On Aaron Swartz, Justice and Freedom of Speech/Information

January 13, 2013 § 1 Comment

The ideas of free speech and freedom of information are intimately linked, and I’d like to discuss some ways in which to approach them, in light of the tragic death of Aaron Swartz. These issues are complex, and often interact on multiple and often simultaneous levels with other issues such as media, class, race, gender, and other socioeconomic realities, though I won’t explore all of that here. It is unfortunate, but often true, that traumatic events like this often act as galvanizing forces, spurring the conversation and the attempt to remedy problems which would otherwise be set aside for later. Perhaps it’s due to something like procrastination, or the naïve belief that such matters don’t affect us — that is, until they do.

Swartz committed suicide on Friday, January 11th. Although the reasons which provoke a person to inflict his/her own death are complex, multiple and ultimately unfathomable to outsiders, it is reasonable to assume that the deep anxiety caused by the case brought against him by U.S. prosecutors, who, it was announced shortly before his death, insisted on a prison sentence, as well as the substantial amount of money drained as a result, were contributing factors. The family’s statement:

Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death.

Federal prosecutors brought 4 felony charges against Swartz in 2011, adding 9 charges to that in 2012, bringing the total to 13 charges, a rather large weight to bring on such a young man who had essentially engaged in trespassing at MIT and violating the terms of service of JSTOR, an online archive of academic journals which charges a fee for access to articles (although recently JSTOR began experimenting with giving the public free access to limited quantities). Read about the charges here: Feds Charge Activist with 13 Felonies for Rogue Downloading of Academic Articles

A previous “hack” targeted the PACER database, storing information from cases at federal appellate, district and bankruptcy courts —  reflecting the reasonable conviction that the public should have the ability to freely consult the records revealing the workings and logic of an institution which potentially affects it. The nature of his convictions regarding open access to information, the philosophy animating his deeds, and the honesty with which he pursued them — not for personal gain, but as matter of principle — are reminiscent of the selfless and noble motivations animating a certain Bradley Manning who allegedly freed documents to the world through Wikileaks; and are readily apparent in acts like his participation in developing the Creative Commons licensing program, his participation in the fight against SOPA (see his keynote speech here: How We Stopped SOPA), as well as the The Guerilla Open Access Manifesto. The Manifesto states:

The control over scientific and cultural information by corporations should stop. Instead, we need to fight for Guerilla Open Access by posting such information on file sharing networks.

Individuals like the U.S. Attorney Stephen Heymann would not have it that way, however; which, considering the “crimes” committed, is a grim object lesson on the arbitrary abuse of intractable and raw power to send a message of deterrence to future potential shit-stirrers. Ultimately, this is a story about control, something which has always been at the forefront of governments’ and power centers’ concerns for hundreds of years — a sentiment echoed accurately in a statement by Glenn Greenwald in his recent article on Swartz:

Swartz’s activism, I argued, was waged as part of one of the most vigorously contested battles – namely, the war over how the internet is used and who controls the information that flows on it – and that was his real crime in the eyes of the US government: challenging its authority and those of corporate factions to maintain a stranglehold on that information. [my emphasis]


One could ask: what is the purpose of restricting access to an online scholarly journal, or any media content which was presumably partly or wholly made possible with public funding? There is the prosaic answer, that such fees are needed to maintain a minimal functioning service, assuring its continued existence — but then there is a contradiction arising from the fact that whatever results from this publicly-funded research is not available… to the public. It’s not so simple. Thomas Knapp discusses it here:

The old media companies’ only chance of survival is to give up their failed state-created monopolies and protection rackets, and figure out how to generate profits through voluntary trade instead.

Knapp rightly excoriates the intellectual property monopolies (or, mafias) for rarefying their product with the help of the State in order to extract a profit, but at the same time proposes as a solution to simply find a different way to rarefy their product in order to extract profit. The question of whether or not there exists such a thing as purely free trade is a topic for another discussion. One way to interpret this critique is not that they are engaging in dishonest behavior for material gain, but rather that they are not clever enough to find a way to do it without the power of the State. This then turns to the question of whether or not the rarefication of a product, or idea, can be implemented not only by State power, but by any of a number of different methods. Ultimately, a clear distinction should be made between the use of force or sanction, or the threat of force, to prevent the transmission of information (the State), and other techniques, which do not (though the ideas of “violence” and “coercion” really are not so simple).

For example, I can make my research available only to a small clique of insiders, not by restricting access to it through financial instruments, but rather by making them understandable only to them. I can encrypt my communications, making, theoretically, only those who know how to decrypt them able to use them. That is, there is a rarefication not through restricting access by force or financial means (which in the end are the same thing), but rather through intellectual means. In this sense, much in the way coded language is a system for rendering statements unintelligible to outsiders, it’s a type of conspiracy – understood in the broad sense – which aims to enact a form of communication only accessible to those who hold the intellectual keys to decode it. This, however, neglects much more subtle techniques of control, such as propaganda, which don’t so much restrict the transmission of information as they shape and control what people think — which in turn transforms the nature of the information being transmitted. We’ll come back to this.

