Transcript: Lawrence Lessig on "Aaron's Laws - Law and Justice in a Digital Age"
[The Unknown Transcriber has done a --- oh, heck, I can't use "superlative" any more -- stunningly excellent job transcribing this [applause]. I especially like how Lessig contextualizes Swartz's death as a consequence of corruption. It's all about the rents, baby! --lambert]
Outline of talk:
Part 1: Aaron
Part 2: Aaron's works – B©, ©, A©
Part 3: As a citizen
Part 4: The "crime"
Part 5: Godzilla meets Jefferson and Thoreau
Part 6: Aaron's laws
Closing: Aaron and us
1. The arrest, MIT and Secret Service, and Abelson report?
2. What to do about prosecutorial overreach, especially for those who don't have Aaron's connections?
3. Easy for lawyers to make things worse, how to make things better?
4. MIT Office of General Counsel running things, not educators? Lawyers huge part of the problem?
5. Aaron's third law – how to clean up campaign financing?
Lessig begins at about 8:50.
Clicking on the centered images of Lessig's slides below should take you to that spot in the YouTube.
Lawrence Lessig: Thank you, Martha, and from a distance thank you, Roy L. Furman, for the honor of being able to celebrate the incredible mix of talent in business and in art, but I’m sorry to have to celebrate that mix in the subject that I’m going to address tonight. Because when I was planning this talk, it was not to be a talk about Aaron Swartz. I’ve been working for many years in the field of corruption. This talk was to be a step forward in that work, but when five weeks and four days ago Aaron took his life I realized that the tumult of that experience would distract me and I asked Martha to let me delay the talk. And then I asked her to let me talk about Aaron. These plans that were canceled evolved to a plan to talk about what we call Aaron’s Law.
But I need to mark this conversation by recognizing how inappropriate it is. Because these sorts of talks are to be academic. There’s nothing academic about my connection to this subject. I can’t promise the disinterestedness that is so crucial to the contribution that we as academics are to make. I can’t even promise expertise, as this topic will force me into areas that are not my expertise. I can only approach this topic tonight not as an academic but as a citizen and a friend who believes it is also completely not appropriate that we have been brought to this place five weeks and four days since Aaron took his life.
Aaron Swartz was a friend. He was a colleague. He was a co-conspirator. He lived for 26 years. Half of those 26 years he lived his life in public. He was a prodigy. At the age of 13 he was awarded the ArsDigita prize – there he is accepting the prize – for work that would eventually inspire things like Wikipedia. At the age of 14 he helped co-design the RSS protocol – there is his co-designer Dave Winer. At the age of 15 he was the core architect for the technical infrastructure for Creative Commons. Here he is launching that technical infrastructure:
Aaron: Now that you’ve seen the theory behind Creative Commons, it's time to show you some of the practice. So when you come to our website here, you will go to Choose License. It gives you this list of options and explains what it means, and you fill out three simple questions. Do you want to require attribution? Do you want to allow commercial uses of your work? And do you want to allow modifications of your work?
At the age of 17, after being home schooled, he came to Stanford. He lasted for just about a year. At the age of 19 he began Infogami, which eventually merged with Reddit and became the most popular crowdsourced news site on the web today. And from the age of 20 through the end, he worked in a series of incredible projects, from the Open Library project to the Public.Resource.Org project to Change Congress, which I helped start with him. He was on our board, migrated to Fix Congress First and Rootstrikers, to the Sunlight Foundation, to the PCCC, and his final organization, Demand Progress. Twenty-six years.
In 12 of those years, I had the honor of knowing him. I first met him at conferences. His parents would chaperone him as a 12 or 13-year-old to attend these computer conferences. I invited him to be the core architect of Creative Commons. I got to watch him grow up. It was the first experience of being a father, although of course I can’t claim any responsibility for who he was. But who he was is captured still for us in his writings, his writings that live on the web. You can still find at the Archive.org the blog he had on his first day at Stanford which described who he was, what he was doing, what he dreamed of. You can’t see his picture – you see that little lack-of-picture icon. If you look at the code for the website, you can see his description of the picture. The short description is “My hat, my face, half in shadow, from a bright light towards the upper right,” but the longdesc, long description, is “A young man with a detached look and half smile stares at you with a quizzical look. There’s a bright light coming from an upper left casting part of his face in shadows. He seems to be wearing a black shirt which blends in nicely with the solid black background.”
Here’s who he announced to his fellow students he was. He said, “I think deeply about things and I want others to do likewise. I work for ideas and learn from people. I don’t like excluding people. I’m a perfectionist, but I won’t let that get in the way of publication. Except for education and entertainment, I’m not going to waste my time on things that won’t have impact. I try to be friends with everyone, but I hate it when you don’t take me seriously. I don’t hold grudges, it’s not productive, but I learn from my experience. I want to make the world a better place.” That was that kid.
And in his early blog at Stanford University, he displayed his character as the most insightful kid I’d ever known. His first day at Stanford he blogged, “Afterwards, we go over the dos and don’ts of campus life.” These are the Stanford officials describing to him how he’s supposed to live as a student. “You know, things like smoke your pot over by the lake, keep your vomit from binge drinking off the floor, and never, ever share files over the Internet.” [audience laughter]
Or "Stanford: Day 58: Kat and Vicky want to know why I eat breakfast alone reading a book, instead of talking to them. I explain to them that however nice and interesting they are, the book is written by an intelligent expert and filled with novel facts. They explain to me that not sitting with someone you know is a major social faux pas and not having a need to talk to people is just downright abnormal. I patiently suggest that it is perhaps they who are abnormal. After all, I can talk to people if I like but they are unable to be alone. They patiently suggest that I am being offensive and best watch myself if I don’t want to alienate the few remaining people who still talk to me.”
My favorite, two years later: “I’ve decided to stop being embarrassed. I’m saying goodbye to the whole thing: that growing suspicion as the moment approaches, that sense of realization when it comes, that rush of blood reddening your cheeks, that brief but powerful desire to jump out of your skin, and then finally that attempt big fake smile trying to cover it all. Sure it was fun, but I think it’s outlived its usefulness. It’s time for embarrassment to go.”
This is who he was. He was a kid. He was a man. He was a mensch. He touched tens of thousands, he has inspired millions, and in the time I have here tonight, I want to describe how I think we need to honor him.
Now if you think of this range of organizations that he was part of, this is a wide range of ideas. But to add a flavor of academics to this talk, let’s think about the periodization of these ideas. And I think there are three.
There’s a first stage we could think of as the Before Copyright stage, where what he was working on was projects to make information more widely available – RSS and his work with Tim Berners-Lee at the W3C founding the RDF project. This is the B Copyright stage, before copyright.
And then the second stage is the work around copyright – Creative Commons, the Open Library project, the Public.Resource.Org work – this was trying to make legal and appropriate the information that was being shared across the Internet.
And then finally, the After C stage, the after copyright stage of his life, when it wasn’t just copyright, but it was social justice and the issues around making the world a better place that was the focus of his attention.
But at the center of this and the center of the struggle that brought him to his end was copyright. And in the debate between those who are pro and anti copyright, Aaron Swartz was on neither side.
Indeed, if you remember the president’s speech when he was a candidate for Senate and he said, “I don’t oppose all wars. What I am opposed to is a dumb war,” I think Aaron could have said, “I don’t oppose all copyright. I opposed dumb copyright.” Dumb copyright. Copyright that doesn’t serve copyright’s purpose.
