July 30, 2013  ·  Lessig  · Reblogged from  Tumblr

One of the most frustrating aspects of this report is the role of “neutrality” — especially in light of the criticism MIT makes of the prosecutors reported in the post below.

“Neutrality” is one of those empty words that somehow has achieved sacred and context-free acceptance — like “transparency,” but don’t get me started on that again. But there are obviously plenty of contexts in which to be “neutral” is simply to be wrong. 

For example, this context: The point the report makes in criticizing the prosecutors is that they were at a minimum negligent in not recognizing that under MIT’s open access policies, Aaron’s access was likely not “unauthorized.” As the report states (at 139): 

As far as the Review Panel could determine, MIT was never asked by either the prosecution or the defense whether Aaron Swartz’s access to the MIT network was authorized or unauthorized—nor did MIT ask this of itself. Given that (1) MIT was the alleged victim of counts 9 and 12, (2) the MIT access policy, its Rules of Use, and its own interpretation of those Rules of Use (including the significance or “materiality” of any violation of those terms) were at the heart of the government’s CFAA allegations in counts in both indictments, and (3) this policy and these rules were written, interpreted, and applied by MIT for MIT’s own mission and goals—not those of the Government— the Review Panel wonders why. (p139)

But that criticism goes both ways — if indeed MIT recognized this, and didn’t explicitly say either privately or publicly that Aaron was likely not guilty of the crime charged, then that failure to speak can’t be defended by the concept of “neutrality.” 

Indeed, the criticism of MIT could be stronger: At most, the prosecutor was negligent. But MIT was more than negligent: The issue was explicitly flagged for it, by a senior member of the MIT administration. As the report indicates, Joi Ito, in the summer of 2011, explicitly raised the point: 

One particularly pertinent moment was in June 2011 when the Media Lab Director [Joi Ito] informed the administration that Aaron Swartz was charged with “unauthorized access” and suggested that MIT would be in a position to cast doubt on this charge if so desired (see section III.B.1). …

A charge of “accessing [the MIT network] without authorization or in excess of authorized access” deeply involves MIT, since MIT provides the authorization and sets the rules of authorization. Thus MIT set rules that played a key role in determining what constituted a felony in the Aaron Swartz case. In the 1994 prosecution of David LaMacchia, MIT communicated to the USAO that, as a student, LaMacchia was authorized to accessthe computer as he had done. There was no reflection on the LaMacchia case during Swartz’s prosecution: institutional memory had been lost. Part V, Question 1, in considering the need for greater expertise at MIT relating to computer crime, also asks about ways to help preserve institutional memory.

MIT has justified intervening in the LaMacchia case and defended not intervening in the Swartz case on the basis that LaMacchia was a student and Aaron was not.

But that defense is absurd: If MIT knows that a human is being prosecuted on the basis of a false interpretation of MIT’s rules, what possible difference does it make whether that human is a student or not? If a MIT official sees someone bleeding on the Mass Ave, do they decide whether to call 911 only after checking for a student card? MIT knew something here that at a minimum could have cut short a prosecution, and which, it turns out, could also have saved someone’s life.

“Neutrality” does not justify failing to pick up the phone, and telling the prosecutor, “hey, in fact, his access was authorized.” Maybe it wouldn’t have mattered. Maybe the prosecutor would have stayed the course. But then that would have been (yet another) failure of the prosecution, not MIT’s.

(Original post on Tumblr)

  • http://ljean.com Jean Camp

    I do not recall MIT intervening for David. In fact, what David did was not yet illegal, but the circus of his prosecution obviously created the “Lamacchia” rule. “MIT had a student who was charged despite doing nothing illegal. But MIT did not assist in any way with legal services, but turned over information without a warrant to prosecution.”, is a better description.

    As for this. I completely blame MIT for the actions of MIT. Those actions are consistent over years, and in opposition to open access.

    IU responded to Chris’ stupid boarding-pass-generator by meeting with us and the FBI in Counsel office, in a most positive and supportive manner. IU Counsel was about translating the very real black and white of the law enforcement to academics; and translating the concept of openness, experimentation, and (yes) errors of academics into something other than the mendacity and maliciousness with which law enforcement is accustomed. That was neutrality of the highest order: being there, being trusted by both sides, and helping create a resolution not a prosecution. (PS I had nothing to do with the boarding pass generator. It was not part of our research activity. )

    Harvard responded to the first RIAA letter with an offer to explore the fullest subtleties of the law with the resources of HLS. (Were you on that committee?) Charlie Nesson wrote the reply; it was a thing of beauty. MIT complied immediately with the RIAA request, and helped set the policy which RIAA has sold to so many institutions since. This is a policy that has harmed many students, most with fewer friends than Aaron.

    CMU refused to throw Marty Rimm under the bus despite mendacity of the most stupid order. (But I soooooo wanted them to, having been a student.) Marty’s advisor was my advisor. That same advisor paid my expenses so I could go give a paper at CFP reaming the Rimm paper and University response. That is neutrality in defense of free speech.

    MIT could have stopped the prosecution of Aaron by acknowledging that he was authorized to access. Counsel worked hand in glove with prosecution. MIT’s role in pivotal court cases has contributed the criminalization of computer security under the CFAA. MIT behavior was contemptible. They even had at least three faculty meeting with all levels, trying to get the administration to act in a manner consistent with academic decency, if not freedom.

    MIT Counsel has acted consistently against the interests of an open internet and academic freedom. The criminalization of computer security is in part his continuing legacy. Were his legacy examined, I cannot imagine a faculty vote of confidence. MIT Counsel office meets no standard of neutrality, or decency.

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  • Louis

    In the Lamacchia case, the prosecutor tried to get representatives of MIT to testify that his use of the MIT machines “exceeded his authorization” so that they could prosecute him under existing computer crime laws, and the MIT people refused (the root password of the relevant machines was well known), which is _why_ they were stuck with the weak application of the law that they used.

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