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).
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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.
{ 7 comments… read them below or add one }
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.
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.
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?
Chris: That’s not a federal crime, or even likely a felony. That part’s not being handled in this case at all.
homograph, can you repeat that? There’s nothing in the indictment about the network cabling closet? The indictment only addresses harms to JSTOR?
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.
It would be good to hear specifically what was unethical. Entering the closet and attaching the laptop?
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