were prosecuting "thoughtcrime," I simply have to object. He writes about the "admission" by the DOJ that the manifesto was influencing the prosecution:
More importantly, it suggests that Swartz was arrested and prosecuted for expressing his opinion on how to solve a particular problem. You may or may not agree with it, but I thought the US was supposed to be a place where we were free to express ideas. There's even some famous part of our Constitution about that...
But...Aaron Swartz amidst the wiring in the closet with a laptop he puts under a cardboard box so it's not visible is not engaging in mere thought or blogging; he's acting. There are those that think the other picture showing him with his bicycle helmet over his face isn't proof that he was disguising his identity to better commit a crime, or even a Guy Fawkes Anonymous sort of simulation, as the radicals would have it, but just Aaron covering his face because he had to do something stupid to get everyone to see what he thought was a more brillian point. Even so, it was an act, not a thought.
Leave aside that we are three layers removed from the source here -- it's Mike's interpretation of what Huffpo said about a Congressional staffer leaked about a DOJ staffer.
Masnick thinks it's "thoughtcrime" for the feds to invoke the Guerilla manifesto as proof of intent. And he then narrows his proof-test for that down to whether or not Swartz actually distributed the files. He did not. But maybe that's because he was caught. And I would submit that the deed wasn't really about actual distribution, but hacking and downloading large amounts "because he can" -- to show that the system is penetrable and therefore "stupid". It was an act of display; it was propaganda of the deed.
JSTOR seemed to prove this point -- that it wasn't about distribution -- by not pressing charges, and then REALLY prove this point by themselves releasing 4 million files -- right before Swartz killed himself. And perhaps that was their ultimate revenge, and his ultimate despair, you know? Because they did this willingly, when they could take the time to find the files they felt could deservedly be in the public domain -- AND they did this without putting themselves out of business or violating any of their licensing agreements -- things Swartz was not willing to wait for. Swartz -- like other hackers -- wanted to take away choice. You could see JSTOR doing this in a spasm of guilt and remorse; you could also see them doing this in an act of sanity and reason, which extremist hackers without ethics do not have, to prove their way was better.
Now, Mike Masnick is spinning all this now because of news leaking out of a closed briefing by DOJ staffers of Congressional staffers -- note how this got dumbed down from a briefing to members of Congress to just their staffers -- and was never at the level of a hearing.
I demanded that this briefing be open to the public with a transcript and video, like other Congressional briefings -- I was the only one, as the geeks would just as soon having their beloved heros like Issa "manage" something like this and control the news flow -- these people are only about "information wants to be free" when its your private information being doxed by Anonymous, not a Congressional briefing on a matter of public interest -- whether hackers get to destroy our institutions or not.
They'd rather take secret leaks from the closed briefing from unnamed staffers -- in a briefing about how supposedly their hero wants to liberate information for the knowledge commons!!! -- and then manipulate it and serve it up to you as their propaganda. That's how they roll.
I'd definitely like a second opinion after seeing how this story is being treated by Huffpo and TechDirt. But I bet a transcript doesn't even exist... enabling the geeks and their pwned "progressive" media to say whatever they want:
A Justice Department representative told congressional staffers during a recent briefing on the computer fraud prosecution of Internet activist Aaron Swartz that Swartz's "Guerilla Open Access Manifesto" played a role in the prosecution, sources told The Huffington Post.
"We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that's out of copyright and add it to the archive," Swartz wrote in the manifesto. "We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerilla Open Access."
Although the DOJ could have mentioned his actual acts, and the calls from MIT -- and we don't know that they didn't -- obviously any hint of "thoughtcrime" that the progs could grab on to came first.
When considering punishment, courts are supposed to impose an “adequate deterrence to criminal conduct" under federal statute. Swartz's "Manifesto," prosecutors said they believed, made clear that he intended to share the academic articles widely.
Well, he doesn't actually have to "share the academic articles". He doesn't even have to intend to share them. He just has to hack and liberate them to make a point -- that this can be done any time, by anyone, for any reason or no reason, and these walled gardens and pay walls "shouldn't" exist and can't exist with people like him around.