So, for example, think about this database, the PACER database, a database that has public documents about federal court proceedings, a database that makes itself available to the public, at the time Aaron was involved in this project at 8 cents a page, begging the obvious question in the digital age, what is a "page"? But this project to make this work available, this uncopyrighted government data available, obviously imposed significant burdens on those who didn’t have the money necessary to get access to this information, so Aaron and his co-conspirator, Carl Malamud of Public.Resource.Org, decided they would liberate the PACER database. They would liberate it by building a script that would suck down the information from the database to a computer and then clean the data up and make it available on the web.
Did that violate any copyright? No. There was no copyright in this data.
Did it violate the terms of service? Turned out it didn’t. There was an explicit permission to get access to the database that they took advantage of with the script.
Did it violate any of the technical protections that were built up around this database? It did not. There were no technical protections once you got access through the permissions granted through the terms of service. It was simply a script to access more quickly things people had the right to access.
It was a loop hole, a loophole, the sort of thing we have lobbyists for, finding loopholes in all of our laws, the sort of reason we have tax lawyers, finding loopholes in our obligation to pay taxes. But this was not a loophole for private gain, this was exploiting a loophole for public gain. Against restrictions that were not serving a public interest.
Here’s a second example. The United States Copyright Office has a database of all their copyrights and they have a technology to permit you to search that database. This is a technical legal term, but that database sucks. [audience laughter] So Aaron and Carl decided they wanted to engage in a similar liberation project. This time Carl went to the Library of Congress and, using permission given to him at the Library of Congress, snarfed all this down using a script to their computer and then cleaned this data up and made it accessible to a whole bunch of library projects that needed this information. Did it violate any copyright? It did not. Did it violate any terms of service? It did not. Did it violate any technical protections? It did not. They once again took advantage of this loophole, an unexpected use to access this public data.
Now in both cases the critical thing to see is that the databases that Aaron was archiving were not the Sony Picture Archive database, it was not the Universal Music Group database, this was not an effort to liberate all culture and make it all free on the Internet – these were targets where the restrictions made no sense. They made no copyright sense. And so he used his knowledge to evade them.
And it’s critical to see the reactions to these invasions. So when the PACER project became publicly known, the government sent the FBI to investigate Aaron, literally an FBI agent sitting outside of his home monitoring him and following him, this potential terrorist, Aaron was. But the Copyright Office's response was edifyingly different. Marybeth Peters wrote a letter in response to an inquiry where she said, “There is no copyright protection in these records – they are in the public domain...The database of the online records is likewise in the public domain.” It was completely appropriate for Aaron to do what Aaron had done, because these restrictions were not serving any copyright purpose. These were instances, I want to suggest, of unproblematic hacking.
Hacking. Though it’s not popular, it’s not appropriate, especially not appropriate in a law school to say this, but we need to celebrate the activity of hacking. We need to celebrate it because like lawyers, maybe better than lawyers, what this hacking is is the use of technical knowledge to advance a public good. Use of technical knowledge to advance a public good. There is cracking, there is violating people’s rights, there is doing things that hurt people – that should not be celebrated either when done with the law or through code – but hacking, using technical knowledge to advance the public good, is something that we lawyers too should celebrate just as hackers do.
So Aaron was a hacker. But he was not just a hacker. He was an Internet activist, but not just an Internet activist. Indeed, the most important part of Aaron’s life is the part most run over too quickly – the last chunk, when he shifted his focus from this effort to advance freedom in the space of copyright, to an effort to advance freedom and social justice more generally.
And I shared this shift with him. In June of 2007 I too announced I was giving up my work on Internet and copyright to work in this area of corruption. And I’m not sure when for him this change made sense, but I’m fairly sure when it made sense for me. Happened in 2006. Aaron had come to a conference, the C3 conference, the 23rd C3 conference in Berlin, and I was with my family at the American Academy in Berlin and Aaron came to visit me. And we had a long conversation, and in the course of that conversation Aaron said to me, how are you ever going to make progress in the areas that I was working on, copyright reform, Internet regulation reform, so long as there is, as he put it, this, quote, "corruption" in the political field. I tried to deflect him a bit. I said, “Look, that’s not my field." Not my field. And he said, “I get it. As an academic, you mean?” And I said, “Yes, as an academic, that’s not my field.” And he said, “And as a citizen, is it your field?" As a citizen is it your field?
And this was his power. Amazing, unpatented power. Like the very best teachers, he taught by asking. Like the most effective leaders, his questions were on a path, his path. They coerced you, if you wanted to be as he was. They forced you to think of who you were and what you believed in and decide, were you to be the person you thought you were? So when people refer to me as Aaron Swartz’s mentor, they have it exactly backwards. Aaron was my mentor. He taught me, he pushed me, he led me. He led me to where I work today.
Now at first after this shift, his shift and my shift, we worked together. He was a board member of Change Congress and Fix Congress First. He was a supporter of Rootstrikers. But later, having become impatient and discouraged with the way this work was happening, he moved more in the direction of social justice that Demand Progress pushed. So our paths diverged. He was working on the project of trying to push Barack Obama to the left, or I think trying to turn Barack Obama into Elizabeth Warren [audience laughter]. Me, my project was simply to try to get this man [Obama slide] to take up that fight which on April 2, 2008 he promised the fight to change the way Washington works because as he told us, “If we’re not willing to take up that fight, then real change – change that will make a lasting difference in the lives of ordinary Americans – will keep getting blocked by the defenders of the status quo.” That was my fight. And I teased him mercilessly that he had given up the real fight because of the temptation of list building and girls, I think was really what was behind it. And I believed eventually he would return to this core fight because I think he saw, because he said this core fight was ultimately the fight we had to win.
Now, such change, such change in your personal work and the thing you’re going to be doing, it turns out to to be pretty hard. When I did it I was told by a colleague I had betrayed the Internet. He was condemned to be an Internet activist forever in the eyes of most people. People never quite believe that you really want to move beyond the coolness of tech conferences and talk about copyright. And indeed, September 2010, Aaron confronted this again – and I'll give you a couple clips from his very last public speech at Freedom to Connect. This is the way it begins.
[video clip, Freedom to Connect keynote address, May 21, 2012]
Aaron: So for me, it all started with a phone call. It was September, not last year, but the year before that, September 2010, and I got a phone call from my friend Peter. “Aaron,” he said, "there's an amazing bill that you have to take a look at."
"Well, what is it?" I said.
"It's called COICA, the Combating Online Infringement and Counterfeiting Act."
"Oh, Peter," I said, "I don't care about copyright law. Maybe you're right, maybe Hollywood is right, but either way, what's the big deal? I'm not going to waste my life fighting over a little issue like copyright. Health care! Financial reform! Those are the issues that I work on. Not something obscure like copyright law."
Now, Aaron here was having a kind of Al Pacino moment.
[Godfather III clip]
Michael Corleone: Just when I thought I was out, they pull me back in.
But after he got over this feeling that maybe he needed to think about this a little bit more, he began to become convinced this was an issue he should work on. He wrote me an e-mail. He said, “I’m planning a campaign against this crazy new COICA bill tomorrow.” He asked me to sign his petition. And I had my own not quite Al Pacino moment, more George Costanza moment –
George Costanza: Every time I think I’m out, they pull me back in.
– and I ignored him, because I thought it was outrageous he would ask me to get back involved in a copyright fight. So a couple days later, after me not even responding, he wrote me, “Any idea if Lofgren” – Congresswoman Lofgren – “or anyone else you can think of for that matter, would be willing to take a stand against COICA?” And, playing dumb, I responded, “What, is that a virus?” And he responded, “No, the Internet censorship bill, close enough.” And indeed there was this bill, COICA. And what COICA did was this extraordinary provision to give the government the power to bring an in rem action against a domain name. So if somebody complained that they thought there was copyright infringement happening at harvard.edu, you could bring an action and the Attorney General could get someone to turn off harvard.edu because of this allegation of violation of copyright law.