The idea underpinning freedom of information and the rejection of intellectual property “rights” is that knowledge is a universal, unquantifiable essence, and therefore non-subject to proprietary exclusion. There is no way to attach a nominal value to it in order to perform mathematical operations, either, other than a purely arbitrary one. How much is a poem, a song, a paragraph in a chemistry publication “worth”? It’s possible to assign a market value to anything, as long as there is a demand, but this is not a reflection of its intrinsic “value”, as such a thing does not exist — market value is a human invention, subject to arbitrary fluctuations, which has no counterpart in nature, indicating that it is indeed partly a reflection of power. Furthermore, new technologies have greatly lowered the monetary costs of publishing and reproducing information. This contrasts with physical objects, which can be quantified, and often cannot be duplicated at will by anybody. Therefore control over the diffusion and intellectual property of such documents must be enacted artificially in order to benefit certain interests, which extract a rent on controlling them (i.e., making them rare), much in the same way the pharmaceutical lobby harnesses the coercion of the State in order to extract egregiously high rents on their products.

There is no such thing as access to all knowledge without barriers, and it would be misleading to say such a thing exists — we often speak of internet freedom, but one must have an internet connection and a computer, as well as pay the company providing access, in order to exercise it. We often speak of freedom of speech, but freedom of speech is meaningless unless one has the means to express it to a larger audience — this makes it an inherently social right (or restriction, depending on how you see it). After all, a prisoner in her cell enjoys freedom of speech if her only concern is being able to speak, like a caged bird. Advocacy implies the ability to influence others, and to already be in a position to do so; therefore an act with the potential to change events — therefore, ultimately an exercise of power. Matt Stoller writes:

Corporate control over our communications infrastructure is the free speech question of our time. When Obama’s Attorney General Eric Holder refuses to investigate Rupert Murdoch’s company for bribery in the phone hacking scandal, and Obama’s FCC Chairman Julius Genachowski works to help Rupert Murdoch’s company buy more media assets, and the number of broadcast media outlets owned by minorities continues to decline, it’s clear we have a free speech problem. But it has nothing to do with a comment on twitter or burning flags.

For me, this introduces the duality of

1) First Amendment rights, as interpreted by the courts (culminating in cases like Brandenburg v Ohio) — circumscribing the limits of State power to sanction individuals (or groups) for their political speech or advocacy


2) Free speech as it is actually exercised, with all the restraints put upon it by existing non-governmental institutions, socio-economic conditions as well as cultural norms

— which should be analyzed separately, the one being the product of a century-long struggle to constrain the State through judicial and Supreme Court decisions, and the other a more fundamental struggle to transform our values and ideas regarding power and privilege. There is no doubt that one struggle bleeds into the other, and while for the sake of analysis it’s useful to separate them, ultimately they are related. A far more competent discussion on this can be found here: First Amendment Architecture

Briefly, I see three different ways in which the free flow of information is impeded: by government fiat, by existing non-governmental politico-economic institutions (including corporations), and by our own cultural norms. Rather than saying that there should be an absolute free flow of information amongst people, which is impossible, it would be more accurate to say that we should minimize or abolish the artificial and arbitrarily imposed barriers and obstructions to the free flow of information as much as possible. Therefore, the question is not only whether information should be exchanged and duplicated freely, but also whether it can be.


As for subtler techniques of control, Hillary Clinton, in a 2010 address at The Newseum in Washington, DC which was suffused with hypocrisy, spoke this curious phrase, which appears transparent on the surface, but bears further examination:

As it stands, Americans can consider information presented by foreign governments. We do not block your attempts to communicate with the people in the United States. But citizens in societies that practice censorship lack exposure to outside views.

Indeed, they do, but only a lack of self-awareness — or a good education — could permit an American state official to utter such words. The soil from which such platitudes spring is nationalistic hubris. Just as the dissidents and prisoners held by their own governments in rival foreign nations are more deserving of the admiration and breathless support of political elites here, so are the faults of foreign regimes to be magnified so as to make oneself appear enlightened by comparison. To be fair to Clinton, it is not a uniquely American phenomenon, however the particular imperial heights on which Washington sits make the double standards all the more visible. There are indeed societies which practice government censorship, one only need invoke Egyptian dictator Hosni Mubarak’s cutting off the internet during the Egyptian intifada in January 2011, or China’s notoriously restrictive internet censorship policies. One can even invoke the extrajudicial banking blockade against WikiLeaks, done at the behest of US Congress members Joe Lieberman and Peter King, when they convinced VISA and MasterCard to refuse payments to Wikileaks (the Freedom of the Press Foundation was created partly to circumvent these purely Stalinist measures), even when the companies

…together hold a monopoly of 97 per cent of the market of EU card payments.

One need hardly speculate whether or not Clinton would include the United States in the group of “societies that practice censorship”, or whether she would deem Americans lacking in “exposure to outside views”… Considering the extraordinary consolidation of the mainstream press in the United States, a de facto form of soft censorship does indeed exist, albeit not overt. The gathering of major press organs in the hands of a small group of owners, already discussed, ensures that only a very restricted spectrum of views will be represented, although there is always limited room for moderate dissent (necessary to maintain the illusion that a broad range of views is being presented).

