Final Thoughts on the Swartz Affair




On July 30, MIT released its long awaited report on its role in the prosecution and suicide of internet activist Aaron Swartz.


Some will regard its release coinciding with the Bradley Manning verdict as suspicious, designed to distract the attention of many of those who would be otherwise interested in and critical of the report's contents.   


But it is almost certainly overly conspiratorial to credit MIT with a media strategy on this level of sophistication.  In fact, something like the exact opposite is more likely the case: rather than being aware of public perceptions, the report provides many indications of an administration largely unaware of or unconcerned with a widespread cynicism in some circles with respect to its intentions and motives.  The tone deafness towards its critics should be seen as of a piece with a routine legalistic arrogance and institutional cowardice, the combination of which would be a decisive factor in the Swartz tragedy.   


One of those who now views MIT in this light was Swartz's partner Taren Stine Bruckner who was clearly speaking for many when she immediately dismissed the report as "a whitewash".  In my opinion, it is an exaggeration to characterize it in those terms;  on a basic factual level, there appears to me to be little to challenge.  Rather, the shortcomings of the report are not factual but interpretive in that in it consistently fails to provide the broader context in which otherwise routine and uncontroversial actions by the administration would be seen as at least questionable and in some cases dubious. 


A good indication of the misleadingly narrow focus of the report is contained in the biographical sketch of Swartz offered in the first chapter.  While respectful towards some of what Swartz had accomplished in a short life, a conspicuous absence is its omission of  what was probably his most important political achievement: having been the leading figure organizing opposition to the Stop On Line Piracy act or SOPA, as it was known.  As some readers will recall, SOPA was a post 9/11 bill pushed mainly by the large media and entertainment conglomerates, forcefully whipped by Senator Christopher Dodd who has since become the head of the Motion Picture Association. As Propublica reported here, the legislation was considered a fait accompli until an eleventh hour surge of on line opposition organized by Swartz forced a delay and then eventually its withdrawal. The outcome was a substantive defeat for some of the major financial supporters of the Obama administration and it is likely that they and the administration became aware of Swartz as the key opposition figure.  This information is necessary to understand why there is a reasonable suspicion that the federal prosecution of Swartz, and MIT's involvement in it, was the pursuit of payback, bearing comparison with the higher profile prosecutions of Manning, Julian Assange and Edward Snowden.


Similar skepticism is reasonably directed to the report's account of the months following Swartz's arrest which, the report suggests, barely registered with MIT officials aside from a pro forma response from the MIT's Office of General Counsel (OGC). In particular, rather than having advance knowledge of it, the report states that "MIT (first) learned of the indictment for the first time on the day it was unsealed (July 19) through a phone call from the prosecutor to an attorney in OGC."   That MIT was entirely unconcerned with and, more important, uninformed of the ground work being laid for the Swartz indictment is possible, but many will find it questionable. Of course, it is quite likely that there was no formal communication between federal prosecutors, Obama justice department officials, or others in or close to the Obama administration prior to the indictment.  But it is not conspiratorial to consider the possibility of informal contacts given the close historical ties between MIT and the federal government. To take some notable examples, a former provost, John Deutsch, was Director of Central Intelligence; another, MIT nuclear physicist Ernest Moniz, was recently appointed Energy Secretary, MIT President Hockfield, as I noted previously serves on the National Security Higher Education Advisory Board founded by the FBI for the purpose of "discussing . . . the promotion of strategic national security partnerships with academia."  In 2010, Hockfield hosted a visit by homeland security chief Janet Napolitano and has appeared with her on several subsequent occasions.  While none of these constitutes direct evidence, the quantity and quality of these connections indicate that informal discussions of matters of mutual concern, including the Swartz case, between Hockfield and Napolitano or between other members of the MIT and Obama administrations are by no means a conspiratorial fantasy.  


The possibility of the Swartz case being discussed in an informal context, and these discussions influencing MIT's decisions brings to mind another omission in the report having to do with the circumstances through which JSTOR decided to drop charges against Swartz.  The incident in question occurred during Swartz's memorial in Washington where Edward Tufte, the renowned Yale professor, and a friend of Swartz, revealed that on hearing of Swartz's arrest he had made a phone call to William Bowen, the former Princeton President and current CEO of JSTOR.  In it, according to Tufte he apprised Bowen that he now had "a great opportunity not to ruin a young man's life."  While it can't be proven, this informal, off the record conversation likely played a role in JSTOR's decision to drop charges, as much as did the legal advice provided by its in house counsels noted in the report.


