You might ask, like I did, what Aaron’s actions had to do with “computer crimes.” Aaron hadn’t broken into a secure network and stolen credit card numbers. He hadn’t stolen anyone’s healthcare data. He hadn’t violated anyone’s privacy. He hadn’t caused anybody to lose any money. There are things that are “computer crimes” that we all recognize are invasive and dangerous, and this was not one of them.
But Steve Heymann did what bureaucrats and functionaries often choose to do. He wanted make a big case to justify his existence and justify his budget. The casualties be damned.
..He had the Computer Fraud and Abuse Act, which is an over broad federal statute that has been made more broad by federal prosecutors trying to stretch its terms. But under the indictment in Aaron’s case, the government still had to prove that Aaron had gained unauthorized access to a computer system. Our defense was really pretty simple. There were going to be other nuances, and we were going to talk a lot about Aaron’s motivations and the type of person Aaron was, but our bottom line was going to be that Aaron had done only what MIT permitted him to do. He hadn’t gained unauthorized access to anything. He had gained access to JSTOR with full authorization from MIT. Just like anyone in the jury pool, anyone reading Boing Boing, or anyone in the country could have done.
We hoped that the jury would understand that and would acquit Aaron, and it quickly became obvious to us that there really wasn’t going to be opportunity to resolve the case short of trial because Steve Heymann was unreasonable.
Of course, after Aaron’s passing, it’s really easy for them to say “35 years. That was a bluff. It was never gonna happen.” That was not what they were telling us. Heymann always insisted on a sentence of hard time in Federal Prison. We said, “this is really a very trivial thing. Can’t we resolve it with probation or some other thing that made a little more sense and would make it possible for Aaron to go on with his life?”
He said “no.” He insisted that Aaron plead to a felony and serve prison time. And of course, what he said, as prosecutors often do, is that if we go to trial, it won’t be so easy, and if we lose, well, this is a tough judge, and the prosecution is going to recommend a very difficult sentence. Aaron may end up having a term of years.
* Although Trump’s accusations of Obama personally ordering Trump tower to be “wiretapped” remain unsubstantiated, it’s only technically incorrect because he used the word “wiretapped” which implies specifically tapping a phone land line, as opposed to “monitoring” all communications of a target, which includes cell phone communications, email, and anything else.
* So, in a more general sense, Trumps calls WERE picked up, while government agencies were “monitoring other targets.”
* To be clear, Rowley said “I think Trump is vindicated” on this issue. So, although Trump may have been confused about the correct term to use, the essence of what he was saying was true; his communications were been intercepted. (As House Intelligence Chairman Devin Nunes has stated: there is evidence of U.S. intelligence picking up conversations by Trump while monitoring other targets.)
* Also due to this technical difference between “wiretapping” and “surveillance” or the “monitoring” of the targets in question, FBI Director Comey was technically telling the truth when he said that they had found no evidence of the wiretapping mentioned in Trump’s tweets.
* Congressional Spying was actually the exact reason that the Foreign Intelligence Surveillance Act was created; as a result of the Frank Church Committee (created when Senator Frank Church found out he was being surveilled by the NSA).
* Looking back at history, flimsy Title III orders were used by FBI Director J. Edgar Hoover against Martin Luther King Jr. (to hide microphones in his hotels), and they were based on guilt by association.
* These orders had “very little probable cause” and were usually “a paragraph or two alleging that an associate or a cousin of an associate was a communist.” These were the kinds of orders used to spy on Frank Church and others.
* With all this in mind, you would think that Congress would have considered the downsides to mass surveillance, but it looks like the last 30 years of congresspeople that came in forgot about the problem.
* Incidental collection is standard operating procedure.
* The private information of Americans is routinely intercepted in this process.
* There are repositories of “raw” (unprocessed) emails and phone calls that are place into “repositories” that intelligence analysts can then query, looking for specific information relevant to what they are working on, using keywords or names.
* When writing surveillance-based reports for broader dissemination within the intelligence community, analysts are supposed to “minimize” any privacy intrusion into Americans, “masking” any names and private information.
* Minimization rules have exceptions for leaving the private information “unmasked” if it’s impossible to understand the foreign intelligence otherwise.
