Larry Lessig Responds – Says Swartz’s Alleged Actions Crossed Ethical Line

by Mike Wendy on July 20, 2011

Earlier this morning, I called out on Larry Lessig to condemn the alleged data theft of Internet activist, Aaron Swartz.  Here is Lessig’s thoughtful response below (seen also here in the comments section of the initial post).


From Larry Lessig’s response:

Thanks for the forum.

An indictment is an allegation. It states facts the government believes it can prove. It isn’t proof of the facts. It is one side in a dispute.

Even if the facts the government alleges are true, I am not sure they constitute a crime. There is considerable uncertainty in this area of the law. Many wonder about the quick conversion of terms-of-service into criminal prosecution. But that’s a question the courts will ultimately have to resolve.

Nonetheless, if the facts are true, even if the law is not clear, I, of course, believe the behavior is ethically wrong. I am a big supporter of changing the law. As my repeated injunctions against illegal file sharing attest, however, I am not a believer in breaking bad laws. I am not even convinced that laws that protect entities like JSTOR are bad. And even if sometimes civil disobedience is appropriate, even then the disobedient disobeys the law and accepts the punishment.

That, however, begs the question of the appropriate punishment. I can’t believe Aaron did this for personal gain. Unlike, say, Wall Street (and what were the penalties they suffered?), this wasn’t behavior designed to make the man rich. Nor, if the allegations are true, was this behavior designed to interfere with any of JSTORs activity. It wasn’t a denial of service. It wasn’t designed to take any facility down.

What it was is unclear. What the law will say about it is even more unclear. What is not unclear, however, to me at least, is the ethical wrong here. I have endless respect for the genius and insight of this extraordinary kid. I cherish his advice and our friendship. But I am sorry if he indeed crossed this line. It is not a line I believe it right to cross, even if it is a line that needs to be redrawn, by better laws better tuned to the times.

txpatriot July 20, 2011 at 11:02 pm

Happy to see Lessing agree that what Swartz did was unethical.

But I’m disappointed that he (like so many others of the free media or free culture movement) tries to draw some kind of moral equivalence between Swartz and Wall Street. If the Wall Street bankers broke any laws they s/b prosecuted to the maximum extent of the law. Whether or not that happens is utterly and totally unrelated to THIS prosecution. Swatz ALSO s/b prosecuted to the maximum extent of the law. Redirecting the discussion toward Wall Street is simply a distraction and does nothing more than confuse the issue.

Whatever the folks on Wall Street did is IRRELEVANT to whether or not Swartz is guilty of a felony.

Steve Wright January 13, 2013 at 6:13 pm

The equivalence is clear. The US government t just decided that HSBC was too big toprosecute. HSBC aactivities have a clear line connecting them to aiding US Gov enemies. Aaron Swartz is a citizen stealing knowledge that that is valuable to Americans and being sequestered from us (even though it is some case exists due togov funding.) Actually, iI guess I agree. They are not morally equivalent. What Aaron did is like a starving family stealing a loaf of bread. What Wall Street did was steal all of the bread so that we starve. What connects them is the US Gov unwaivering support of Wall Street over main st

Julio Huato January 14, 2013 at 2:43 am

I’m not a lawyer, but — living in society — laws and their enforcement as they apply to one individual and alleged infraction are supposed to have nothing to do with how they may apply to others? Aren’t laws supposed to be somehow related to fairness, equity, and the like? How is it fair and equitable to persecute and punish more harshly those whose alleged harm of the public interest is minor by comparison?

tim slavin January 17, 2013 at 5:56 pm

Very true. Also, strictly from a competence/prudence standpoint, Attorney Lessig did not use common sense as a supposed criminal defense lawyer by continuing to publicly post all these comments about the case and his client. They are not beneficial to his client because they certainly won’t change a prosecutor’s mind about charging him, and in fact will only cause the prosecution to be more hardened against him and his client, which will hurt any chance to make a good plea deal. As my old law professor used to say, the world is made up of C+ students, and lawyers are no exception.

Cal Atty January 22, 2013 at 4:09 am

And as I am also sure you heard in law school: A students become professors, B students become judges, and C students make the best lawyers.

Jason July 21, 2011 at 12:59 am

Not quite up on the Swartz stuff, so I won’t comment there. However….

I have a huge problem with someone saying they are not an advocate of breaking a bad law. There is, of course, a slippery slope argument that can be made and I would rather not make it. Suffice it to say, hard-line stances about something as detached from both morals and ethics as laws does not service humankind.

Put another way. laws can and do change overnight, making a previously legal activity illegal and vise versa. However, when a law changes, it DOES NOT change the ethical or moral nature of the issue pertained in the law; the moral and ethics of law are universal.

So, a bad law, by the very nature of what it is, sometimes requires that moral and/or ethical people do not abide by it. They may be breaking the law, but they are still doing what is morally or ethically correct. Law _should_ try to encompass ethics, and to a lesser extent, morals, and when the laws, which are tools, fail us, we should evolve.

db January 12, 2013 at 11:32 pm

Thank you for going directly to the crux of the matter, Jason.