One could also invoke the masterful propaganda leading up to the joint US/UK Iraq aggression (although some journalists did act with integrity), or the American press establishment’s characteristically obedient representation of events during Washington’s war against Central America, CIA collaboration with the media, the fact that anthropocentric global warming is rarely discussed on national television even though it is recognized by an overwhelming scientific majority as a reality meriting attention (Aaron Swartz had an opinion on this), as well as more muscular methods, such as the American forces targeting Al Jazeera offices in Afghanistan and in Iraqperhaps intentionally — as well as US cable companies’ refusal to carry Al Jazeera English until recently, the refusal to grant Tariq Ramadan an entry visa due to “political views”, Obama’s apparent insistence on keeping Yemeni journalist Abdulelah Haider Shaye behind bars, without forgetting the tawdry collection of banalities and distractions presented as news by the major networks (designed to divert attention from the real problems facing Americans, on which they might otherwise focus their efforts) having the effect of maintaining a passive and contented population — one could go on. In fact, the very reason these various forms of propaganda and media consolidation are needed in order to control the population is precisely because there exists such a strong tradition of free speech in America — controlling what people think is the only alternative, when power cannot completely control what they are able to say. All of these things do have the effect of narrowing the debate, while ensuring that those who have opinions contrary to those who own the large media corporations are effectively marginalized.

As Orwell stated in his forward to Animal Farm:

Unpopular ideas can be silenced, and inconvenient facts kept dark, without the need for any official ban. Anyone who has lived long in a foreign country will know of instances of sensational items of news—things which on their own merits would get the big headlines—being kept right out of the British press, not because the Government intervened but because of a general tacit agreement that ‘it wouldn’t do’ to mention that particular fact. So far as the daily newspapers go, this is easy to understand. The British press is extremely centralised, and most of it is owned by wealthy men who have every motive to be dishonest on certain important topics. But the same kind of veiled censorship also operates in books and periodicals, as well as in plays, films and radio. At any given moment there is an orthodoxy, a body of ideas which it is assumed that all right-thinking people will accept without question.


There is a debate as to whether new communication technologies, as they become available to more people around the planet, along with techniques of encryption and anonymization, will permit us to be definitively and permanently free from some of these constraints (having reached an inflection point), or if on the contrary, they are merely tools to be used more effectively by powerful factions, implying that we are doomed to play a perpetual game of cat-and-mouse, indefinitely.  Both are right, of course, but I think there is a certain weakness in falling into a complacent pessimism. Real progress happens by jumps, not continuously, as when one arrives at a certain level a new set of problems is revealed, previously hidden, which demands to be solved. When surveying the progress made on this front over the last several centuries, I tend to be optimistic — indeed, if you don’t even have that, what’s the point?

There are always precursors, the vanguard, in any conflict, whose sometimes reckless but principled and brave acts help set the tone for the rest of us. Aaron Swartz, much like Bradley Manning, is among those numerous individuals and movements who refuse to accept the world as it is, but are on the contrary attempting to transform it into what they think it should be, taking matters into their own hands. That is, they are taking the risks upon themselves to suffer the consequences of transgressing immoral and unjust laws and circumstances in order to force changes which will ultimately benefit all of us.  We owe them our gratitude and respect.


Update I: Kevin Paulsen at Wired reports the charges against Swartz have been dismissed. No comment.


Update II: Jennifer Granick at Stanford’s CIS has a good discussion on the dysfunctionality of both the Computer Fraud and Abuse Act and the criminal justice system more generally, in light of the Aaron Swartz case.


Update III: Marcy Wheeler and Jason Leopold have more useful and detailed information shedding light on events surrounding Swartz’s case.


Update IV (Jan. 27): Declan McCullagh wrote on the 25th about a recent report in the Massachusetts Lawyers Weekly detailing how Swartz did not risk a prison sentence until federal prosecutors took up the case, how state prosecutors were planning on letting Swartz go with a warning. Carmen Ortiz’s office was indeed, exactly as I wrote, hoping to “send a message” to deter other future troublemakers. McCullagh writes:

Middlesex County’s district attorney had planned no jail time, “with Swartz duly admonished and then returned to civil society to continue his pioneering electronic work in a less legally questionable manner,” the report (alternate link) said. “Tragedy intervened when Ortiz’s office took over the case to send ‘a message.'” […] The Boston U.S. Attorney’s office was looking for “some juicy looking computer crime cases and Aaron’s case, sadly for Aaron, fit the bill,” Elliot Peters, Swartz’s attorney at the Keker & Van Nest law firm, told the Huffington Post. Heymann, Peters says, thought the Swartz case “was going to receive press and he was going to be a tough guy and read his name in the newspaper.”

— all of which clearly demonstrates the basic fact that federal prosecutors seem to have far too much power.


Update V (Feb. 10): Timothy Lee elaborates on Swartz’s campaign to liberate the PACER court documents.

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