On MIT’s report on Aaron Swartz’s prosecution

Hal Abelson’s report on MIT’s actions around Aaron Swartz’s prosecution was released last week. I was on vacation and offline – I returned home Sunday and read the report and some of the responses to it.

I certainly see why Taren Stinebrickner-Kauffman called it a whitewash. For those hoping that Abelson and his colleagues would identify faults in MIT’s behavior and take responsibility for inaction, the report is deeply disappointing. One of the strongest statements in the report makes in conclusion is, ultimately, quite weak:

“…let us all recognize that, by responding as we did, MIT missed an opportunity to demonstrate the leadership we pride ourselves on.”

That’s a bit of an understatement. The report includes an entire section (Part IV) on opportunities MIT missed, places where MIT could have intervened and might have helped prevent a tragedy. While the report correctly notes that we can’t know how things would have turned out had MIT responded to Robert Swartz’s repeated requests for the Institute to make a statement similar to the one JSTOR made, it’s clear that MIT didn’t just miss an opportunity – it consciously and repeatedly decided not to take any actions that would have helped Aaron Swartz make a successful defense while cooperating fully with requests from prosecutors.

As such, I don’t think the report is a “whitewash”. I don’t think Abelson is trying to conceal details that cast MIT in a bad light – it’s hard to read the report without being deeply disappointed with how MIT makes decisions. By my reading, the report documents a troubling culture of leadership at the university, one where adherence to the (ultimately flawed) idea of “neutrality” overrides making a nuanced decision about how to respond to aggressive prosecution under a poorly written law.

There’s lots I’m angry about with the report. It ends with questions for the MIT community to consider, rather than recommendations. This isn’t the fault of Abelson and colleagues, but the ambit given Abelson by MIT’s President, Rafael Reif. While the report makes clear that MIT cooperated more thoroughly with prosecutors than with Aaron’s defense (and carefully explains why MIT’s “neutral” stance ends up favoring the side that had more power in the equation), it doesn’t lay blame on MIT’s general counsel or any other individuals for MIT’s failure of leadership.

For me, the biggest disappointment is a refrain throughout the report that blames the MIT community for failing to draw more attention to Swartz’s prosecution. In Part V, the authors note, “Before Aaron Swartz’s suicide, the community paid scant attention to the matter, other than during the period immediately following his arrest. Few students, faculty, or alumni expressed concerns to the administration.”

It’s certainly true that there was more anger and attention in the wake of Aaron’s suicide than there was during the indictment and period leading towards trial. But it’s not true that the community was unaware of Aaron’s plight. As the report documents, Joi Ito, director of MIT’s Media Lab, asked MIT’s leadership to see if Aaron’s case could be settled as a “family matter” within the MIT community. Two other faculty members spoke to the administration and Robert Swartz, who works for the Media Lab, approached MIT multiple times, seeking a statement that MIT did not believe Swartz should be prosecuted for his actions.

There are reasons why those of us who were aware of Aaron’s case didn’t lobby MIT more loudly. As the report notes, just following the statement about “scant attention”: “Those most familiar with Aaron Swartz and the issues that greatly concerned him were divided in their views of the propriety of his action downloading JSTOR files, and fearful of harming his situation by taking public or private stands.” This fear was compounded by the fact that it was very difficult for Aaron and those closest to him to talk about the case without creating communications that could be subpoenaed by the prosecutor, which led him to discuss the case with very few people. Also, as the report reveals, an early attempt to draw action to the case online led to an angry reaction from prosecutor Steve Heymann. Given that Aaron and his team were seeking a plea deal with a prosecutor who already escalating charges against Aaron, it’s understandable that people were worried about harming Aaron’s situation by making noise.

Blaming the MIT community’s lack for response for MIT’s studied inaction is, for me, is an embarrassing evasion of responsibility, 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.

It’s helpful to understand why MIT’s leadership did what it did. It’s understandable that, before they knew who was accessing JSTOR that they sought help from the Cambridge PD, which ended up bringing the Secret Service into the case. But for well over a year, MIT knew that its network had been accessed by a committed activist who was most likely making a political statement, not attempting to sell JSTOR to the highest bidder. They were extensively lobbied by a long-time employee who made a simple request for MIT to make a statement similar to the statement JSTOR made. They heard from MIT professors and from scholars outside the community, yet they clung to a stance of neutrality that, as Abelson’s report notes, systematically favored the prosecution over the defense.

The New York Times reports that MIT was “cleared” of wrongdoing in Aaron Swartz’s prosecution and death. I think the report presents MIT with two equally serious charges: a failure to act ethically, and a failure to show compassion. According to Abelson’s report, MIT’s president, chancellor and Office of the General Counsel did the minimum – and sometimes less than the minimum, when they failed to respond to defense subpoenas – in allowing Aaron Swartz and his team to mount a defense. In the process, they ignored the pleas of a long-time colleague who was desperately working to defend his son.

MIT has a different president than it did for most of the Swartz case, and the ball is now in President Reif’s court to change a culture that was unwilling to take moral leadership in the case of Aaron’s prosecution. For those of us who are outraged by the inaction of MIT’s leadership in this case, we face Albert Hirschman’s famous choice: exit or voice. My friend Quinn Norton, Aaron’s partner when he was arrested, recently tweeted: “I will never work with MIT, I will never attend events at MIT, I will never support MIT’s work, and I hope dearly that my MIT friends leave.”

I would hope that there’s another option: making clear that members of MIT’s community believe that MIT has responsibilities beyond “neutral” compliance, and working to change the culture that so badly failed Aaron. Evidently, it’s up to the MIT community – and the broader internet community – to make sure this report isn’t the final word on MIT’s role in Aaron’s prosecution and to ensure that Abelson’s questions in the report do not remain unanswered. I hope that President Reif’s promise to engage with Abelson’s questions leads to real change in an institution that has much to answer for, and I plan to push as hard as I can from the inside to ensure that MIT’s response to Aaron’s death does not end with this report.