So Demand Progress and others began a concerted fight against this proposal, and it looked pretty hopeless originally because there was a unanimous vote in favor of this provision in the Senate Judiciary Committee. But it never got to the Senate floor, because of this emerging fight. And that itself was a victory. And then pretty quickly this, like Jason in Friday the Thirteenth, came back, and he realized it wasn’t quite over yet, this bill had migrated and become what we now think of as the SOPA/PIPA legislation, and there was a new fight in its new instantiation to stop Congress from passing this bill. And one of the most important leaders in that fight was Senator Wyden, who had a filibuster where part of his filibuster was reading the names of every single Internet activist who contacted him saying that they supported the fight against SOPA and PIPA. And eventually there was a huge victory when in the House they voted down the bill. And then there was a break for Christmas. People thought it would come back. But then after major sites went dark in January, there was a total victory as the Senate signaled it would not bring the bill up either. And here’s Aaron on the victory:
[video clip F2C 2012 keynote address]
Aaron: And that was when, as hard as it was for me to believe, after all this, we had won. The thing that everyone said was impossible, that some of the biggest companies in the world had written off as kind of a pipe dream, had happened. We did it. We won. And then we started rubbing it in. You all know what happened next. Wikipedia went black, Reddit went black, Craigslist went black, the phone lines on Capitol Hill flat out melted, members of Congress started rushing to issue statements retracting their support for the bill that they were promoting just a couple days ago. And it was just ridiculous. I mean, there's a chart from the time that captures it pretty well. It says something like January 14th on one side and has this big long list of names supporting the bill, and then just a few lonely people opposing it. And then on the other side it says January 15th. And now it's totally reversed. Everyone is opposed to it, just a few lonely names still hanging on in support.
This was a victory, but the thing he saw that I didn’t see at the time was that it was not just a victory for copyright. He described [talking to] Senator Schumer, Wyden was saying, he said, "'What we’ve seen over the last few weeks from the grassroots is a time for the history books.’ The win is a triumph over very powerful special interests.” And what that triumph produced was a recognition that there was a more fundamental issue here, the issue that he and I had originally bonded on, this issue of corruption. But even more importantly was this interesting political reality that this fight had demonstrated.
[video clip F2C 2012 keynote address]
Aaron: Now I've told this as a personal story partly because I think big stories like this one are just more interesting at human scale. The director J.D. Walsh says good stories should be like the poster for Transformers. There's a huge evil robot on the left side of the poster and a huge big army on the right side of the poster, and then in the middle at the bottom there's just a small family trapped in the middle. Big stories need human stakes. But mostly it's a personal story because I didn't have time to research any other part of it.
But that's kind of the point. We won this fight because everyone made themselves the hero of their own story. Everyone took it as their job to save this crucial freedom. They threw themselves into it. They did whatever they could think of to do. They didn't stop to ask anyone for permission. You remember how Hacker News readers spontaneously organized this boycott of Go Daddy over their support of SOPA? Nobody told them they could do that. A few people even thought it was a bad idea. It didn't matter. The senators were right. The Internet really is out of control.
So this was victory, total victory, and it was his. His last moment to reflect on it. And as you can see, anyone who knows him well, [video clip] in his look, in his face as they celebrate this speech, which turns out to be his last speech, it was a moment when he could reflect that he had done something and believed he had done something important.
Now, that was shortly after he turned 25. A year before that, almost at exactly the same moment, it was not as happy, because a year before that he was arrested. He was arrested at MIT, he was arrested in this building at MIT [photo], building #16 [map], for entering the server. The government charged what he had done was to break into a restricted computer wiring closet at MIT. He broke in in the sense that he turned the door handle – it was unlocked. He had accessed MIT’s network without authorization. Of course, MIT has an open network. Anybody is free to access the network who visits MIT. He had connected to JSTOR’s archive of digitized journal articles. True, and as a Harvard fellow at the time, he was entitled to access the JSTOR archive of digitized articles. He had used that access to download a major portion of JSTOR’s archive. Here is the legal question. And he had avoided MIT and JSTOR’s effort to prevent this massive copying, and finally he had eluded detection and identification. For you to see how much of a genius he is, here was his technique of eluding detection [surveillance photo of Aaron holding up bicycle helmet]. [audience laughter]
The database he was accessing was JSTOR. JSTOR was started in 1995. It’s a nonprofit organization. The Mellon Foundation started it. It is huge, extraordinary archive of academic articles from the beginning of time when academic articles were published. When it was launched, people thought it was brilliant. The access that it provided to this information was extraordinary. But increasingly JSTOR had been subject to criticism. Carl Malamud of Public.Resource.Org called it "morally offensive, $20 for a six-page article unless you happen to work at a fancy school."
So, for example, to get a sense of this point, I did a demonstration. I was struck by this article in the Harvard Gazette talking about Gita Gopinath’s time at Harvard, her new arrival at Harvard, and the writer of the article I guess ran out of questions so he noticed that there are not many books on her shelf. And he asked her why. And her response was, “Everything I need is on the Internet now.” Everything I need is on the Internet now. So consider what exactly that means. If you look at a subject that I focus my attention on now, corruption, and you go to Google Scholar and you ask for the top articles about corruption, campaign finance, and you go through the top 10 articles in campaign finance and try to access them on a computer not on the Harvard network, this is what you find:
The top article, you can get for $29.95.
Number 2, you can get through JSTOR, terms unspecified.
4. Free so long as you agree to a $99.95 yearly subscription.
5. JSTOR, terms unspecified.
6. JSTOR, $10 for the article.
7. JSTOR, terms unspecified.
8. JSTOR, terms unspecified.
9. JSTOR, terms unspecified.
So how accessible is this information to those not at an institution like this? Well, one of them is free for one time only, one of them $10, three of them $29.95, five terms unknown, protected by JSTOR. So when she says everything is on the Internet now, what does that mean? It means if – and this is a big if – tenured professor at elite university, or maybe a professor at elite university, or student or professor at elite university, or students or professor at U.S. universities – whatever, if you are a member of the knowledge elite, then you have free access. But the rest of the world, not so much.
Now, we should name this. We should name it "outrageous." Here’s Hillary Clinton giving it that name. We should name it outrageous because we built this world. We academics built this world. It flows from the deployment of copyright that we have chosen. But here copyright is not to benefit authors, it’s to benefit publishers. It’s not to enable authors – there’s not one of the authors on this list who get money from copyright. Not one wants the distribution of their article limited. Not one of them has a business model that benefits from restriction. Not one of them should support this system as knowledge policy for the creators here. It is crazy. It is dumb copyright policy. And as Aaron would say, he doesn’t oppose copyright, he opposed dumb copyright.
Now the thing that I didn’t see was just how profoundly this troubled him. Noam Schieber has the fantastic piece in New Republic which recounts Aaron attending a 2008 conference in Italy. Quotes, “Rich people pay huge amounts of money to access articles. But what about the researcher in Accra? Dar es Salaam? Cambodia? It genuinely opened his eyes.” And I hadn’t, until this talk, put these things together to recognize that it was after his attending that conference that he wrote anonymously, although the contact e-mail was his e-mail so it wasn’t so anonymous, The Guerilla Open Access Manifesto.
The Guerilla Open Access Manifesto has a lot to it, but here’s the part I want you to focus on. He says, “Information is power. But like all power, there are those who want to keep it for themselves. The world’s entire scientific and cultural heritage, published over centuries in books and journals, is increasingly being digitized and locked up by a handful of private corporations.” He talked about open access, the choice authors now make to make their work freely available. But he said open access “will only apply to things published in the future. Everything up until now will have been lost. That is too high a price to pay. Forcing academics to pay money to read the work of their colleagues? Scanning entire libraries but only allowing the folks at Google to read them? Providing scientific articles to those at elite universities in the First World, but not to children in the Global South? It’s outrageous and unacceptable.” And, “we can fight back.”
