Monday, January 28, 2013

Aaron Swartz: Thoughts on the Death of an Idealist

by Nomad

The tragic story of Aaron Swartz, and the events that led up to him taking his life,  got me thinking deep thoughts about the age we live in. 

When Stealing isn't
The digital age has clearly thrown many past concepts into disarray. Particularly when it comes to the definition property and the definition of ownership. No small matter because after all, property ownership is the basis of capitalism.
If ownership of property is a concept that has been turned on its head then so has the idea of stealing the property. 
Most people can understand the concept of stealing. 
You got it. 
I want it. 
I take it. 
Now you don’t got it.

As most of us know, stealing normally involves the taking of property that the thief has no right to. It also implies that the original owner is deprived of that property by the act of theft.

So when a top federal prosecutor in Massachusetts in charge of a computer hacking investigation blankly states that “stealing is stealing, whether it was done with a computer or with a crowbar” many people might completely agree. It sounds right. Stealing is stealing, except....

Yet, in the brave new world of the digital medium, (songs, books or images) can be copied endlessly and in seconds, and that copy is exactly the same as the original, without any damage to the original, is it theft or is it something else?

True, while no property is actually lost, its relative value may (or may not) have decreased when everybody has free access to it. 

If somebody broke into your home and made an illegal but perfectly exact copy of your prized Chinese vase, would it be stealing? Would damage to the owner be the same as if somebody had broke into your home and snatched- or smashed- that vase?

What happens if you had wanted to keep my original vase behind closed doors and only let your special friends view it? Or make people pay money to get a peek? Would it be so immoral to make a copy so that the rest of the world could appreciate it? 

According to law, it would qualify as outright theft. That’s the message that the film and music industry, (which has supposedly taken a bit hit from illegal digital copying), has spent millions of dollars in advertising to push: Copying is stealing. 

If you want to argue, you are condoning criminal activity. You are making Beyonce go hungry. Copying a film, they say, is equal to stealing a DVD from a store. You are spitting in the face of Nicholas Cage when you do it. For the industry, the issue is black and white. 
Many technophiles, however, would beg to disagree. 

Few could argue that duplicating somebody else's creation and selling it on the cheap is ethically wrong. True creative artists deserve compensation, after all. Additionally most of us can see the harm done to the actual value of the property if the robber then made millions of copies of the hypothetical vase and gave them away. 
And that is the main problem.

It wasn't a moral or ethical question at all. It's a question of profit-making, pure and simple.

That is what has the "haves" so very upset.

But when it comes to information as a commodity, the discussion is raised to a whole new level. It becomes a war between capitalism and the digital age. The concept of Information as property is a relatively new one, and America once prided itself on its well-developed public library system.

But why shouldn't America be proud? It allowed any literate citizen with a strong sense of curiosity and patience, to investigate matters first hand.The digital age coupled with the Internet created a revolution for public access to information. It also made some people greedy.

The problem was the laws were pre-digital and many saw information, even apart from music and films, as a highly marketable form of property.

Big Mess of Trouble
This property paradox has recently been highlighted by the tragic January 11 suicide of Aaron Swartz, computer nerd extraordinaire. The twenty-six year old Swartz had already made a name for himself by being more than just a programmer. He had become a legend. 

By his early twenties, Swartz was financially set for life, having been one of the founders of the popular site, Reddit. He could easily gone down the same path as FaceBook founder, Zuckerberg but Swartz turned his attention to issues other than personal profit, being Time’s “Person of the Year.”. 

Above all, Aaron Swartz was an idealist.

After Congress drafted the much-despised SOPA/PIPA legislation, Swartz became the founder of the Internet activist organization, Demand Progress. Its aim was, according to its website. to:
" progressive policy changes for ordinary people through organizing, and grassroots lobbying."
Back in 2010, the organization launched a campaign against those Internet censorship bills. In the midst of raised public awareness about the negative potential if ever those anti-piracy bills became law, the ensuing outrage led Congress to quietly pull back and abandon their efforts. 

(In fact, Reddit, the company that Swartz co-founder and sold in 2006, that helped organize a large online protests that persuaded lawmakers to re-think.) 

Activism isn’t, as yet, illegal in the US but, in Swartz’s case, his strong belief in the power of the Internet led him to make decisions he would later regret. His first run-in with the law came when he used his programming skills to give free access to federal court documents through public libraries. It was all perfectly legal but it clearly raised hackles inside government. (There had been a small fee for the service.)

