Aaron Swartz and the right of free access to information

Dave Scotese — The tragic death of Aaron Swartz made far less news in mainstream media than one would expect. The general belief about this activist is that he stood for making academic information available for free to all and that there should be no censorship on the internet. Green Heritage News asked me to discuss whether he was right and what role intellectual property plays in this analysis.

[caption id="attachment_17925" align="alignright" width="318"] Aaron Swartz[/caption]

I don't know the theory behind the position that academic research should be free to all because its cost is a "public expense". I have a hard time agreeing with this position simply because I recognize "public expense" is a euphemism for the proceeds of the institutionalized theft people call "taxation". However, for those who have no moral qualms about such theft, the claim they make (and which Aaron made, as far as I know) is very reasonable: The information produced from such expenditures belongs to the public and should therefore be available to the public for free. We bought it, so we own it, and anyone trying to prevent us from accessing it is behaving badly.

The tools and ease with which someone from the public accesses this information that he or she owns (along with everyone else) are a different story. Some may claim that JSTOR provided a valuable indexing service and ought to be compensated for it. I agree that a valuable indexing service provider should be compensated for its efforts, but when it has a monopoly on access to the information it indexes, the argument fails miserably. In the end, JSTOR finally did what Swartz urged them to all along (and what he did for them through stealth while they insisted on not doing it), perhaps in recognition that their position was immoral (blocking access until a member of the public PAID for information already owned by the public).

Free access to information is also intimately related to censorship on the internet, which is what Swartz is said to have stood against. We might ask what kind of censorship should be allowed on internet and what kind of information be protected as private.

Any kind of censorship should be allowed as long it is enforced without violating anyone's rights. Unfortunately, enforcing censorship without violating rights is nearly impossible. I censor myself without violence, as do most people, but when someone else (Swartz, Assange, The Tenth Amendment Center, FIJA, members of The Free State Project, etc.) is able to release information that someone (the government, a business like JSTOR or Monsanto, or a politician like Obama or Bush) has a reason to hide (profit motive, or perhaps fear of retaliation from the masses), "censorship" is just a euphemism for all kinds of violence, such as imprisonment (Assange, Manning), harassment (Swartz), fines, vengeful prosecution (Peter E. Hendrickson), and property confiscation.

On the point of hacking into computers and stealing academic information, it is important to recognize that as time goes by, what is legal and what is moral grow further and further apart. Schools teach students that following the law is the essence of the conscience. This has horrible effects. Since governments survive on the acquiescence of their victims, they learn early in life the clever Judo skill of using the enemy's efforts against him. Swartz may have realized that his situation was providing the government with fodder for its efforts to quell the modern trend toward agorism. In fact, as government regulation continues to increase in both breadth and depth, it becomes less important to fight it and more important to simply ignore it. Cuba is an excellent example of how black markets can fill in the holes created by rampant authoritarian control.

It is interesting that Swartz's case was called "United States vs Aaron Swartz." Was it really an entire nation against a sole citizen? In legal terms "The United States vs X" does not mean X has offended the entire nation. Often, the crime X has committed is a "victimless crime." When a government creates laws that criminalize behaviors that harm no one, then the cases it prosecutes to pass sentence on those who break such laws are described this way. So obviously, the description has little to do with the actual people of the nation and much more to do with the government itself.

But the biggest question in this case undoubtedly is whether Swartz died as a hero or a coward. Most people will not come to their own conclusion on the question of whether Swartz died a hero or a coward. Rather, they will allow others to make this decision for them. In an effort to forestall this tragic lack of self-worth and confidence in one’s own judgments, I'll provide arguments from both sides in order to drive my lazier readers to frustration with their own lack of effort, and to leave open the path to agreement with my more astute and resourceful readers regardless which side their judgment falls on.

On one hand, Swartz allegedly gave up in the midst of an important display of state depravity. Had Gandhi or John Lennon committed suicide because of the frustration they felt with the systems against which they were working, the world would be a far worse place. On the other hand, he may have been conveniently terminated through an apparent suicide in order to prevent some of his better arguments from becoming more widely known, or he may have determined that his personal existence had become a stumbling block for a movement that was more important to him than his own life.

As a voluntaryist, it is important to me to recognize the evil created and promulgated by the publicly acceptable coercive actions of government. Swartz's death highlights both the ugly effects of government interference and the extremes to which governments go in the direction of inhumanity. He was a hero before he died because of what he was fighting for, and one act of cowardice before his death, if that be what killed him, can't undo all the heroic things he accomplished.

 

About the Author

Dave Scotese is a software consultant, writer, founder of the literary community Litmocracy, and the webmaster for http://www.voluntaryist.com. 

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Aaron Swartz: A legacy left in our hands

Craig Kyzar — From a tender age, Aaron Swartz was saddled with the expectation of a true pioneer and all the pressures of a contemporary folk hero. His technical-savvy quality made him a dot-com millionaire, while his unwavering commitment to the notion of universally free information elevated him to the ranks of digital demi-god … or virtual villain, depending on one’s perspective. As an Internet enthusiast, his rebellious ascendance makes him a remarkably compelling subject.

[caption id="attachment_17925" align="alignright" width="254"] Aaron Swartz[/caption]

From a legal viewpoint, however, the Aaron Swartz issue becomes a particularly tough one to navigate. More than anything, this is due to the sharp discrepancy between the need for reasoned legal analysis on one side and the blind desire of many to champion a modern-day Robin Hood on the other. To be very clear, the untimely end of any life, young or old, will always harbor tragedy. But when the act of a single suicide prompts such widespread calls for legal reform, we enter a different realm entirely… and not always for the better.