Prosecutors would also be mindful that Swartz hacked the Library of Congress with the same motivation and ideology; he hacked PACER with the same motivation and ideology; and JSTOR was just a natural progression.
As we know from Lessig's lectures and statements from Carl Malamud, who conceived of the PACER hack, they used a "legal loophole," i.e. they had "legal access" to PACER, as anyone would who had an account; they used a library code evidently, and it's not clear how "authorized" that was, but let's assume it was -- and then they used that "legal access" to download "lots and lots", i.e. millions of files "to make a point".
The FBI was unable to make charges stick on this because Swartz and Malamud used a cunning Fisk-like maneuver which is so common to the manipulative hacker culture -- find some technical flat point that is the case in a limited set of circumstances to make a larger point that already stretches the truth, or find something literally true and literally legal, then jimmy it just a bit to get it to be used in ways not intended by the maker or steward of the system. That's the hallmark of the peverse hacker mentality.
Carl Malamud is quoted at least as expressing remorse about Swartz's suicide -- he at least asked himself the "dark night of the soul" question as to whether he had urged Swartz to hacking and then got him in trouble he couldn't get out easily. He at least had the decency to ask whether he had incited Swartz's hack -- certainly more than Lessig did.
We can read about this in the New York piece here:
At a memorial, Swartz’s friend Carl Malamud confessed that he wondered if his own hot criticisms of JSTOR—he had tweeted that charging $20 for a six-page article was “morally offensive”—had incited Aaron to take undue risks in hacking it. When I spoke to him a week later, Malamud still hadn’t answered the question for himself. I asked why he had said that he sometimes feels guilty.
“Because the boy got in trouble and he killed himself,” he said. “Did I encourage him to do JSTOR? There were quite a few of us banging the table about this. Did we incite him to do this, and could we have done more once he was arrested? I don’t know. I ask the questions, and I can’t answer them. I can’t look in somebody else’s head and figure out what he was thinking. I could second-guess myself and ask what I did wrong, and I hope folks at JSTOR and MIT are doing the same. This was a tragedy.”
Malmud instantly answered my tweet with a link to the New York piece by (some people are always scanning for their interactions!) that I "didn't know what I was talking about". Well, I get to comment on public figures and their positions -- he is a controversial public figure in that he believed he had found "a legal loophole" in the PACER system to "make a point" but I don't believe it is a valid point. I believe PACER gets to recover their costs. I also think he indeed did properly express doubt and some sense of remorse, whereas Lessig has only dug himself in deeper and deeper with self-righteous twaddle. Of course, even in the midst of asking whether he bears culpability, Malamud is trying to shift blame to JSTOR and MIT for running walled gardens.
At the Fordham meeting, the international lawyer Scott Horton cried out in a loud voice, "LIES! LIES!" about the PACER claim to need to meet costs. He said PACER is "breaking the law" and that it is merely "fund-raising" with this charge of 8 cents a page.
PACER essentially is Westlaw only with composition or pagination. And I asked other lawyers outside the open source cult circuit what they thought of this and they said, yes, it is a legal question of whether they get to charge, but on the other hand, there are costs.
All of this could be handled by direct petitioning with PACER or the DOJ or Congress; you don't have to hack. But hackers are impatient, dramatic, and they want quick results. I'm unimpressed. I think legal minds will disagree what is right here. Maybe it should be one cent a page.
When the Obama Administration recently sanctimoniously vowed to have open access for publicly-funded research, they were also playing the Aaron Swartz and Carl Malamud game and taking a star turn for their open source pals. But the costs of servers, bandwidth, cataloguing, personnel still have to be met -- out of one pot or another. Whether the federal government "fundraises" though legitimate charges per page or through more taxation, it still has to fundraise.
In short, what we have here is a whole lot of nothing. We have some lower-level DOJ staffers -- the principles wouldn't bind themselves to it -- talking to some Congressional staffers. Some of those staffers -- probably Issa's or Lofgren's -- leaked the results to their press to spin it their way. They of all people should have been advocating for open access to this meeting, and it should have been at a hearing level with transcripts, not a low-level briefing.