The New York Times reports that
About 20 percent of all the court papers were made available until the government shut down the library access.
(So much for the open government that the president likes to preach about to China and Iran.) 

In early 2011, Swartz was arrested by two MIT police officers and a U.S. Secret Service agent near Harvard campus on a felony charges. He was accused of downloading millions of files and posted for everybody to read. These weren't top security files, by the way. Just academic research. Eventually, Massachusetts state prosecutors had decided to dismiss the charges. They now claim that, for their part, they hadn’t asked for any jail time, only a slap on the wrist. 
According to Harvey Silvergate, in his article for Massachusetts Lawyers Weekly, "The Swartz Suicide and the Sick Culture of the Justice Department, " the state prosecutors now claim:
"It was anticipated that the state charge would be continued without a finding, with Swartz duly admonished and then returned to civil society to continue his pioneering electronic work in a less legally questionable manner."
Still, the state did not drop the case until the lawsuit was picked up by federal prosecutors who were looking to make a high profile example of Swartz. 
On July 19, 2011, a federal grand jury indictment was unsealed, charging Swartz with wire fraud, computer fraud, unlawfully obtaining information from a protected computer and recklessly damaging a protected computer.
All and all,. Swartz faced 13 felony charges, including breaching site terms and intending to share downloaded files through peer-to-peer networks, computer fraud, wire fraud, obtaining information from a protected computer, and criminal forfeiture.”

For this crime of illegal copying and free distribution of academic research, Swartz was reportedly facing a possible 35-year sentence. Three and half decades behind bars for illegally downloading books like “Byzantine Agricultural Innovations: A New Appraisal” or “Gender Inequality in Ancient India” (I made that up but it is exactly the kind of research that was downloaded.)
Just to compare, in the U.S., the sentence for manslaughter can vary from as little as a year to ten years. Had Swartz committed rape, he would have done far less hard time. (Sex crimes in both the federal and state systems carry an average sentence of six to seven years in prison,) If he had been found guilty, Swartz might not have seen the light of day as a free man until he was over 60 years old.
It’s no surprise therefore that he should have felt desperation.
Wouldn't you? 

Behind Closed Doors
The archives that he was accused of raiding, JSTOR, is one of the most famous digital repositories of journal archives and academic publications. While more than 7,000 institutions in more than 150 countries have access to JSTOR, that access doesn’t come cheap. You and I could probably not afford it and we might not be accepted even if we could. Every year, non-profit JSTOR turns away 150 million requests for information. A system like that, as Aaron well knew, can only work by restricting access.
Not long after Swartz was arrested officials at JSTOR came out with a statement. While they found his conduct to be a “significant misuse” of the access  they had decided not to pursue civil litigation. (Following Swartz’s death, JSTOR has declared its intention to make millions of academic publications freely available to the public. Let’s see how that fits into their business model before we rejoice.)

On the other hand, as the trial against Swartz developed, MIT remained silent on the matter.

The most obvious culprit was MIT, whose computer system Swartz used for his downloads. Their decision to make sharing journal articles a criminal matter is inexcusable. But their real betrayal was allowing these articles to fall into private hands in the first place.
Although most academic research is funded by the public, universities all but force their scholars to publish their results in journals that take ownership of the work and place it behind expensive paywalls.
Feeling the heat of public reaction, MIT has appointed professor Hal Abelson to conduct a policy review. Don't hold your breath. Once the pain of the suicide wears off, we can assume it will business as usual.

There’s another less reported aspect to this case. Last year, during the fiasco of SOPA and PIPA, there was another bill that the glorious 112th Congress attempted to pass into law. It was innocuously called the Research Works Act
The purpose of the bill? To "ensure the continued publication and integrity of peer-reviewed research works by the private sector". The key phrase is "private sector" — the RWA's purpose is to guarantee that for-profit corporations, like publishing companies, retain control over the publication of scientific information. 
As the UK Guardian reported last year:
It's hardly surprising that publishers would fight dirty to hang on to a business model where scientists do research that is largely publicly funded, and write manuscripts and prepare figures at no cost to the journal; other scientists perform peer-review for free; and other scientists handle the editorial tasks for free or for token stipends. The result of all this free and far-below-minimum-wage professional work is journal articles in which the publisher, which has done almost nothing, owns the copyright and is able to sell copies back to libraries at monopolistic costs, and to individuals at $30 or more per view.
Now the heavy-handed prosecution against Swartz makes a lot more sense, doesn’t it?