From the moment word broke of his death on the morning of January 11, many supporters were all too prepared to brand Mr. Swartz a martyr and weaponize his death as an instrument for legal and political reform. Those who had hailed him as a larger-than-life visionary hero just days earlier now absolved him of the very free will exercised in the taking of his own life… preferring instead to frame his final conscious act as that of a defenseless drone, too weak to fight, and effectively killed by the ulterior motives of a vindictive government machine. But why? Have they done so for Aaron’s sake… or for their own?

Should we be angry over the death of Aaron Swartz? Hell yes. In many ways, his persecution seems symptomatic of far deeper fractures in the existing system. But we should also be conscious to honor the memory of a pioneering spirit rather than rendering such a unique mind a mere victim for the sake of a quick political benefit.

In January 2011, Mr. Swartz was arrested and charged with numerous federal violations of the Computer Fraud and Abuse Act (CFAA) – primarily the unauthorized use of a computer used for interstate commerce. His offense: the alleged unauthorized physical entry into an area from which he had been repeatedly forbidden and the use of a self-written computer program capable of downloading massive amounts of copyrighted academic material from the JSTOR database. His stated intent, which never came to pass, was to freely distribute these materials at a later date. By statute, the charges carried a maximum penalty of thirty-five years in prison.

The CFAA has long been criticized as dangerously over-vague in its language, a fact that Swartz’s most vocal supporters have taken to heart. The truth is, while many still argue over their personal perceptions of the relevant facts in this particular case, we will now never know if federal prosecutors would have met their burden before a judge and jury. However, to infer that the prosecutorial pursuit – as overzealous as it might have been – was an unfounded effort to bully an American citizen into submission without merit is, to say the least, without merit.

Did Swartz’s actions amount to violations of federal law warranting a conviction? This is precisely the question that both parties were preparing to argue before the court. Like any other accused, Swartz maintained every right to present evidence in his defense. Indeed, the evidence against him seems dubious, at best. But to turn Swartz’s conscious decision to end his own life, rather than stand tall and fight for his innocence, into a presumption of federal bullying disrespects both the man and the life. Sympathy is one thing, but when we take that sympathy to the extreme and allow ourselves to presume malice from the process itself, then we undermine the entire integrity of the justice system.

Some contend that a thirty-five year prison sentence is inherently disproportionate to Swartz’s alleged crimes … and any court would assuredly agree. While some suggest the extreme penalty is further evidence of coercion, in reality, Swartz never faced anything close to a statutory maximum sentence for his alleged offenses. Statutory maximums will always seem excessive when viewed through the lens of a specific incident, as they are drafted to encompass even the most egregious violations of the law. Such penalties represent the extremes to which the system may permissibly go, only when warranted by the severity of the crime and the underlying circumstances of the accused. Even had Swartz declined the offered plea bargain and defended himself before the court, the minimal monetary value of the goods in question, coupled with his lack of any prior criminal record, would render the possibility of a lengthy sentence virtually nonexistent.

The problem with widespread misinformation to the contrary is that it is always going to be most readily embraced by those who most desperately wish to embrace it. That is to say, those who would rather rail against the machine than trust in the underlying equity of legal principles… those with the strongest commitment to preconceived activist ideals, to the exclusion of rational discourse… those who turn conspiracy theory and government distrust into sport.

The sad truth is we will never know whether the federal prosecution of Aaron Swartz was fair and justified because he did not see it through to the end, as we all desperately wish he had. Federal prosecutors may very well have been over-eager to pursue this matter, and perhaps even to make an example of Swartz by the only means available to them. Their conduct over the course of the trial would have surely been intensely scrutinized in the court of public opinion. But lost in the outrage is one key factor: Swartz was never convicted. Those who seek to decry government wrongdoing in the filing of charges by arguing his ultimate innocence willfully pervert the process out of anger, not logic.

A finding of “not guilty” after trial should be a vindicating symbol of a system that worked, not a bitter implication that the trial itself was without merit from conception. We as individuals are allowed our opinions, but it is the jury that is charged with the facts. Sadly, in this tragic instance, such a jury will never be assembled. Unfortunately, Swartz’s death now ensures that he will never be acquitted either. In the ensuing purgatory, we have all built our own versions of reality, oftentimes devoid of suitable evidentiary support on either side. We have manufactured our own version of an outcome we deem “inevitable”, colored by our own existing prejudices, and used it to further fuel our disdain.

But for those of us who still believe in the immense power of law to equalize men and remedy injustice, even from within, Swartz’s death is perhaps an even greater tragedy. With properly focused scrutiny, United States v. Swartz could have proved a catalyst for long sought computer crime reform. It would not have been easy; real progress seldom is. But it would have been a more fitting legacy to a man whose commitment and vision truly changed the world. In an age of big talk by small people, Aaron Swartz walked the walk. Perhaps it is time we follow his lead… not by polarizing one man as a modern-day martyr but by rallying together around the ideas that made him great.

About the Author

Craig Kyzar is an award-winning journalist and international attorney. After graduating from NYU Law School and enjoying eight years of legal practice in Manhattan, Craig is now heavily involved in nonprofit work dedicated to enhancing children’s literacy skills and connecting economically disadvantaged youth with a life-changing love of reading. When not frolicking in fiction and playing with poetry, Craig’s editorial columns and articles are regularly featured across several news outlets, providing uniquely provocative views on legal, political and humanitarian issues.