A summary of Lawrence Lessig’s Chair Lecture at Harvard Law School

“Aaron’s Laws: Law and Justice in a Digital Age”

Feb. 19, 2013

Watch the lecture here: http://www.youtube.com/watch?v=9HAw1i4gOU4&feature=youtu.be.

PLEASE WATCH IT

Professor Larry Lessig, the most famous legal scholar of the internet gave his chair lecture today in Harvard Law’s Ames Courtroom, which was packed with students, professors, and community members.  Lessig was a close personal friend and mentor to Aaron Swartz, the brilliant young cyber-thinker who committed suicide last month in the midst of what most have considered the overly aggressive prosecution of him by the U.S. Attorney for the District of Massachusetts, Carmen Ortiz. The tragedy has sparked widespread calls for reform of the Computer Fraud and Abuse Act (CFAA), under which Swartz was being prosecuted, and limits on prosecutorial discretion in general.  Some on the left have expressed dismay that the suicide of a wealthy white academic has prompted such outrage when aggressive prosecution is a daily occurrence in minority communities.  Others have jumped into the fray, seeing a rare opportunity to push for reform.  For just one look into the response to his death the New York Times has a good article here: http://www.nytimes.com/2013/01/14/technology/aaron-swartz-a-data-crusader-and-now-a-cause.html?pagewanted=all

Lessig started out saying that he had planed to speak on corruption, but that Swartz’s suicide left him with no option but to change the topic to Aaron’s law, which he says is beyond his expertise and which he can address not as an academic, but only as a citizen.  Lessig had known him for 12 years, explaining that his experience mentoring Aaron was “his first experience being a father.”  Showing excerpts from the blog Swartz kept during his one year (or so) at Stanford, Lessig showed him as a sweet child, free thinker, and an idealist who touched and inspired many people when he founded about 10 non-profits devoted to free information and social justice.

“At the center of [Aaron’s] struggle is and was copyright.  In the debate between people who are pro and anti copyright, Aaron was on neither side.”  Rather, he opposed “dumb copyright.”  A perfect example was Swartz’s efforts to liberate data from PACER the database of public court records, which charged 8 cents a page.  He was not violating copyright, technical restraints, terms of service or any other prohibitions.  He had found a loophole.  “A loophole for public good” as opposed to the loopholes used for private gain by lobbyists and tax lawyers.  Swartz did the same thing with the government’s database of issued copyrights.  The PACER project got Aaron FBI surveillance; the copyright project, on the other hand, was met with approval by the Copyright Office.  Using all this as proof Lessig continued to emphasize that Aaron was a hacker.  He defines “hacker” as one who uses technical knowledge to make a better world.

According to Lessig, Aaron was his mentor, not the other way around.  The two worked together, upon Aaron’s insistence, on anti-corruption campaign for a while before they split again: while Aaron wanted to turn Barrack Obama into Elizabeth Warren, Lessig wanted Obama to pick up the fight with corruption he had promised in 2008.  Without that fight, the defenders of the status quo would defeat real change.

However, in the saga of the two crusaders, the COICA (Combat Online Infringements and Counterfeits Act) drew them back into fights about copyright, a la Al Pacino and George Costanza.  And Aaron’s Demand Progress, with massive help from Wikipedia, Craigslist, Reddit and more killed SOPA and PIPA.  What Aaron saw in that win was not just a victory for copyright law, but a victory for grassroots political activism against the money of Hollywood.

Then the talk moved to arrest and prosecution.

Aaron had “broken into a restricted computer wiring closet,” by turning the door knob; “accessed MIT’s [famously open] server without authorization;” he accessed “JSTOR’s archive of digitized digital articles,” which as a fellow at Harvard he had the right to do; he concealed his identity, by covering his face with a bike helmet; he “downloaded a large portion of JSTOR’s archive.”  The story behind his motivation is available here: http://www.newrepublic.com/article/112418/aaron-swartz-suicide-why-he-broke-jstor-and-mit# Aaron was, in short, horrified by the restriction of free academic articles to the “knowledge elite” at US universities and started Guerrilla Open Access Manifesto.  He started a campaign urging people to obtain electronic copies of articles and publish them online.  He would publish online anything sent to him and advocated “some shell-scripting and breaking a couple rules” to free information.  It was, to him, civil disobedience.  In order to protect Lessig, who though he agreed with the goal, but disagreed with his tactic of civil disobedience (or at least had misgivings about it), Aaron set is MIT project at MIT rather than at Harvard.