One more thing to add, the RWA was co-sponsored by Darrell Issa (Republican, California) and Carolyn B. Maloney (Democrat, New York). During the 2012 election, one academic publishing company, Elsevier (with the help of its senior executives) made 31 political donations. Two donations went to Issa and 12 went to Maloney, including the largest individual contribution. Nobody wondered why a foreign publishing company should be so interested in supporting US candidates.
With archives containing seven million publications and with an astounding profit margin of 36% on revenues of $3.2 billion, Elsevier, based in Netherlands, has had its share of controversy.

In the past the BBC charged that Elsevier had, in effect, bribed academics to give positive reviews on Amazon and Barnes and Noble websites. for one of its textbooks on clinical psychology. They called it a "marketing" mistake.
The company is currently being boycotted by academics. A petition advocating complete non-cooperation with Elsevier has, to date, been signed by over 13,000 researchers.

Can you guess why?
That’s correct. Because of its use of paywalls, and restricting access. Academics just hate it.
In reaction to the negative press, Elsevier backed down and withdrew its support for the RWA. And, in an example how government actually works, within hours, Lo and behold, both Issa and Maloney issued a statement announcing they would not continue to push the RWA bill in Congress.

Swartz, who had fought against SOPA and PIPA, must have known that this wasn’t merely about divulging academic information.It was all about money.

Was Justice Unjust?
The finger of blame is also pointing to flaws in the policies of the Justice Department and the judgments of the people employed there. Many of Swartz’s supporters are now calling for the chief federal prosecutor in the case, Carmen Ortiz to resign. They have characterized the handling of the case by the United States Attorney for the District of Massachusetts as over-aggressive and bullying. 
She points that that a prosecutor’s power to punish requires a great deal of restraint. 
..The prosecutor has enormous power and has to exercise that with some degree of fairness and judgment at that end.
Gertner goes further. In the Swartz case, sshe charges, Ortiz ignored the alternatives to the hardline path and chose to full scale intimidation and threats of prison time. For example, Ortiz might well have struck “a deal that didn't involve prison time or even a diversion program with a suspended sentence (such that charges would be dropped if Swartz stayed out of trouble for a certain set period of time)”

In fact, when it comes to indictments against corporations, like Wall Street equity firms accused of million dollar fraud, it has become fairly standard practice at the Department of Justice for a prosecutor to agree to grant amnesty in exchange for the defendant agreeing to fulfill certain requirements. Mostly, to fully cooperate- but the appearance of cooperation will probably suffice.
It is called “deferred prosecution “ and it is one reason why not one Wall Street executive has been indicted. 
With this policy in effect, a corporation (and its executives) are offered a different form of justice since one of the considerations to pursuing deferred prosecution is the “collateral consequences” it might have on the shareholders. The official phrasing is “disproportionate harm to shareholders.” Such concerns, of course, do not exist with non-corporate people. Still, nobody can argue with the collateral consequences of the Swartz case. Ortiz’s decision to take the hard line was a contributing factor in the suicide of a promising idealist.

Nevertheless, the Swartz case was apparently the “right” kind of high profile case for an ambitious prosecutor to make a name for herself. (Ortiz certainly achieved that.)
Finally, Gertner points out that part of the problem is that US Prosecutors like Ortiz get rewarded for "high profile" takedowns, and thus all of the incentives she had were to turn the Swartz case into something a lot bigger than it really was.
Swartz's lawyer has agreed with Gertner's assessment, saying that the prosecutors in the case were looking for "some juicy looking computer crime cases and Aaron's case, sadly for Aaron, fit the bill."
The backlash against Ortiz’s methods in the Swartz case has led to petition campaign that has already more than 10,000 signatures. The petition urges the President to fire Ortiz.
A prosecutor who does not understand proportionality and who regularly uses the threat of unjust and overreaching charges to extort plea bargains from defendants regardless of their guilt is a danger to the life and liberty of anyone who might cross her path.
Presumably this bold move by Obama would also include firing Assistant U.S. Attorneys Scott Garland and Stephen Heymann, who filed the 13 felony charges against Swartz and demanded the harsh terms. As the HuffPo points out:
While Garland was formally the lead prosecutor and both men have a long history of prosecuting Internet activity, it was Heymann who handled all negotiations with Swartz and his attorneys, according to those lawyers. In vain, Swartz sought to reduce the charges.
Ortiz came out with her own statement in her defense. 
The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably. The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct -- while a violation of the law -- did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases.
Ortiz, who is reportedly close to the Attorney General Eric Holder, has no reason to tremble or wet herself. She is probably untouchable. Any presidential interference would be seized upon by the Republicans as an impeachment offense or something. 
(Cue entrance for Issa and McCain)
Anyway, the law, as Oritz well knows, isn’t decided by petitions. Obama, who has in the past championed uncensored Internet access when it came to China or to Iran, will probably back off from any real action in the matter. (He hasn't lifted a finger in the Bradley Manning case and as commander-in-chief, it would have been easy enough.)