“We need to take information, wherever it is stored, make our copies and share them with the world. ... We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerilla Open Access.”
And that manifesto linked to a site, and that site linked to a bunch of projects that encouraged people to scan and share what they had scanned, to send Aaron hard disks or journal articles, PDF forms, and they would help to make them available.
Two years later he attended a conference, this time in Budapest, where this issue came up again, and at that conference I am told he learned that JSTOR had been asked, "How much would it cost to make this available to the whole world. What would we have to pay you?" And the answer was 250 million dollars. 250 million dollars. And it’s immediately after that conference that it’s clear Aaron begins the actual work that brought him into the crosshairs of the government. And here he is talking about this shortly after that conference:
[video clip, The Social Responsibility of Computer Science, University of Illinois, October 16, 2010]
Aaron: Everything up to now, all of those journals, all that scientific legacy going back to the Englightenment, that's still behind locked gates. But you, you have a key to those gates. And, with a little bit of shell script magic, you can get those journal articles. You can download copies of them, and once you have a copy, theoretically you could make it available to everyone. And if you don’t know how to make it available to everyone without getting caught, you can go to GuerillaOpenAccess.com and find my mailing address. And hard drives that get to us there will find their way online. Feel free to visit the website using Tor if you want to protect your anonymity. Same goes for any other caches that you guys may have that need to find a gentle home, scanned books perhaps.
I mean, you know, this isn’t the biggest problem in the world, but like I think we should understand, this is a serious problem. In the same way that people did civil disobedience, broke the rules for the civil rights movement, there are people who now chain themselves to nuclear power plants to prevent the earth from imploding. Like, it’s actually a serious problem that the vast majority of the planet doesn’t have access to our accumulated scientific knowledge. And I think it might be a worth a little bit of shell scripting and breaking a couple rules to solve that problem.
“Shell scripting and breaking a couple rules.” Now, Aaron never spoke to me about this plan, shell scripting and breaking a couple rules. In my view, which he knew, the issue is much more complicated. Not the copyright issue, I'm completely with him on that. The what-to-do-about-it issue. In my view, organizing to force change was fine, but I was not so clear on what he was calling civil disobedience. I was not so clear because the facts here are special.
First of all, a fact that was not even clear to me at first was that JSTOR doesn’t even set its own prices. When you go to an article and you’re outraged by the fact that it costs $20 to get an eight-page article, that’s because the journal itself had set that price. And for all of its flaws, JSTOR did actually facilitate real access that wasn’t there before. Certainly, as a percentage, the number of have nots after JSTOR is exactly the same. But as a percentage, the haves are many, many more, as many universities that never would have had access to this information have it because of the structure JSTOR had built.
But the most important point, the point I had written about, was to take this on through civil disobedience risked devastating penalties.
Civil disobedience has an important tradition. David Byrne wrote a piece about Aaron and civil disobedience where he reflects on the instances of civil disobedience on the past. This in particular you think of as our most important civil disobedient of the 20th Century:
What is civil disobedience about? It’s about taking a public act, being willing to pay the penalty because you are able to pay the penalty. But copyright is different. The disobedience in copyright is not done in public. People are not willing to pay the penalty because we are not able to pay the penalty.
Compare: Martin Luther King, the civil disobedient, was arrested on scores of misdemeanors. He was only ever charged with two felonies and acquitted by an all-white jury of those two felonies because the basis for the claims were so outrageous. He did jail time, scores of days in jail. Compare him with Aaron, charged with 13 felonies, giving a federal judge the right to sentence him to up to 35 years in jail.
Now, he knew this about my view. So the alleged "crime" he engaged in while he was a fellow here at Harvard was not engaged in at Harvard. To protect me, I take it, he went down the street to MIT to commit what is called the crime.
So how do we understand what he did? Let’s start simply. Let’s start in a very conservative space. What he did is not obviously legal. But is it obviously illegal? And the answer to that depends on what we think he was doing. And there’s a range of possibilities. I’m going to be obscure because I actually know what he was doing but I can’t reveal that in the context of this context because I learned it in the context of representing him for a brief time, so I will give you a range and you can pick what you think is possible.
Number one, he could have been simply hoarding this material. Geeks have been known to do stuff like that. “Let’s just get everything, so it’s all on my machine.”
Number two, it could have been research. When he was at Stanford, he worked with this Stanford law student [Stanford Law Review December 2008, Shireen Barday: Punitive Damages, Remunerated Research, and the Legal Profession] on a project to evaluate the corruption in legal scholarship. And what he did with this project with this woman was to download all of the journal articles from Westlaw using one of his shell scripts and then to read through the first three footnotes of those articles to identify funding sources for all of those articles, and then use that information to try to evaluate whether the funding source might have been related to the actual conclusion of the article. None of the material was made available outside of Westlaw, so none of it was distributed. It was just solely for the purpose of doing this evaluation of the integrity of legal scholarship.
Number three: He could have been intending to liberate the work for the Third World. That was the point that Noam’s piece brings to the fore.
Number four: He could have been intending to liberate it for the whole world. That at least is the sense of the Guerilla Open Access movement.
And number five: In theory at least he could have been trying to make a lot of money, because if it was worth 250 million dollars to JSTOR, what could he have gotten for it on the black market now? [audience laughter] As much as we academics think of ourselves, none of us think that our articles are worth squat on the black or white market, so let’s just wipe this one off the possible list of what Aaron might have been doing and focus on the other four.
How could doing any of these four things be wrong, or what kind of wrong could it be? I’m going to focus on two. One is copyright and the other is the Computer Fraud and Abuse Act.
So, copyright first. JSTOR, of course, has a database of works. Some of those are copyrighted, and the act of "copying" those works you might think is obviously regulated by the law of copyright. That’s what the word is, "copy right." Obviously, but obviously false. Because of course the history of copyright law has not been a history of regulating copies. The first copyright statute regulated printing, reprinting and publishing. The word “copy” only enters our statute in 1909 when it gets appended to the traditional list, "copy," but according at least to Lyman Ray Patterson it was something of a typo, it was a mistake, because the word “copy” is what you use to refer to what you did with a statue, it’s not what you would use to refer to what you did with a book, which means this was an accidental addition. But once the word was in the statute, it took on its own life, as technology encouraged ways for people to, quote, "copy." Which means that each of these activities, regardless of their ultimate effect on the underlying business model of the entity that was being copied from, triggers copyright law because they produce a copy.
But interestingly, if you look at the indictment and in the superceding indictment, neither of them charge copyright infringement. Didn’t even mention copyright.
So why is that? Well, one, it might have been harder. Many of these articles were in the public domain. Others were in private domain. Proving all that would have complicated the matter. But I think the real reason is number two, JSTOR very quickly signaled to the government they didn’t want to have anything to do with this case. They did not believe it should be prosecuted. They were not going to cooperate, and they would have had to cooperate to make it compelling for them to have the copyright case they would have had to pursue.
So if it wasn’t copyright, then it was the Computer Fraud and Abuse Act, a statute from the 1980s which is long and complicated but has two critical parts. One which criminalizes accessing a computer system without authorization, and the other which criminalizes exceeding the authorized access the system is giving you.
So without authorization, that means stuff like stealing a password or using technology like this [Automated password guesser Python script] to go and hack into a system by guessing a password. “Exceeding authorization” though created a puzzle in the courts. What did that mean? Did it mean "hacking" or simply "misusing" the data relative to the terms of service that the provider offered?