Oliver January 15, 2013 at 3:40 am

Strictly I think what you say is wrong, because if you believe in the government that enacted properly a bad law, it’s wrong to break that law. How wrong? It depends. Probably not so wrong as to outweigh the wrong of obeying the law in a case where the moral stakes are high, but probably wrong enough to outweigh breaking an innocuously bad law. Why don’t we all drive at whatever speed we deem safe? Laws are good, scofflaw-ism is bad.

Cal Atty January 22, 2013 at 4:27 am

Yes, just as harboring- or transporting- slaves in/to free states was against the law; smuggling Jews out of Nazi Germany into this country was against the law; sitting in the front of a bus or in a white section of a restaurant or dating/marrying a white person if you were black south of Mason-Dixon was against the law; talking to someone about contraception was against the law; speaking to the media about the government lying to its citizens is STILL against the law (in many cases); filming the police in public places while discharging their public duties was (and in some places still is) against the law; incarcerating and stealing the property of Americans because they were of Japanese ancestry was against the law (oh wait…that WAS the law); having consensual oral sex or sodomy in one’s own home was against the law; publicly criticizing the government or its leaders or agents was against the law, etc. Yes, Oliver, there are bad laws, and some bad laws are meant to be broken. I don’t know all the particulars of this case, admittedly. However, I do find a false equivalency in your speed laws argument. Speed laws affect public safety by their very definition and legislative history. I don’t see any scenario where downloading (stealing?) academic papers otherwise offered to the public- and where the alleged victim desires no prosecution, by my understanding- for the dissemination to the public in any way threatens public safety. The crimes of Wall St., conversely, quite obviously threatened the public well-being. So yes, in my opinion, the author’s comparison is very much the valid point.

Chris Spurgeon July 21, 2011 at 1:02 am

Just for the sake of argument forget the actual file copying. The indictment also says that he sneaked into a network cabling closet on the MIT campus, set up a laptop in there, jacked in to the network, and left it running to snag all of those files. If I was the MIT IT folks I’d want to throw the book at him for THAT. What the hell you doing in my wiring closet, boy?

homograph July 21, 2011 at 7:20 pm

Chris: That’s not a federal crime, or even likely a felony. That part’s not being handled in this case at all.

Lucas Gonze July 21, 2011 at 9:01 pm

homograph, can you repeat that? There’s nothing in the indictment about the network cabling closet? The indictment only addresses harms to JSTOR?

homograph July 24, 2011 at 10:26 pm

Lucas: Yes; it’s mentioned in support of Wire Fraud, etc, but there’s no charges associated with the alleged break-in itself. That’s not a federal crime. JSTOR and MIT’s network (maybe), but not their physical premises.

Cal Atty January 22, 2013 at 4:32 am

Homograph, are/were you just as up in arms about the government, with corporate collusion, tapping into your phones/internet activity without a warrant or any evidence of commission of a crime? Or is that different because it’s the government and they are here to help?

Seth Johnson August 6, 2011 at 10:19 pm

It would be good to hear specifically what was unethical. Entering the closet and attaching the laptop?

Chris Castle May 27, 2012 at 7:11 pm

“Kid”? Swartz is a “kid”? He’s 26 years old. He’s not a kid. You know who’s a kid?

PFC Jake W. Suter, USMC KIA Helmand Province.

18 years old. Died so Swartz could be a “kid”.

db January 12, 2013 at 11:35 pm

talk about a nonsequitur!

Dave January 12, 2013 at 11:49 pm

He didn’t die so Swartz could be a kid. He died because he was in the military. He knew the risks that the occupation entails, the risk and probability of both killing and being killed. The last thing he was risking was fighting for our freedom.
Either way, it’s completely unrelated to Swartz. I’m really not sure why you would ever bring that up.

Nick January 13, 2013 at 10:20 pm

Actually, 26 is a kid.
Died so that Swartz could be a “kid”.?

Is that some kind of powerful statement? Are you saying that the kid died, specifically, for Aaron? In place of Aaron?

He wasn’t a volunteer solider, serving in the armed forces in the occupation/stabilization of another country? Where he was sent by the government?

If we are going to commingle issues, let’s commingle them fully.

Sandra Smith January 12, 2013 at 8:48 pm

Although I was a criminal lawyer for a long time, I’m left scratching my head about how downloading someone’s article is a federal crime. Did he publish it as his own writing? That might be a violation of copyright law, but that’s usually a subject of civil litigation. Seems a trespass my have occurred, but MIT isn’t federal property. A privacy violation? Feds violate our privacy all the time. Why is Eric Holder allowed to stay on as Attorney General if this is how he’s using the resources of the Dept. of. Justice?

Cal Atty January 22, 2013 at 4:35 am

Sandra, thank you. That is exactly what I have been wondering, too. Although, what I have not been wondering about is prosecutors losing their moral compass and getting tunnel vision on career advancement, convictions, and winning, Winning, WINNING! That is not a mystery at all.