Aaron was charged with 13 felonies, which could carry up to 35 years in jail.  What he did was not obviously not a crime.  But it was not obviously a crime either.  Now, the law.

Was this about copyright?  It triggered copyright.  But neither the indictment nor the superseding indictment mentioned copyright infringement.  This is because JSTOR would not cooperate with a copyright prosecution.

So we’re left with the CFAA.  The key point of contention in the CFAA, in this case, is “exceeds authorized access.” Does that phrase apply to hackers, or to people who misuse information to which they have access to.  With the first, you break technical, coded restrictions to get to information.  For the later, you’re breaching contract, the terms of service, to get to the information.  These are felonies.  Can it really be that under the CFAA a breach of contract is a felony violation of the criminal laws of the United States of America?  Judge Kozinski says no: http://cdn.ca9.uscourts.gov/datastore/opinions/2012/04/10/10-10038.pdf   According to Kozinski, violating code, hacking around technical restraints is a felony but violating terms of service, breaching a contract, is not.  But in either case, you’re simply disobeying some words.  Why should the coders’ words be taken more seriously than the lawyers’?  In reality there were several computer tricks back and forth between Aaron and JSTOR, changing and blocking IP and Mac addresses.  In the end, among other things, MIT had all of its access to JSTOR blocked briefly.  And its not clear how his access would have been unauthorized or exceeding authorization.

However, regardless of whether or not Aaron’s access was unauthorized, and harm he caused was very ambiguous.   Sharing the articles on file-sharing networks would not have caused any financial harm for JSTOR.  Which is why they settled.  While Ortiz said that “stealing is stealing whether you use a computer command or a crowbar.”  That’s not true.  Crowbars always cause harm.  Computer code does not.  Lessig says that we need prosecutors who can tell the difference between crowbar like hacking and hacking that does not cause harm, or may not cause harm.  The government “assure[d]” Kozinski that it would not use the CFAA to violate minor violators.  We need prosecutors who stick to that promise.

Lessig’s key point, regarding the “crime” itself is: Whether or not we agree with Aaron, whether or not we thing what he did was right or wrong, we know that what the prosecutor did was wrong.  The prosecutor was wrong to bully Aaron, to play example justice with him, to try to teach him a lesson.

Aaron’s law is great.  But it’s incomplete.  He cannot be boiled down to a hacker, an internet activist or even a political activist.  Rather he was a citizen who acted on a view of what he thought was right.  According to Lessig, we need to make Aaron’s ideas laws.  Aaron’s Laws not Aaron’s Law.

First: Aaron’s Law is great.

Second: we must destroy dumb copy right.  Including overturning the Sonny Bono Copyright Term Extension Act and defeating the Research Works Act, which would forbid the US Government from supporting open access research.

Third: End corruption; end money in politics; give the power back to the people.

Fourth: “Fix the obliviousness that we live our daily life with.”   We have an obligation as citizens to pull back the government when it overreaches.

As Kozinski, the Romanian immigrant said in Nosal, “we should not have to live at the mercy of our local prosecutor.”   While the U.S. is not the U.S.S.R., we must ask whether or not it’s still America.  We must fight for the right to think differently in America.

In the question and answer session, Lessig says that when JSTOR dropped out of the case he thought the case would be over.  While MIT, against everything that everyone expected of him, pressed the case, it is now taking it very seriously.  They have appointed Hal Abelson (http://www.csail.mit.edu/user/1535) to run an internal investigation, who Lessig says is the best man for the job and who he has complete trust in to come to the right answers.

In response to a question about prosecutorial discretion Lessig said that while he will defer to experts on the subject, like Charles Ogletree, on the topic in general.  But he said that we can look at computer laws separately because in the realm of computers to be practice civil disobedience in cyberspace is to step off a cliff: rather than a slap on the wrist, that

The law and lawyers have an enormous potential to do good.  However, it takes a sort of courage that is too often driven out of us.  We must tell stories about, and encourage, and protect those lawyers who do good.  We must decide who we are going to be.  While must we pick our fights, for if we do too much right we might retire too early, we must pick some fights.

As I said, please watch the video.  It is inspiring, moving, emotion and brilliant.