We’ve learned the wrong lessons from Aaron Swartz

August 11, 2014

Over at the (highly recommended) Popehat blog, Ken White reviews the new documentary about the late Internet activist Aaron Swartz and in doing so waxes eloquently on privilege, justice and sketpicism.

Swartz wasn’t different because he was so smart; he was different because of what he did with his gifts. He questioned. Most of us think of government and private entities as being distinct, and even adverse to each other. Swartz questioned that premise and pointed out how private companies reap benefits from the public fisc, as in the case of private companies selling access to scholarly articles backed by public money. Conventional wisdom held that SOPA and PIPA were unstoppable and that grassroots efforts could not prevail against entertainment industry money; Swartz questioned that premise and became an effective leader in the successful fight against those measures. . . .

But the movie shows that Swartz and his supporters failed to question premises when he encountered the criminal justice system. Most people make that mistake. When Swartz’s friend Quinn Norton talks about being interrogated by the FBI, she is outraged that they seem indifferent and bored when presented with facts that don’t fit their worldview. Norton accepted the premise that law enforcement is trying to find out what really happened, rather than gathering facts to support their version of events. She seems shocked that the FBI agents lied to her repeatedly as they questioned her; she did not appear to question the premise that the government tells the truth. Swartz’s backers were enthused when JSTOR announced it was not pressing for charges against him; they did not question the premise that the criminal justice system acts based on what alleged victims need or want. Swartz’s friends express disbelief that the federal government would spend resources to prosecute him rather than on far more worthy cases; they do not question the premise that the system makes rational decisions based on resource allocation. Swartz’s allies are shocked that AUSA Stephen Heymann says things like “stealing is stealing” and “all hackers are alike”; they don’t question the premise that the government’s stated motives are its actual motives, or that the system cares whether it is right. Swartz and his supporters are appalled that a federal prosecutor might have been motivated by animus towards Swartz’s political and social activism; they don’t question the premise that the system is made to protect citizens from the idiosyncrasies and petty malice of its component parts. Swartz and his supporters are amazed that an outdated computer fraud law threatens harsh penalties for downloading scientific journals; they do not question the premise that the law forbids specified acts democratically selected. They do not suspect that the law is a flexible tool made to empower prosecutors to charge whomever they want to charge. You don’t need to be particularly smart or creative to figure out a way to charge someone with a federal crime in America.

In short, Swartz’s team seemed to view this as an unjust and broken application of a system to an undeserving man, not recognizing that the system is rigged and unjust and broken from the start. That’s common among smart, educated, fortunate people. As I have discussed before, my fortunate clients are the most outraged at how they are treated by the criminal justice system, and most prone to seeing conspiracies and vendettas, because they are new to it — they have not questioned the premise that the system’s goal is justice. My clients who have lived difficult lives in hard neighborhoods don’t see a conspiracy; they recognize incompetence and brutal indifference and injustice as features, not bugs. “Justice system” is a label, not a description. The furnace on a steam locomotive bound for San Francisco does not have a goal of reaching San Francisco; the furnace just burns what you throw into it to move the train along.

It’s worth noting that White is a former federal prosecutor. The New York criminal defense attorney Scott Greenfield adds more:

With this post, Ken adds the final piece of the puzzle that explains how many very smart, very deeply concerned, people could reach such a misguided vision, create a myth around Aaron Swartz that confirmed their bias and explained, within their paradigm, why this one, individual, special, unique case went so horribly, disastrously wrong.

While Aaron Swartz questioned premises when it came to many aspects of technology, neither he nor his supporters ever questioned the fundamental premises of the criminal justice system, and thus crafted an explanation for what seems inexplicable to conform to the accepted premises that the system was not inherently broken, that it functioned at a level of ordinary injustice for everyone everyday.

They still believed that the system worked, the government was honest and well-intended, the participants were caring, intelligent people who would never knowingly cause absurd harm to others, unless there was a special malevolence toward a special person.  And Aaron Swartz was special.

Remember that old line about how a conservative is just a liberal who has been mugged? I have a corollary for it: Libertarianism happens to people. Most people don’t want to be skeptical of power. It’s just too uncomfortable. We want to believe that public officials and institutions usually do the right thing and usually have our best interests in mind. It takes personal familiarity with an abusive cop, an overly zealous prosecutor or a vengeful bureaucrat to disabuse us of the notion. It has to happen to us or to someone we care about. As White and Greenfield point out, even when it does happen to us or someone close to us, we still want to think that it was an isolated problem not the predictable result of a broken institution.

The key to reform is to get a significant portion of the public to care about these things when they’re happening to other people.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."
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