Gijs Peskens January 12, 2013 at 9:10 pm

Essentially you are saying that black people should’ve just got off the bus.

Bad laws are meant to be broken, it’s called civil disobediance

Sandra Smith January 12, 2013 at 9:13 pm

What on earth is JSTOR and why is private university MIT partners with them?

Spencer Reed January 13, 2013 at 3:08 am

In brief: JSTOR is, essentially, a paid service which is a database of millions of research articles. These articles may be available elsewhere, but JSTOR (and similar services) are much easier and provide much wider access to such articles, which are often necessary for research or citations. That’s why universities like MIT are associated with them; they pay a large amount of money to subscribe, allowing them access to the database. Aaron Swartz believed this system of forcing people to pay for information is unethical. For information on his views, here’s a link to his “Guerilla Open Access Manifesto,” a document which explains why he thinks it’s wrong and what should be done:
He was attempting to download as many of the articles as possible, in order to upload them to a file sharing site and take away the monopoly on this information that is currently held by JSTOR and similar services, giving free access to anyone and everyone. JSTOR did not wish to pursue civil litigation against him; the legal action taken was taken by government prosecutors in relation to his unauthorized access of a secured computer system, under the Computer Fraud and Abuse Act.

Of course, this is all effectively a moot point now. If anyone reading this hasn’t heard, Aaron died yesterday. He was facing up to 50 years in prison and $4 million in fines if he was convicted. Family and friends created a site as a memorial to him:

RIP, Aaron.

CA January 13, 2013 at 5:24 am

If you bother to visit, then you’ll know what JSTOR is.
When you mention MIT being ‘partners’ with them, what do you mean? Like many academic institutions, MIT probably partners them in terms of subscribing to their published content.
My university all the way in Sydney subscribes to JSTOR. Many universities do.

Eli Rabett January 13, 2013 at 12:57 am

So who were the federal prosecutors who engaged in this shocking behavior? They need to be named? The Times names one as Carmen M. Ortiz.

This is also probably a good topic for a petition to the White House asking why this case was pursued in this way. Out of control prosecutors need to suffer oprobrium.

Prosecute Harvard January 13, 2013 at 7:39 am

Instead of lapping at the cream, the DOJ should have taken a big bite out of that malevolent crime-ridden thing called Harvard.

Cal Atty January 22, 2013 at 4:37 am

I’ll settle for Wall St.

Patrick Gibbs January 13, 2013 at 8:27 am
Steven January 13, 2013 at 8:59 am

Chris, the ultimate tragedy, is that the 18 year old died for no such thing. That anyone, anywhere, is still naive enough to believe that U.S. soldiers in Iraq, Afghanistan, Pakistan, Yemen, (or anywhere else abroad for that matter), are dying for our “freedoms” never ceases to amaze. If you want to give his death weight, give it the weight it deserves: The kid died in a war of empire for a self-interested ruling class who would scarcely risk a hair on their own heads. He’s dead, and he shouldn’t be. There is literally no good reason for him to be 18 and dead. That is all there is to it.

Cal Atty January 22, 2013 at 4:40 am

Hear hear! I am an Army infantry veteran and agree wholeheartedly. You should read “War is a Racket” by Gen. Smedley Butler, USMC, if you haven’t already. That very short book should be required reading in every high school history class.

Orange County Attorney February 23, 2013 at 12:23 am

Well said. This point just is not made enough. We are led to praise our soldiers for fighting for our “freedom”, and it is an outright lie. The soldiers die protecting the assets of the wealthy 10% of America, who in reality could care less for these brave men and women. We all know that the soldiers dying on the battlefield are really fighting just to save each other, as brothers and sisters cast in harm’s way by the wealthy.

iain baker January 13, 2013 at 10:34 am

Chris Castle: your a moron. No one in Iraq or Afghanistan is fighting for the rights of the people of America, Britain or anywhere else outside the country they are fighting in.
The British and American troops in Afghanistan are fighting to ensure the security of the training teams that are working to establish a stable Afghan lead Afghanistan. If they did not do that the American trained Taliban would opress the afghan people. Not the American people.

Talk about an irrelevant comment designed to distract from the… At least the wall Street comparison was vaguely relevant

Jackson Perrine January 18, 2013 at 10:19 pm

The deaths of PFC Suter and Mr. Swartz are equally tragic. The elite among you may quarrel with the notion that PFC Suter died to preserve Mr. Swartz’ freedom, but as you did not know him, you cannot speak to his motives for joining the Marines or his willingness to thereby be put into harms way. Maybe he just needed the job. Or maybe he believed that he was serving the cause of freedom and did so proudly without regard to what it might cost him. Nor can those who criticize Mr. Swartz’ conduct speak with any authority regarding his intentions. Maybe he was just some bratty kid, trying to show everyone just how smart he was. Or maybe he believed in the democracy of knowledge and felt compelled to act on that belief, although he was certainly unaware of what it would ultimately cost him. Two young men. Such a waste!

Cal Atty January 22, 2013 at 4:42 am

Or maybe he was fighting for his survival and the survival of his squad, and don’t you give him anything less.

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