A very important case from the Ninth Circuit tries to resolve that question. Judge Kozinski in this case sets up two different cases. He says [U.S. v. Nosal, 9th Cir. 2012 PDF] “assume an employee is permitted to access only product information on the company’s computer but accesses customer data: He would ‘exceed[ ] authorized access’ if he looks at the customer’s list” through “hacking,” and by hacking he meant, as he specifies at the end of the opinion, “the circumvention of technical access barriers.” He distinguishes that case from a second: “the language could refer to someone who has unrestricted physical access to a computer, but is limited in the use to which he can put the information. For example, an employee may be authorized to access customer lists in order to do his job but not to send them to a competitor.”
Now this is a different sort of restriction between these two kinds of unauthorized access. One is a restriction of code, the other is a restriction of law.
With the first one, "hacking," you break code restrictions in order to get access to the under– or to use the underlying information. With the second, you break contract restrictions, the terms of service saying you can’t use this for this purpose but you can use it for that purpose. And as breaching the CFAA is a felony, that begs the question, for at least us contract professors, is this really a case where a breach of contract is a felony? Judge Kozinski said no, you can’t read the statute like that. He said, “Under the government’s proposed interpretation of the CFAA, posting for sale an item prohibited by Craigslist policies or describing yourself as 'tall, dark and handsome' when actually you’re short and homely, will earn you a handsome orange jumpsuit. Not only are the terms of service vague and generally unknown – unless you look real hard at the small print at the bottom of a webpage – but website owners retain the right to change the terms at any time and without notice," so he holds that "the phrase 'exceeds authorized access' in the CFAA does not extend to violations of use restrictions," it refers instead to “violations on access to information, not restrictions on its use.”
Now, if we could shift into cyberlaw geek mode, there’s something really weird about this distinction, because both kind of restrictions are restrictions effected with what we can say – words, right? One is the words of code, and if you violate that restriction, it’s a felony. Another is the words of contract, and if you violate that restriction, it’s not a felony.
So, for example, if I put a webpage up with these tags, what that will do is in bold at the top of the webpage say, “By using this site you agree not to use the print-screen command.” If I violate that by using the print-screen command, Kozinski says no felony. But if on the other hand I put in my webpage this code, which I’m sure some of the hackers in the room recognize this as code to disable the print-screen command, and I hack around that, Kozinski says that a felony. But literally, these are both just words, words on both sides.
Now you could say the intent to invade is clearer if I’m using hacking technology as opposed to just ignoring something that’s on the site, but standing here in the well of a law school, I’ve got to say it’s a little bit demeaning to recognize that the coder’s words are taken more seriously than the lawyer’s words. [audience laughter] Disagree with the coder and you go to jail. Disagree with the lawyer and you’re just laughed at, because everyone disagrees and ignores the lawyer.
Okay, shift out of cybergeek mode back to this case. It’s because of that case in the Ninth Circuit that the indictment against Aaron was superseded by an indictment that dropped all reference to "exceeding authorized access." So the only question in the case was whether he had "unauthorized access" to the computer system. So that’s the question, was he guilty of that?
To see that, we have to think a little bit about what he actually did. There was no traditional "hacking" here. Right? Because if you go to JSTOR on a computer here, you’ll see that the URL basically just has a number at the end which is referring to the article. When Aaron saw that, he recognized it was pretty trivial to write a script to download all of the articles; you just needed to write a script that created a URL for every number within the range that JSTOR offered. So it was trivial to just say, “Download an article, download an article, download an article." It was a script to snarf this as quickly as possible. It’s a little bit too fast for you, but that’s the point. It’s a little bit too fast. It’s as quickly as possible. And when JSTOR noticed this, they blocked his IP. So Aaron took a new IP. And when JSTOR noticed that, they blocked a range of IPs. But that caused some trouble because it blocked all MIT access to JSTOR. [audience laughter] So then JSTOR blocked his MAC address, the address on his computer that particularly tied it to the Acer computer he was using. So Aaron spoofed the MAC address. This was a game played to keep this routine, keepgrabbing.py, a Python script, running. It was a kind of cat and mouse game where Aaron was the cat, JSTOR was the mouse, and maybe this is the modern version of this game [slide of mechanical cat and mouse].
So if you think about it, what happened here, where there were lots of technical tricks to enable the download of lots of articles: He was permitted to have "some" articles, no one doubts that. By contract he was not permitted to take "all" of these articles. And when code was deployed to block him from taking lots, he is alleged to have evaded that code and taken it notwithstanding.
Now, we don’t know if a jury would have found that to be a sign of guilt. We don’t know whether he would have been found guilty. His attorney, Elliot Peters, reports he was extremely optimistic after the revised indictment was released because he believed he could show Aaron’s access was actually authorized, and he believed that there was a reason why the evidence of his cat and mouse game would not be introduced, and he believed there was no harm done.
But that begs a second kind of cyberlaw geek question. It’s the ambiguous nature of harm in the context of cyberspace. Because think about this question of harm in two separate cases. First, there was no ambiguity about the harm caused by this civil disobedient. [Martin Luther King mug shot] Now, I’m all for it; the harms that he caused by engaging the civil disobedience that he engaged in, I support, I celebrate. But there was real harm there. Disruption, interruption, all sorts of costs in order to deal with the protest which his civil disobedience was supporting. But there is an ambiguity about the harm caused by something like this: [keepgrabbing.py script] You know, if you’re just downloading articles, then you could say it may be causing harm. Depends on the articles, depends on its potential use. But if you’re doing something like downloading credit card data, then it’s certainly causing harm.
So the harm is ambiguous, leading the statute to be ambiguous, meaning the prosecutors have to tie the prosecution to the intent. Here their claim was that Aaron intended to distribute this through file-sharing networks.
Now, it’s important to notice that of the four possible things he was doing, that’s actually not true about the first two. If he was doing hoarding or research, there was nothing about distribution involved. It's not even clear about liberating with respect to the Third World – the Third World notoriously doesn’t have great Internet access. The alternative modes of distributing might be actually physical devices that are located in universities around the Third World. It would have been true about liberating JSTOR for the world. But even here, the harm that would have been caused from both of those is ambiguous.
The US Attorney uttered at the time when they celebrated the prosecution of Aaron – they don’t celebrate it much anymore – but in the press release said, “Stealing is stealing whether you use a computer command or a crowbar,” leading me to suggest it sounded like she didn’t know much about computers or crowbars. Because with respect to harm, that claim is just not true. With respect to harm, think about both of these. For Third World liberation, the Third World had no access to JSTOR. The access Aaron would have granted would have been no harm to JSTOR. And even with respect to the First World, there is not a single institution that pays JSTOR that would then say, “There’s no need for us to pay for JSTOR access because our professors can get it illegally on the BitTorrent servers." [audience laughter] So there was zero market harm here. Which is why JSTOR wisely and quickly said, “We don’t have a dog in this fight and we don’t want you to pursue it.” So when you think about this point of committing crimes with a computer or a crowbar, the point to recognize is that computers are sometimes harmful, crowbars are always harmful, which evokes perhaps the most quoted letter in the history of the United States from a United States president quoted in this law school, letter of Jefferson to McPherson, explaining why in fact this was true. As Jefferson wrote:
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess so long as he keeps it to himself, but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less because every other possesses the whole of it. He who receives an idea from me receives instruction himself without lessening mine, as he who lights his taper at mine receives light without darkening me. That ideas should freely spread from one to another over the globe for the moral and mutual instruction of man and improvement of his condition seems to have been peculiarly and benevolently designed by nature when she made them like fire expansible over all space without lessening their density at any point, and like the air in which we breathe and move and have our physical being incapable of confinement or exclusive appropriation.
