Updated, August 9.
In late July, MIT issued its report, written by computer science professor Hal Abelson, on the university's own actions in the Aaron Swartz case. Swartz, an information activist, faced extensive charges for downloading a huge number of academic articles from the online service JSTOR over MIT's network. Swartz committed suicide in January.
In the past week, three respected academics, writers of leading work in digital law, language, and civics, have written about the report: Harvard Law's Larry Lessig, Northwestern's Peter Ludlow, and the director of MIT's Center for Civic Media, Ethan Zuckerman. Their responses are worth reading in full, but we've summarized them below, for they agree on three startling points.
1. Swartz may not have broken the law at all. The weightiest charges filed against Swartz were under the Computer Fraud and Abuse Act (CFAA). The CFAA makes it a crime to gain "unauthorized" access to a computer or network. The prosecution alleged that Swartz's use of the MIT network was "unauthorized." But as Lawrence Lessig writes in the first of two blog posts on the Abelson report:
The report says that MIT never told the prosecutor that Aaron's access was "unauthorized." They indicated that his machine was not supposed to be plugged into the ethernet jack it was plugged into, but there is no law against abusing an ethernet jack. The law regulates authorized access to a network. The whole predicate to the government's case was that Aaron's access to the network was "unauthorized," yet apparently in the many many months during which the government was prosecuting, they were too busy to determine whether indeed, access to the network was "authorized."
Emphasis mine. All three academics emphasize that MIT never told the prosecution or the defense whether Swartz's access of the MIT network was authorized. Was it?
2. MIT posed to a neutrality that could not exist.
Early in the legal process, MIT adopted a neutral stance. But as the power between the defense and the prosecution differed enormously -- one was an activist and his defense team, the other the United States government -- a stance of neutrality could only be tenuously neutral. In the Chronicle of Higher Education, Northwestern University philosophy professor Peter Ludlow argues that the institute's report:
... makes it clear that MIT was at best neutral in a technical sense: "In consequence of the differences in the powers, timing, and goals of the two parties in the case, neutrality in responses was not consistent with neutrality in outcomes." For example, the report argues that MIT "could have automatically supplied the defense with a copy of every document supplied to the prosecution, rather than waiting for a defense subpoena. Similarly, it could have offered a defense interview with every employee interviewed by the prosecution." It failed to do so.
The report also notes that MIT turned over a number of intercepted electronic communications to the prosecution without subpoena, a step that the defense argued was "in violation of the Fourth Amendment and the Stored Communications Act." One can argue about whether MIT violated the law in intercepting and turning over the documents, but it is plainly Orwellian to characterize such actions as "neutral."
Lessig, in a post on the "emptiness" of neutrality, highlights the following passage from the report:
One particularly pertinent moment was in June 2011 when the Media Lab Director [Joi Ito] informed the administration that Aaron Swartz was charged with "unauthorized access" and suggested that MIT would be in a position to cast doubt on this charge if so desired. ...
A charge of "accessing [the MIT network] without authorization or in excess of authorized access" deeply involves MIT, since MIT provides the authorization and sets the rules of authorization. Thus MIT set rules that played a key role in determining what constituted a felony in the Aaron Swartz case.
MIT could never have been neutral, the three men insist, because it alone determined whether Swartz's guilt under the CFAA*. Its neutrality was tacit approval. Ethan Zuckerman, director of MIT's Center for the Civic Media, throws out the word altogether:
According to Abelson's report, MIT's president, chancellor and Office of the General Counsel did the minimum - and sometimes less than the minimum, when they failed to respond to defense subpoenas - in allowing Aaron Swartz and his team to mount a defense.
3. The MIT community seemed barely interested in the case.
The report strongly suggests, then, that MIT could have intervened in the case and potentially ensured Swartz's successful defense. Why did it not? In the report, Ludlow finds the following "amazing" paragraph:
In considering whether to maintain MIT's neutrality position, OGC [MIT's Office of General Counsel], and the faculty members and others it questioned about this, began by asking whether Aaron Swartz was an MIT student. Upon learning that he was not, most of the people consulted agreed that staying neutral was appropriate. Similarly, Aaron Swartz's arrest and prosecution sparked little reaction from the MIT community, including students.
This troubles all three men. "That defense is absurd," writes Lessig:
If MIT knows that a human is being prosecuted on the basis of a false interpretation of MIT's rules, what possible difference does it make whether that human is a student or not? If a MIT official sees someone bleeding on the Mass Ave, do they decide whether to call 911 only after checking for a student card? MIT knew something here that at a minimum could have cut short a prosecution, and which, it turns out, could also have saved someone's life.
Throughout the report, there is a "refrain" that students were simply uninterested in the case. All three men return to it, too. "How is it that the students and faculty at MIT could not understand that this case affected their lives in crucial ways?," asks Ludlow. "All of them could potentially be tripped up by the CFAA in their professional and personal online activities." Zuckerman writes, "I think the report presents MIT with two equally serious charges: a failure to act ethically, and a failure to show compassion."
But compassion, especially in complicated legal matters like these, springs from knowledge. The report ends with rhetorical questions intended for the MIT community:
Does MIT have a responsibility to better prepare our students to grapple with the ethics of the decisions they will face as they go on to design new technologies to be used in the world? Should MIT provide opportunities for students to better understand how to deal with the consequences of their decisions, as part of their technology education?
And Zuckerman insists that he will "push as hard as I can from the inside" to ensure that those questions are not the end of MIT's institutional response to the Swartz case. It's Ludlow who asks the more pressing question, for anyone in an institution, corporate or academic, whose work relies on Internet freedom: If MIT students were not active in the Swartz case, if they could not see the problems of the CFAA, who does?
* The original version of this article read, "MIT could never have been neutral, the three men insist, because it alone determined whether Swartz was guilty of any crime at all."