In Swartz case, MIT ‘hands-off,’ report says

Swartz’s partner: report a ‘whitewash’

A report released by MIT on July 30 found that the Institute maintained “neutrality” during the federal prosecution of the late Internet activist Aaron Swartz, missing a chance to show “leadership” in the two years before his suicide in January.

The report, which has renewed sharp criticism of MIT in the blogosphere, came six months after MIT president L. Rafael Reif asked computer science professor Hal Abelson PhD ’73 to conduct an independent investigation into MIT’s involvement in the Swartz case.

Following Swartz’s death, MIT came under fire from commentators who saw MIT as party to an unfairly aggressive government prosecution. Swartz had been charged with 13 felony counts after downloading millions of JSTOR articles to a laptop secretly hooked up to a network switch in a Building 16 basement closet. At one point, his actions prompted JSTOR to cut off MIT’s access to its content for three days.

The report found that MIT did not purposefully “call in the feds,” made no public statements for or against the government’s prosecution, sought no punishment for Swartz, and responded similarly, for the most part, to requests from the prosecution and the defense for documents and witnesses. The report’s authors acknowledged caveats to this notion of neutrality, but emphasized that MIT kept a “hands-off attitude.”

Something more should be expected from a leader in information technology and open access when it meets a “ruinous collision of hacker ethics, open-source ideals, questionable laws, and aggressive prosecutions,” the report suggested in its conclusion.

But Reif saw the report as affirming MIT’s actions to be “reasonable, appropriate and made in good faith.” Those at MIT involved in the case “served MIT with outstanding professionalism,” he wrote in a statement.

Citing Reif’s charge, the report’s authors (Abelson, economics professor Peter A. Diamond PhD ’63, and Andrew Grosso, a lawyer based in Washington) stopped short of making explicit judgments or recommendations, and Abelson said again this week that he wanted to wait before sharing his personal opinion on MIT’s actions. However, the report does pose eight “Questions for the MIT Community” about policy, ethics, and information technology, and in response, Reif has announced three administrative actions to address the questions.

Taren Stinebrickner-Kauffman, Swartz’s partner, called the report a “whitewash,” saying in a statement that MIT did actually pick a side — the wrong one. “MIT’s lawyers gave prosecutors total access to witnesses and evidence, while refusing access to Aaron’s lawyers to the exact same witnesses and evidence,” she wrote. “That’s not neutral.”

In an interview, Abelson called that claim “80 percent false.”

The report did find that “neutrality in responses was not consistent with neutrality in outcomes,” and explained that legal procedure dictated that the prosecution could issue subpoenas for documents before the defense could. MIT also voluntarily handed over some documents to the prosecution but not the defense, operating under the asymmetric assumption that the defense would get documents from the prosecution. The report furthermore allows that the defense’s motion to suppress certain evidence as inadmissible “had the effect of aligning MIT’s interests more with the prosecution than with the defense.”

But critics of MIT are troubled by more than the specifics of the report’s narrative, with some arguing that MIT’s overall inaction was negligent, or worse.

Those who have said that MIT failed in its responsibilities include Ethan Zuckerman, director of the MIT Center for Civic Media, and Cindy Cohn, legal director at the Electronic Frontier Foundation.

Zuckerman saw in the report “an admission that MIT was less interested in doing the right thing than in avoiding the sort of negative publicity it faced when it failed to support Star Simpson when she faced prosecution for wearing an LED-enhanced hoodie to Logan Airport.”

Several close to Swartz also condemned MIT’s silence on the Swartz prosecution.

Harvard Law professor Lawrence Lessig wrote in a blog post that “‘Neutrality’ does not justify failing to pick up the phone, and telling the prosecutor, ‘hey, in fact, his access was authorized’,” echoing others’ objections that Swartz’s charges may have been based on a “false interpretation of MIT’s rules” regarding guests on the network.

By not saying anything, MIT was “complicit” in the prosecution’s actions, said Charlie Furman, campaign manager at Demand Progress, an activist organization founded by Aaron Swartz. Furman also saw the report’s failure to name the decision-makers in MIT’s involvement as “hiding behind a bureaucratic structure.”

Furman, Cohn, and others have said that the path to redemption for MIT might start with a support for reforming the Computer Fraud and Abuse Act under which Swartz was prosecuted. The report’s authors seemed to agree a critical assessment of the CFAA, calling it “a poorly drafted and questionable criminal law as applied to modern computing.”

The report’s authors have defended the practice of not identifying individuals by name. “We know that people have been threatened, so it’s no joke if you get your name in this report,” Abelson said. “We are fully aware that [many] names are readily discoverable on the Internet. Even so, we see no need to further erode their personal privacy,” an appendix to the report read.

The release of Abelson’s report comes in the midst of MIT’s intervention in a request to release Secret Service documents related to Swartz, a move that MIT has defended for similar reasons.