Until the Computer Fraud and Abuse Act.
These harms can, but they need not, produce harms. And so what this shows is that we need prosecutors who can tell the difference, who can tell the difference between Aaron and evil. Judge Kozinski reported that in response to his questions at the oral argument at Nosal, the government assures us, the government assures us, that it won’t prosecute minor violations. But the most striking thing of this prosecution is that the more they knew about Aaron, the more vicious they became. Their assurances notwithstanding, they became more intent to fight to make this an example. Instead of just simply saying, “I’m right,” they adopted the ethic of “I’m right and therefore I’m right to nuke you.” They bullied, as I’ve said. They played an example justice game, the “teach him a lesson,” here, a lesson that was lost on him and therefore lost for us.
Now, you don’t need to believe that Aaron was right to see why what the government did here was wrong. Even if it was right that he committed a crime, still it was wrong for them to behave so disproportionately in response to that crime. In an age where the architects of financial disaster dine regularly at the White House [Lloyd Blankfein smiling at Obama], or when as Elizabeth Warren last week got us to recognize, regulators can’t even find a reason to take a bank to court, what interest, what reason, why did the government need to insist that this boy be labeled a felon?
Henry David Thoreau, on civil disobedience, wrote this:
Unjust laws exist; shall we continue to obey them or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once? Men generally, under such a government as this, think that they ought to wait until they have persuaded the majority to alter them. They think that, if they should resist, the remedy would be worse than the evil. But it is the fault of the government itself that the remedy is worse than the evil. It makes it worse. Why does it not cherish its wise minority? Why does it cry and resist before it is hurt? Why does it not encourage its citizens to be on the alert to point out its faults, and do better than it would have them?
Five weeks and four days after the hopelessness of this fight overcame him, I still want to know why.
But the question here is what should be done? Immediately after his death, Zoe Lofgren – you remember her from Aaron’s first thought about maybe there is one Congresswoman who might possibly see the idiocy in COICA – Zoe Lofgren wrote to say she intended to introduce something she wanted to call Aaron’s Law. But not in Congress. She introduced it first at Reddit. And she asked the people in Reddit to comment on the bill, and there were thousands of these comments, and then she took those comments and redrafted it in light of those comments and now has submitted it. EFF identifies three crucial things any new bill should do. It cannot criminalize violation of private agreements, it must allow people who have access to the information to do it in an innovative way, and the penalties need to be proportionate to the computer crime. They believe this draft bill would work to achieve the first two of these elements.
And I believe this is an incredibly important and significant and valuable piece of legislation, and it’s enormously fun to see a bill where Zoe Lofgren and Daryl Issa stand on the same stage supporting the reform. Indeed, at the memorial service at the Capitol, this is Daryl Issa [at mike]. Daryl Issa giving a speech about how he celebrated Aaron’s desire to, quote, “stick it to the man,” end quote. [audience laughter] And this was an amazing event. It was filled with members of Congress. Now, as most members of Congress – it was filled with members of Congress who came for 10 minutes or 15 minutes, most of the time sat there with their Blackberry, all of them wanting to speak except for one, this woman, Elizabeth Warren, who came, who sat through the whole of the event, asked not to speak, didn’t once look at her Blackberry, but tried to understand the tragedy which we were talking about.
This bill would be great. Aaron’s Law is great. But. There should be no illusion. Aaron’s Law is fundamentally incomplete. Aaron was a hacker, but not just a hacker. He was an Internet activist, but not just an Internet activist. He was a political activist, but not just a political activist. He was a citizen who felt a moral obligation to do what he believed was right.
And if he was guilty here, it was because he acted on that view of what was right. And we need to act to respect that act of citizenship.
To think beyond what Aaron did. To think beyond what was done to him. To think about the ideals he gave everything in his life to and to make those ideals the law.
So obviously, first, we need to fix the CFAA. But the list of Aaron's Laws is more than this one.
Number two: We have to fix dumb copyright. For we are here in part because of dumb copyright laws. For example, what got me into the copyright activist phase was a statute in honor of this great American, the Sonny Bono Copyright Term Extension Act. A statute which extended the term of existing copyrights by 20 years. The question Congress was to ask when they passed this statute was, “Did it advance the public good?” So obvious was it that you couldn’t advance the public good by extending the term of an existing copyright, that when we got a bunch of economists to join a brief attacking the bill in the United States Supreme Court, this liberal left-wing – oh, I’m sorry, this is Milton Friedman – right-wing Nobel-Prize-winning economist said he would join the brief only if the word “no brainer” was somewhere in the brief, so obvious was it that you couldn’t advance the public good by extending the term of existing copyright. But apparently there were no brains in this place
when Congress unanimously extended the term of existing copyrights. What there was was more than six million dollars in contributions from Disney and related corporations eager to see their copyright extended, the public good be damned.
Or think about this example. This is a bill called the Research Works Act. The background of this bill is the policy of the National Institute of Health that says that all government-funded research after 12 months has to be available for free download. There are companies that don’t like this. [Elsevier logo] They don’t like this because despite the Consumer Price Index rising like this [moderate upslope] over the past chunk of time, their serial price has risen like this [much steeper]. They realize they’re making an enormous amount of money by selling access to these articles, including articles that have been funded by the taxpayer. So what this bill does, the Research Works Act does, is ban the government from promoting open access for government-funded research. Why? Well, according to the press release when the bill was released, it would save American jobs. Raising the puzzling question, How, when you increase taxes, do you get more jobs? Because effectively we have to pay for the research twice, one when it’s produced and one when we finally get access to it.
Second, it was said “to advance the public interest in the important peer-review publishing system,” forgetting of course that peer review is free. Nobody gets paid for peer review, and there are important journals like the Public Library of Science that have open access as a way of making work available without the need to control exclusive rights. So what explains this bill? I have no idea, but here’s what MapLight points out. The people who support the bill got six times as much funding from interests that were affected by the bill than people who opposed it, and the person introducing it literally got 40% of the contributions from Elsevier and related corporations that they gave to anybody in the United States Congress.
So. This is a need here, a need for a copyright law that thinks about copyrights and purpose. And in part that purpose is to support a public domain. And so when we think about the second of Aaron's Laws, we need to fix this dumb copyright law so it serves that underlying important purpose.
But even more important, number three, to fix the system that makes dumb copyright laws and other laws, environmental laws, healthcare laws possible. Because these dumb laws are law in part because of this thing Aaron identified as corruption. And not just Aaron. As he left the United States Senate, John Kerry gave a speech on the floor where he called it corruption too. He said, “I mean...the corruption of a system itself that all of us are forced to participate in against our will: The alliance of money and the interests that it represents, ...the agenda that it changes or sets by virtue of its power is steadily silencing the voice of the vast majority of Americans ... who can’t compete at all.” This law is to recognize this cause, the cause of this corruption, and the cause is the way we fund our elections. This is the roots, and to take again Thoreau’s words, “If there are a thousand hacking at the branches of evil to one striking at the root,” this is the root that the rootstriker, Aaron, would insist that we change. And we change to end this corruption. That’s number three. Three laws Congress can enact.
But the fourth is the most important, and it’s a law that we need to enact. It’s a law to fix the obliviousness that we live our daily life with.