Huffpo concludes:
Reich told congressional staffers that prosecutors offered Swartz a plea bargain early in the case that would have given him a three-month prison sentence in exchange for a guilty plea to a felony, according to three sources with knowledge of the briefing who would not agree to be quoted by name. Reich told the staffers that the plea deal would allow Swartz's lawyers to argue to a judge that Swartz didn't deserve a prison sentence.
Why can't you be quoted by name, cowards? Would this reveal that you are all from Issa's or Lofgren's staff and biased on this issue? And note that what the DOJ said is what Ortiz said: Swartz's lawyer was free to argue for probation. That was a distinct possibility in this case. Anyone hyping it to "7 years" let alone "35 or 50" is just hysterically hypothesizing.
Some congressional staffers left the briefing with the impression that prosecutors believed they needed to convict Swartz of a felony that would put him in jail for a short sentence in order to justify bringing the charges in the first place, according to two aides with knowledge of the briefing.
Well, they're entitled to their "impression," but that doesn't mean the DOJ *said* that. And the issue of deterrence does remain important. How can laws against hacking be taken seriously if you don't enforce them?
Again: he doesn't need to share the stolen goods to still show his intent from the guerilla manifesto, which is to encourage and incite widespread break-ins in order to smash the system -- an anarchist's approach to "liberate" knowledge.
There's an article in the New Republic by Norm Scheiber, touted on Facebook by Chris Huges, with oceans of white space and big hipster print (two kinds of people need big print these days: old people with poor eyesight and hipsters with little to say). It seems to strangely accomplish subtly what the nouveau establishment of the West-coder-turned-East-coder is saying about this kind of essentially criminal activity: hack, but wait until your 21st birthday. "Act like you got some sense. Greyhound don't float on water." This is why I called it "shorter Chris Hughes" on Twitter -- although the article is by Norm Scheiber, it has all the instrument marks of Silicon Valley handling all over it to "send a message" and make a political point.
"So Open it Hurts" with the URL label also beaming "The Internet Can't Save You" is supposed to be about "all" such tekkie suicides, but it only very briefly mentions the few other cases like Ilya Zhitomirsky, the coder of Diaspora. Along the way, it establishes more than any other long thinky piece on Aaron that he was, well, a loser. He had this zany, quirky teenage life as mentored by Lessig and other greats because he was a brain who believed even more than they did in their utopias. But he couldn't hold down a job or show up to work on time -- he was too much of a free spirit and possibly on the autism spectrum or suffering from some sort of 2e disability. He couldn't finish anything he started -- he would start projects and get bored or quarrel with people. These aren't the traits in young people that Silicon Valley wants to promote in the name of "innovation" -- they want stamina, and the message emerging from Norm's tongue clucking is clear -- if our venture capitalists value your shitty little product idea at millions of dollars, you better show up for work and show up at the right parties and nod and smile at us, or else.
One of the basic ethics-free principles of Bruce Sterling's in The Hacker Crackdown which I'm reading now is that all sorts of phreaks and crackers and hackers and credit-card kiters get to talk endlessly about their crimes, discuss their subtleties, write manuals for how to do them, plan them, even brag about them, even if they haven't quite done them, and we're all supposed to endlessly accept this as free speech and never touch it. We're supposed to weep when the Secret Service comes in and confiscates the computers and hardware of phreakers and hackers who ran the old Bulletin Boards of the 1990s, just because, oh, their wife's half-finished dissertation was also on that computer, or the next RP product in the their science fiction game business, or whatever. Well, boo-hoo. Be more careful. Don't associate with the guilty if you don't want guilt by association. We're unimpressed with these endless gyrations that you are only passing a few copies around of that AT&T 9/11 phone manual, and it wasn't really ever going to be hacked, and it really is all just in good fun. Blah blah. I'm with the Arizona attorney general in 1990:
"Agents are operating in good faith, and I don't think you can say that for the hacker community."
Oh, the Internet! The kids think that EVERYTHING related to it isn't real! Just wait until Mark Andressen gets done with them!
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