Information is the Blood of Democracy
Naturally one can understand how the profit margin could lead publishing companies to push universities to limit the access of academic publications. After all creating a demand by limiting availability or access is, of course, a fundamental principle of capitalism. However when that product is created through taxpayer funds or charitable contributions, there are some serious questions to be asked. Who, in this case, has the right to claim ownership, especially when the publication is digital (as opposed to hard copy)? 

Perhaps a more important question, a question that Swartz felt needed to be asked: When does the restriction to information (for the sake of profit) become a threat to democracy? 
In the past Obama has said he believe that the Internet should be free. It’s a good thing when citizens have access to information. They shouldn’t have to rely on their government for information- especially one that prostitutes to corporations so openly. Does the Justice Department support the president’s view or not? If the Swartz case is anything to go by, apparently not. 

If Obama seriously believes what he says about Net freedoms, then what about this? 
An executive order mandating that all universities receiving any government-funding must allow the unlimited access to the public to all academic research kept in archives. (Or at least show a valid reason why the information should be restricted.) Private-sector publishers would be compensated only for the printing materials or the cost to digitize. 
This would be a very important way for the president to demonstrate that he is more than a maker of meaningless rhetoric. 
*    *    *    *
It’s really not overstating things to say that this coveting of information is a threat to democracy. Democracy cannot be sustained when valuable information can be privatized by special interests behind expensive firewalls.
Once upon a time, we believed in journalism as a source of impartial information. Today, all of us, on both sides of the political spectrum, have reasons to doubt the impartiality of the media. Can the corporate-owned media outlets be trusted? 
That question can be answered in two words:
Fair and Balanced
From the role the major news networks (not just Fox) played in the Iraqi invasion, to the non-reporting of the Occupy movement, the evidence has given the public reason to wonder. Therefore, public sources of information, by which voters can determine- to their own satisfaction- the honesty of candidates or the news outlets has become critical to the making of public policy. 

The 21st Century Right to Know Project, composed of a coalition of conservatives, libertarians, and progressives from around the country, with groups like American Federation of State, County and Municipal Employees, American Library Association and Association of American Publishers, drafted recommendations for the president regarding the need for more open government. 
In their extensive list of recommendations, the organization made this observation:
The free exchange of ideas is a pillar of the scientific community. For robust scientific research programs to flourish at federal agencies, the government must allow its scientists and researchers to participate fully in the scientific community. Similarly, democratic governance also depends on ensuring that citizens have comprehensive and reliable information on their government’s activities. For both reasons, government agencies must allow their scientists to communicate their findings in scientific publications, at scientific conferences, and to the media and the public.
Take the climate change debate. As long as public access to scientific research is denied, then those who claim that man-made climate change does not exist has the equal legitimacy to the more well-informed. Without independent scientific evidence then it is merely one opinion against another opinion. How can the public ever know what to believe?
Nearly two hundred years ago, Thomas Jefferson once wrote:
..laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors. 
When the Net came into existence. we all got very lucky.The Internet has provided an opportunity to breathe new life into the corrupted democratic form of government but for this renaissance to continue, leaders must recognize the fact that information is the lifeblood of democracy. They must make laws, not restricting the flow, but encouraging it. 

After all, information wants to be free not imprisoned behind bars. Aaron Swartz believed that. For a nation that claims to be home of the free, and not a nation of ignorant slaves, it’s an idea worth believing in.