Aaron was a supertaster. A supertaster with food. Really hard to have him with dinner because he couldn’t eat anything because everything was overwhelming in its taste. He could only eat the blandest of food. But he was also a supertaster about injustice. He just didn’t get the obliviousness that he saw around him to injustice, individual, institutional. And there was obliviousness here with respect to this case, in institutions and individuals within the institutions, individuals who did nothing to bring a system around to recognize the insanity of what was being done. Now not just obliviousness. There are plenty who did plenty. John Palfrey, Jon Zittrain, Hal Abelson, Joey Ito, did an extraordinary amount, plenty to try to get the system to recognize it, but none of us did enough against that obliviousness. And against that obliviousness, Aaron faced it with a certain earnestness, a certain brilliance, a certain utter simplicity, asking the question, why? "Could it really be true that this is what was going to happen to me because of a few scripts and breaking a few rules?" And he asked us as citizens to explain why, how could we justify this?
His final law: We must find, we all must find a way to inspire in all of us a recognition of the supertaster everywhere. A recognition of when these institutions find their way into this corner, that we have the obligation as citizens to pull them back. To say, "Enough."
I think it was 21 years into my life before I did anything that Aaron Swartz would have been proud of. But when I was 21, I did something I’m sure he would have been proud of. A young Republican that I was – he wouldn’t have been proud of that part, but okay – I decided to travel to the former Soviet republics – I mean to the Soviet republics, this was 1982 – and to Eastern Europe, to explore communism, to understand it. And I kept a diary. There were no blogs back then, but I kept a diary. And I recorded the facts that struck me as the fundamental difference between these societies.
So, for example, there was the difference of lotteries. We had no lotteries in the United States then. They had lotteries throughout Eastern Europe and the Soviet Union then. People were obsessed with lotteries. That’s the way they were going to make it – lotteries! And I wrote self-righteously in my book, “In America we make it by working hard, not by lotteries.”
The second point I remember remarking was, I almost got arrested because as I crossed the border they told me to take off my shoes. I said, "This is barbaric! I’m not taking off my shoes! That’s ridiculous!" And somebody told me, "You can’t disagree with the people at the border. You’re going to get arrested. You have to take – " So I took off my shoes.
But the next two are directly relevant. I want you to think about them as you think about this case. The third was a professor in the Soviet Union who said to me, “You know, the Soviet Union is not so bad. It’s not so bad. As long as you stay on the straight and narrow, everything is fine. You take one step off the cliff, you fall into oblivion, but stay on the straight and narrow, everything is fine.” And the second image, an overwhelming image, was on a bus traveling to Romania, long lines, it was going to take an hour to get across the border. And way up in front I could see a truck carrying geese. The truck hit a bump. The back opened up and the geese all fell out. And I pointed out, “There’s geese, look, all over the road.” But the line, which had been moving methodically, was not about to stop for these geese. And so the line of trucks and buses just rolled over these geese. No one stopped. No one hesitated. And I in my kind of frantic Americanesque way, “Look! Look! Look!” People looked at me, “What’s the matter with you? It’s just geese.” Look at the cliff, and the geese.
Now obviously the United States is not the USSR. But is the United States America?
It’s not surprising that it was a Romanian immigrant who noticed that there was something bizarre about trusting the government to tell the difference between minor and major prosecutions. As he said, “We shouldn’t have to live at the mercy of our local prosecutor.” Is the United States America anymore?
After Aaron died, a friend of his and mine who had known him for as long as I knew him, wrote me, a German filmmaker, a German filmmaker wrote me an e-mail, and he said, “Aaron was a victim of a strangely fascistic spirit that has developed in America over the past decade or so. Die Andersdenkenden are being destroyed without mercy. As if mercy was somehow a sign of weakness.” Die Andersdenkenden, which translates roughly as “those who think differently.” Now it would have been the last thing in the world that Aaron Swartz would have wanted to be linked to a commercial by Apple. [audience laughter] Not because he hated Apple products – he was a total Apple nerd – but because that company seems increasingly to stand for none of the values that Aaron celebrated or fought for. But Aaron would recognize the sweet and sad irony of us living in a time where the only place we can celebrate those who think different is in a television ad from a company whose image of the Internet is me.com.
Why just there? Why do we even allow it there? If this is America, if this is America, we need to protect that right, that right to think differently of all of us. We need to protect it here, and we need to fight for it, by holding accountable those who would crush the soul of a boy like this and defend it as “appropriate.”
Forget think different. Think Aaron. Think of what we did to him, and think of the laws that we must enact to make it right. Thank you very much.
Lawrence Lessig: Thank you. So I’m happy to take a couple of questions. And I see my contract students here, so I can just cold call on them. Schuman! You! (laughs)
(turns to other side of room) Yes, sir.
Audience member #1: So, thanks, Larry, for your work with Aaron and for honoring his legacy in the way that you are. I have two things that I’m interested in. One is, you said that Aaron was arrested in Building 16. There is an account of his having been pursued down Mass Ave by an MIT campus police officer and a Secret Service agent, and I would be interested to hear you talk about how the Secret Service came to be involved in this and why. And the second thing is, Hal Abelson, who you mentioned in your lecture, has been asked to do an internal investigation by the president of MIT, and I’d be interested to hear your comments on whatever you may have to say about MIT’s role in this and culpability. I know it would be preliminary, but. Thank you.
Lawrence Lessig: Yeah, so, yeah, I think I misspoke about the framing of 16. 16 is where it happened. He actually did some other work in a student dorm I think after that, but it was the activity at 16 that was the core of the indictment. He was arrested on Mass Ave, as I understand. So you’re right about that. About the – uh. About Hal Abelson and MIT. Look, I think MIT is going to face some very difficult questions as it comes to recognize what happened here. I think they behaved extraordinarily badly. I mean, when we were talking about this case originally, trying to figure out how to defuse the bomb, the hard question for us was JSTOR. How would we get JSTOR to understand this case? And, I don’t know if I’m allowed to say this, so don’t tell anybody, but, you know, Palfrey was central in calling the head of JSTOR and saying, “Look at what happened. Look what this is about.” And JSTOR quickly backed away. And when that happened I was certain the case was going to go away. Because this is MIT, for God’s sake! It is where hacking is celebrated. It is where Richard Stallman lives! How could MIT be a place that continued to press in this? But they didn’t. They refused. Now. Saying that, I do want to say that the most astonishing thing to me after this happened was how quickly MIT came around to say, “Look, we’re going to look at this very seriously, and there is no better person at MIT to look at it than Hal Abelson.” I have known him for longer than Aaron and I trust him that he will give the right answer and MIT I think will do the right thing. And it was in contrast between what MIT did and what the government did that made me so angry and frustrated about this case, because it’s not as if the government even said for a moment, “We’re going to look at it. We’re going to think about it. We’re going to think about it.” They said immediately it was appropriate. “It was appropriate. Shut up, it was appropriate.” You know, now, the reaction of the world suggests the government lives on Mars and they don’t recognize this, and this is the question, like, you know, how do we bring them back down? And, you know, Judge Gertner very quickly sort of gave us a sense of her own recognition of the reason for this gap inside of a prosecutor’s office. I think we need more conversation like that. Because prosecutors have no liability for what they do. None. We give them complete immunity. And if we give them complete immunity, we need ways, culturally, for us to pull them back and to be able to say, “Can you really justify what you’re doing? Something more than just a way to make progress inside your career."
Audience member #1: And how did the Secret Service come to be involved?