This anecdote suggests how the communications, had they occurred, between MIT and federal government officials would have been initiated, namely on an informal basis. To address suspicions along these lines substantially more digging was required extending to, for example, requesting the phone logs of MIT administration officials and those in the OGC office as well as aggressively pursuing FOIA requests for the relevant documents.  There is no indication that the authors did so and for this reason, the report will not fully address the concerns of those sympathetic to Swartz.


Concerns about such contacts are particularly justified based on the outcome which materialized following the indictment.  For had they been in contact, the governmental officials would likely have advised MIT to do exactly as it did,  namely, to take what the report characterizes as a "neutral" position on the Swartz prosecution.  As the report makes clear, that effectively provided the prosecution everything it needed to make its case while being able to mollify those at MIT and elsewhere who would, as the report says, react "negatively" to MIT endorsing the prosecution.  Much of the report is devoted to an examination of the consequences of this decision and not every justification it provides can or should be rebutted.  One claim stands out as highly questionable, namely that MIT was "concerned that any public statements that MIT might make on SwartzŐs behalf could backfire."  This strikes me as disingenuous.  When the scuttled plea bargain was being privately negotiated this may have been the case, but after Swartz launched his appeal for support on the internet, the case was in the public realm and MIT's statement  of support would have been very useful to Swartz's side.  In particular, while prosecutors  of course, deny it, they are highly sensitive to the public opinion. A prosecution undertaken against the opposition of both of the two claimed victims would have made them look absurd and I don't believe it would have been sustainable.


Furthermore, on the general matter of whether neutrality in this case was appropriate, this needs to be looked at in the context of the statute under which Swartz was being charged namely the Computer Fraud and Abuse Act, which as the reports states  "is a poorly drafted and questionable criminal law as applied to modern computing, one that affects the Internet community as a whole and is widely criticized."  That's all true but more needs to said, specifically that it is, like the Espionage Act,  under which Manning was just convicted, a catch-all law which criminalizes all sorts of absolutely normal and routine conduct on the internet including what I'm doing right now-accessing my neighbor's network.    The CFAA was the kind of law Laruent Beria, the head of the KGB under Stalin, was referring to with his infamous expression "Show me the man, and I'll show you the crime."  It, along with the Espionage Act, is providing the ammunition for the Berias in Obama's justice department to engage in the legal fishing expeditions which constitute an unprecedented war against whistleblowers and those opposing its agenda.   Swartz slipped up in having made himself a target, but there are plenty of grounds for suspicion that the effectiveness of his previous activism is what led to the severity of the charges filed against him.    


MIT failed to recognize that the prosecution was part of the broader context of state repression joining Swartz with Manning, Edward Snowden, and Julian Assange, as well as with the lesser known victims Thomas DrakeJesselyn RadackJeremy Hammond, and Andrew Auernheimer.  As such, the federal prosecution of Swartz was therefore much more than a simple case of providing a rap to the knuckles of overly aggressive hacker.  What the report repeatedly characterizes as MIT having failed to provide "leadership" is the overly polite phrase for its institutional cowardice in relation to this exercise in government excess.  Rather than cooperate,  MIT should have recognized the illegitimacy of prosecutions which have been initiated under the CFAA. It should have recognized that the broader interests of MIT and the high tech community with which it has had a longstanding symbiotic relationship would best be served not by neutrality (which in practice meant, as the report states "aligning MITŐs interests more with the prosecution than with the defense") but by refusing to comply with the prosecution's requests to provide evidence for it to build its case.


This is assuming that members of the administration were, in fact, unaware of the case and had not made formal or informal contact with officials in the justice department or the administration.  If they were and if members of the administration received advice from the federal government so that the prosecution could proceed without putting the institution in a negative light,  this is a different matter.


If so, MIT did indeed provide leadership, but it was leadership in the wrong direction. Insofar as there are sufficient grounds for this suspicion it will should come as no surprise that the report has not been warmly received by Swartz's supporters and will be found by many to evade important questions.


Even if what the report refers to as "dark conspiracy theories" prove to be baseless, it is clear that the conduct of its administration has done MIT no favors in this matter.