More on Aaron Swartz

I got some feedback that the analogy I used in my last post was a bit confusing, and indeed I blew the phrasing of the analogy (also now corrected). So let me try this again, since I think there's a subtlety here that may be missed.

I should note for the record that my understanding of what Swartz did that started the process is apparently somewhat based on the description from the prosecution, so it may not be the complete or accurate facts. Since there will now be no trial, we may never find out what the defense was, and whether those facts would be challenged. So it may be best to think of this as a hypothetical. We never established, or will establish, in court exactly what happened.

Swartz was, generally speaking, charged with two things that I consider quite distinct, at least from an ethical perspective. Most of the focus is on the copyright part: downloading JSTOR articles with an intent (never acted upon) to distribute them to the world. There are a bunch of reasons why this may or may not be justified, which are tied into the origin of those articles (many of them were publicly funded) and the legitimacy of copyright licensing agreements. I think there is significant room to hold a variety of opinions on this, although I don't believe that "crime worth 35 years in prison" is even remotely close to justifiable under any interpretation.

However, there is a second part of what he was charged with, and that's primarily what I was commenting on, not the copyright part. He allegedly hooked up a laptop in an unlocked MIT wiring closet without permission and then used MIT's network and JSTOR license to download information. This is, to me, a subtlely but entirely distinct act from the question of whether taking JSTOR's data was ethically or legally wrong. Whether or not one believes that JSTOR's copyrights are not legitimate, it's still not okay to use someone else's network and license or to trespass in their wiring closets without permission. (I work in central IT for a university, so this strikes closer to home.)

And this is where the analogy came in, which I flubbed. I had originally said that this was akin to "traipsing into someone's barn or backyard shed without their permission and taking some of their tools because you want to use them." The word "taking" was wrong; it falsely implies that you weren't going to return the tools. I had been thinking "taking and then returning" when I wrote that, and the important second part didn't make it into the post. So let's try this again:

Swartz's actions at MIT, as I understand them (and many things could change this, such as a revelation that he had MIT's prior permission), are akin to going onto someone's property and into their barn without permission, borrowing their hedge trimmer for a while because you want to use it, and returning the hedge trimmer without any damage when you're done (and without them noticing it was gone).

I'm quite fond of this analogy, since I think it clearly establishes two things:

1. Most people are going to be unhappy about this happening and will intuitively feel like it should probably be illegal. Not everyone; there are folks who don't believe in personal property, or at least wouldn't extend it to tools in a barn. But most people will feel that someone should ask first before they come borrow your tools. Even if they don't damage them, even if they return them before you notice they're gone, you might have wanted to use the tool at the same time or they might have damaged them without intending to, and they should just ask first. It's common politeness, and depending on the circumstances, someone who doesn't ask and is covert about borrowing tools might be worth calling the police over.

2. There is absolutely no way in any reasonable moral system that doing this should result in 35 years in prison. Or even 10, or even 1. Yes, most people would consider this a crime, but most people would consider it a minor crime. It's the sort of thing where you might have to impose some consequences just to make sure the message of "knock it off" is delivered firmly, but someone doing this is rude and inconsiderate, not evil.

The JSTOR copyright stuff is more complex to analyze and is more politically divisive, but for me the key points are (a) Swartz never released the data, and (b) JSTOR declined to press charges. To me, that means the deeper copyright questions, which are quite interesting, were never actually reached in this particular case. The crime that did apparently happen was the trespass at MIT, for which I think the above analogy is the right way to think about it.

The point I do want people to take away from this is that one should not overlook the trespass at MIT even if one wants to celebrate the undermining of the copyright regime and doesn't believe JSTOR's data should be considered their private property. Social activism and political disobedience are important and often valuable things, but performing your social activism using other people's stuff is just rude. I think it can be a forgivable rudeness; people can get caught up in the moment and not realize what they're doing. But it's still rude, and it's still not the way to go about civil disobedience.

For both ethical and tactical reasons, involving bystanders in your act of social activism without their consent is a bad approach.

ETA: The problem, of course, with discussing all of this is that while it's relevant and possibly even somewhat important in the broader sense of how our community acts going forward, it also doesn't capture the fact that this was only one incident in a remarkable life. One of the worst problems with the abusive prosecution of Swartz is that it blew this incident completely out of proportion. A moment of arguable judgement should not dominate one's life or cast a shadow over all of one's other accomplishments; the prosecution tried to make it do just that. That's part of what I'm arguing, but ironically that partly feeds into the lack of proportionality in the discussion.

I've gotten kind of far afield here, so let me go back and say explicitly: Swartz was a remarkable person who did much to admire and respect, and the world is a worse place without him.