Lawrence Lessig: Oh, that’s another good – you know, I actually think that if there’s a major computer, you know, issue, it’s completely appropriate in the first moment to be as careful as you can to figure out what’s going on. Look, there are a lot of really bad people abusing computer networks for all sorts of terrible reasons. So I think it’s fine the Secret Service – I don’t know exactly all the things they do, you know, the president was safe, maybe they figured they could look at this problem, but, you know, whoever, I don’t care if in the first round you are as careful as you can to make sure there isn’t really a serious imminent threat of some real damage being done. But that again is the thing that drove me nuts about this case. The more they knew, the more hardened they became. As opposed to, “Oh, okay. We realize this is not a bin Laden escapade, this is not some guy trying to bring down the government or steal Citibank’s credit card information or reveal all the secrets of nuclear testing that might be held at MIT,” none of that. Instead of saying that and then therefore saying, “Okay, now let’s find a way to slap him on the wrist and move on,” they said, “No, we’re going to make this a serious case.” And they go from four charged indictments to 13, and they continue to insist he will have jail time and be named a felon.
Audience member #2: Thank you for this wonderful and inspiring speech. My question touches quite a bit upon what you were just speaking about, which has to do with prosecutorial discretion. You mention in your speech that a friend of yours had said that this has become a greater problem perhaps over the past 10 years, but I actually found myself reading a journal article that was released in 2001 that bemoans the fact that prosecutorial discretion and the problem of expansive laws and in fact ever-expanding laws are something that has eclipsed the legal journalism as it applies to criminal law. It’s indeed a very longstanding issue. So, what are we to do about the deeper issues here, particularly those people who unlike Aaron don’t have some of the best legal faculty to speak out on their behalf?
Lawrence Lessig: Right. So there are two separate issues going on here. One is the general issue of prosecutorial discretion. And again I make another plug for Charles Ogletree’s event on March – 6th? Because Tree is as expert in the general question of prosecutorial misconduct or overreach as anyone. So that will be a fantastic context in which to think of this problem generally. But the particular problem that I think we can distinguish from that is the way in which computer laws are being framed. Right? So, it’s the fact that to make yourself a civil disobedient here is to throw yourself off the cliff, as opposed to expose yourself to 30 days in jail because you sat down at a lunch counter. And it’s the extremism here that I think originally might have been justified in the context of "We don’t know about computers, let's just say everything is illegal and then we’ll trust the prosecutor." But now that we know we can’t trust the prosecutor, we’ve got to think carefully about how to carve back the extremism. So, Aaron’s Law, the draft that Zoe Lofgren has pushed, would do a significant amount of that. It’s now got some strong opposition from some tech companies who want to be able to turn their terms of service contract into a felony if it’s breached, but I think we'll be able to resist that. And so that would be important progress. Yochai has suggested a way of approaching this that tries to identify a kind of activity that would clearly be marked as a misdemeanor as opposed to a felony, which would completely change the character of this. I think there are a lot of things we have to think about about how to make computer law more realistic as well as think about how do we make prosecutors more responsive to this underlying principle, a principle as important to us as to any other democracy, of proportionality.
Audience member #3: Professor, for those of us who are lost in it's clear the ways in which we act in the role of being lawyers is to make this problem worse, whether as prosecutors, whether in some cases as lawmakers, and there are very few ways where it seems apparent how we can make it better. Do you see any avenues for action – you know, for law students, for future lawyers, to really work to correct this, you know, beyond that, you know, general capacity we all have as active citizens?
Lawrence Lessig: So, I’m a law professor because I think the law has enormous potential to do good, and that lawyers, especially American lawyers, trained in the way we are, have an enormous potential to do good. But it takes a certain courage, which simultaneously our legal culture tries to drive out of us. The courage to put your head up and say, “No way. This is wrong. This is just wrong.” Now, I do think there’s a way in which law students and lawyers can develop the strength in order to do exactly that. One is to tell stories about people who do it, who are willing to do it. Another is to encourage and to protect people who do it. But I think that this is a general problem. It’s a general problem of morality. At the Safra Center for Ethics, this is a feature or a bug of the thing we call institutional corruption, people who become complicit in a system that is not driving to the objective of the system but is driving to something else, usually private financial gain. So there will be a million opportunities for you between now and the time you retire to do the right thing or to do the easy thing. And if you do the right thing too much, you might retire too early – I get that, I understand that. I mean, you’ve got to pick your fights. But you need to pick fights. You need to decide, who am I going to be? You know, I – for the rest of my life, for the rest of my life, it will be that quizzical smirk of this kid looking at me and saying, “Yeah, as an academic, but as a citizen?” that will force me in everything I do to think. We’re paid enough to afford to be able to do what’s right. We have to do that. That’s the only – and we especially, this is the only profession that has this at its core of an ideal. So yes, you can and you should and I hope you will.
Audience member #4: I'm going to ask a related question to the question which you were just asked. I notice that nine years ago MIT for the first time got a general counsel and set up an Office of General Counsel, and in the last case in which I represented an MIT student it was obvious that it was the lawyers who were running the prosecution of the student rather than any faculty members. My question to you is whether my sense that the universities have been taken over by the lawyers, the general counsel, and no longer run by the educators, might have something to do with MIT’s attitude. I can’t wait to see the Abelson report, but I have a sneaking suspicion that will be part of the answer. And so lawyers, I agree with what you just said, lawyers can be part of the answer and the solution, but I also think they’re a huge part of the problem.
Lawrence Lessig: Some. Maybe. I think the Abelson report is [going to give us] a more complicated set of responsibility. It is true, the faculty has stepped back from taking responsibility at MIT for decisions like prosecution decisions, but it’s not so much that lawyers have taken over as that the security division has taken over, the police themselves, the MIT police. So, there’s going to be a question of responsibility, and I’m the first to jump on lawyers, but I’m also the first to say that this is the pool we have of people who can articulate reasons why what we need to do is better than what we’ve done.
Let’s take one last question.
Audience member #5: I wanted to go the third law that you proposed, because I think it is really frustrating to do social justice work and to see things overturned and to see the massive pile of money that looms on the other side, and even, you know, in Massachusetts we had the clean elections law and then that was overturned, and attempts to change the redistricting also never happened, and it’s because the people that we already have in there are benefiting from the current system, even if they pay lip service to how much they might despise it. And so I was wondering if you could expand a little bit on how you think we might get around the chicken-and-egg problem with campaign finance.
Lawrence Lessig: Yeah, so, the complete rationalist in me says, you know, the odds of us winning? Almost exactly zero. Almost exactly zero. Because the enormous benefit to the insiders of this system can only be overcome if you have political power equally as strong. And the problem is all the political power is inside that system, right? So what’s our resource? And so when I think of this in a completely rational way, you know, I wouldn’t suggest anybody spend any of your time working on this issue. [audience murmur]
Audience member #5: Too late.
Lawrence Lessig: So why do I spend all of my time working on this issue? [audience laughter] So this is a story I’ve told a bunch of times. Let me just tell it one last time, and then... So, I write about this in my book. I was speaking at Dartmouth. A woman said to me, “Professor, you’ve convinced me. You’ve convinced me. This is completely hopeless. There’s nothing we can do.” And as I wrote in my book, when she said that, I had an image in my head of my kid, who then was about 6. And I thought, what if a doctor came to me and said, “Your son has terminal brain cancer and there’s nothing you can do.” Would I do nothing? You know, obviously no. You’d do everything. You’d do everything. You know, and that is what love means. Right? That’s what love means. It means working, acting fiercely against the odds. And then my next thought was, you know, even we liberals love our country. [audience laughter] And so this observation of the impossibility of this challenge is irrelevant, because we love. And we love means we act regardless of how impossible this is. But because of this – and that is, I think, the – that is the emotion that we need to find here. And for me, it really is deeply tied up with love, not just a country of us, kids, you look at these kids, three of them, in my life, handing over a world that is miles below the world that I inherited from my parents. And no hope for fixing this until we fix this problem. So, yeah, it’s hopeless. It’s just the only fight we have. Only fight we have.
Thanks very much.