Law in the Internet Society

On the Death of Aaron Swartz

-- By GloverWright - 23 Jan 2013

That the death of Aaron Swartz may prove to be an inflection point in the development of law in the Internet society may well tell us more about ourselves, the American public, than it does about the young man who died so tragically. A suicide is a cipher that can be decoded in any number of ways, and reading from the death of Swartz a story of prosecutorial indiscretion and legal overbreadth belies, I think, an anxiety with the ways in which the law is being interpreted and administered in the twenty-first century. We are becoming aware, it seems, that those caught up in the grasp of law enforcement are all too similar to those we know and like, and perhaps even afraid that we ourselves – or worse, our children – are next.

I never met Aaron Swartz. But he was about my age, and he lived in my neighborhood, where, nearly two years after having been arrested for downloading about 5 million academic journal articles from the online repository JSTOR, he was found hanging from his belt by his bedroom window. Whether fairly or not, I can picture at least what some parts of his life must have been like, and I suspect that the ease with which all kinds of people can recognize and potentially identify with the type of person he was – seemingly shy but smart, social, and driven, nearly the opposite of an Adam Lanza – plays a large role in the horror they feel at his death.

Notwithstanding the general discomfort of people with early deaths that lack meaning – and the concomitant desire to imbue the deaths of the woefully young with some meaning, so that they cannot be said to have died in vain – there is something yet more uncomfortable, disingenuous, perhaps even disrespectful, about using a young man's suicide for political purposes, reading meaning into an act that may have had none. Swartz did not leave a note; whether he wished his suicide to play into a particular narrative may never be clear. He had recognized before, years ago, that depression “doesn’t come for any reason and it doesn’t go for any either.” But Swartz, in death, has been resurrected as arguably even more of a hero than he was in life, a martyr to the cause of freedom online in the face of persecution by professionals doing their jobs in the employ of the United States government.

Abi Hassen may be right that, under current law, Swartz was a criminal, but he is surely right that “what happened to him was not a fluke event, but instead was de rigueur,” and that Swartz's prosecutors were neither overreaching their authority, nor acting irresponsibly, but simply doing their jobs. Jennifer Granick, also writing in the wake of Swartz's death, similarly notes that “prosecutorial discretion is structured by various incentives [including] office culture, office policies, training, internal and external oversight, public oversight via data collection and information sharing, defining metrics for office and individual performance evaluation.” At issue is a culture, a way of doing things, not discrete decisions.

In any case, Hassen writes, “[p]rosecutorial discretion is not a mandate for prosecutors to apply fairness or common decency; it is simply the heuristic that determines who gets exposed to the system.” That heuristic is a strategy for determining who is an “acceptable target” in a world where, according to John Tehranian, an average Internet user's “normal activities” may result annually in as much as $4.5 billion in copyright infringement liability. And while Swartz wasn't indicted for copyright infringement, there can be no doubt that copyright concerns were at the root both of Swartz's actions and the government's case against him.

But while we may all be “criminals in waiting,” Hassen is also right that the government cannot “randomly [prosecute] typical Internet users for violating 'terms of service' agreements,” as it partly did with Swartz. The government needs a lawless figure against whom it may nobly act: enter the hacker. But Swartz was not an anti-capitalist anarchist like Jeremy Hammond, nor a troll like Andrew Auernheimer, nor an accused (homosexual) traitor like Bradley Manning. He was a good-looking if often disheveled kid – and for all his brilliance and maturity it seems like he may have had trouble shaking the “kid” stigma – with politics pretty agreeable to many who are Internet-savvy and an extraordinary ability with both people and computers. He was not just liked but loved.

Some have suggested that Swartz's death may prod Congress to reconsider the scope of the two laws under which Swartz was prosecuted, the Computer Fraud and Abuse Act of 1986 and the wire fraud provisions of the Communications Act Amendments of 1952, both of which the government looks increasingly keen to use in prosecuting a range of online actions. But the outcry over Swartz's death, in its breadth and ultimate feeling, indicates something more than mere dissatisfaction with a couple of laws. The indignation expressed by so many really may be more directed toward the system in which such a person might be threatened with lengthy incarceration, not to mention the collateral consequences of felony pleas, more about a regime as a whole than any of its constituent conditions – a regime that, as Granick writes, “as often than not is used against whistleblowers, disloyal employees, and activists.”

But the important thing is that while Swartz was an activist, he was also more than that, the embodiment of a type – the geeky kid with some pluck – implicated neither trivially nor negatively in the relatively moderate and technocratic conception of the present shared by so many in this country. We may never know why he committed suicide. But that we were so outraged, so quickly – so ready to express shock and dismay, so quick to explain – should tell us something about the unsettling relation we bear to the law and its enforcers when the kinds of things we all do, all day long, can be twisted and emphasized so that they are illegal. Whether Aaron Swartz's death has any more historical meaning than that may depend on whether we are able to translate our fear and ambivalence into significant political action. And while we may not know why Swartz died, surely we can know what he would do were he still alive.

I let this sit a while, because I didn't want my judgment to depend substantially on its quality as eulogy. which is unquestionably fine.

Now that we have even a few weeks' perspective on the events you were trying to interpret in medies res, I find myself only partially persuaded by the argument.

On this point I think you are completely right: response to the news of Aaron's death reflected a wider trauma. Whether the trauma can be separated entirely from the decisions made by individual human beings who bear responsibility is a secondary question. But how the circumstances in which Aaron found himself transpired remains an important question. I am looking forward to the publication of the MIT report on the subject, from which I expect to learn a good deal.

I don't think this is really about whether copyright law is disappearing. Its disappearance has always been certain, and still is. Nothing going on with Aaron, one way or another, either hastens or retards the collapse of the copyright system. If you are correct in the implication that what people are worrying about is the possibility of runaway copyright enforcement, they are worrying unnecessarily.

What I think people might be worried about is the climate of overall governmental intrusiveness connecting anti-terror, cybersecurity, automated pervasive surveillance, etc. Hence the sudden re-emergence of the black helicopters, as drones, in the United States Senate.


Webs Webs

r3 - 23 Aug 2014 - 19:33:50 - EbenMoglen
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