* “One issue of concern is the ‘backdoor search loophole’ – when officials search raw repositories of surveillance information intending to pull out and read any incidentally collected private messages of an American – especially when those messages were gathered without a warrant in the first place.”
* The FISA Amendments Act will expire at the end of 2017 unless congress enacts new legislation extending it.
It was quite odd watching a room ponder the prospect of charging the press with criminal activity for what is considered standard journalistic First Amendment protected practice (ofpublishing classified information) as if it were some kind of allowable solution to what’s been going on with the current round of White House leaks.
This issue has already been decided on quite clearly by the Supreme Court in the Pentagon Papers case, United States v. New York Times, 328 F. Supp. 324, 329 (S.D.N.Y. 1971).
This has mostly to do with something Justice Gurfein referred to as a “cantankerous press.”
As Gurfein writes in his decision:
The First Amendment concept of a “free press” must be read in the light of the struggle of free men against prior restraint of publication. From the time of Blackstone it was a tenet of the founding fathers that precensorship was the primary evil to be dealt with in the First Amendment…
The security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, an ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know…it is not merely the opinion of the editorial writer or of the columnist which is protected by the First Amendment. It is the free flow of information so that the public will be informed about the Government and its actions.
These are troubled times. There is no greater safety valve for discontent and cynicism about the affairs of Government than freedom of expression in any form. This has been the genius of our institutions throughout our history. It is one of the marked traits of our national life that distinguish us from other nations under different forms of government.
Here’s Trevor Timm (Freedom of the Press Foundation) explaining this in a brief 1 1/2 minute video. This clip is from the upcoming film “From DeadDrop To SecureDrop.” (Transcription below):
The Supreme Court case that came out of the Pentagon Papers was one of the most important First Amendment cases of the twentieth century. It essentially is affirmed that newspapers in the United States have the constitutional right to publish information – even that the government considers “Top Secret” – that’s in the public interest, and that they cannot be censored, or what courts refer to as “the government can’t issue a ‘prior restraint.’
The opinion was written incredibly fast – from the start of the case where it went from the District court to the Supreme Court took only 13 days, which is incredibly fast. If you ever read the history of Supreme Court opinions, it usually takes years to get there. And so, all nine judges wrote separate opinions, but the core of the case still stands, which is that unless there are extreme extreme circumstances – which we have never seen in this country – that newspapers and journalists have the right to publish classified information. And because of this, we have learned so much more about what our government does behind closed doors.
Often, what they do, that is immoral and wasteful and illegal, we never would have known without this decision.
EFF and other lawyers will lead a conversation about the current issues and threats in constitutional law. Focusing on specific sections and amendments we will talk about current cases on censorship, surveillance, search and seizure, and more.
Workshops on using encryption tools and maybe musical performances will accompany.
If you want to present, perform, or have other ideas, please email us.
In the days immediately following Aaron’s death, Justin Peters was one of the many reporters that contacted me in the hopes of figuring out what happened.
I wasn’t much help at all figuring that out, because, at the time, I had no idea about the situation, except what I had read in the press.
What I could tell them about was Aaron in his youth, what it was like working with him when we were starting Creative Commons, a bit of the ideology behind it, and some of the movements that followed.
Most of the reporters weren’t as interested in Aaron’s history as much as the tragedy at hand. Justin Peters, who was writing an article for Slate magazine, was different. He seemed to care not only about what had happened, but also, what events could have possibly led up to that outcome, on a historical scale, in the context of everything else going on during the time.
He was obviously trying to understand a lot more than the basic facts of what had taken place. He was asking real questions, trying to get to the bottom of the mess, but also asking the larger, looming questions, like: how could something like this happen in our democratic “free” society? How do things exist in our country like having to pay by the page to access the law (as is the case with PACER) or having to pay $50 an article to access anything more than the abstract of a scientific journal (unless you had already bought your way into a prestigious university)?
We talked about a lot of subjects that might have seemed tangential to many. Aaron was involved in a lot of different important projects, all at once. Justin seemed to be trying to understand how it all fit together. I spoke to Justin for a long time on two separate occasions. The second time we spoke, he admitted that he wanted more information for something “that might go beyond this story for Slate.”
The Slate article came out and was quite comprehensive. A few months later, I heard that Justin had gone on leave from his job to write an entire book on Aaron Swartz.
I caught up with Justin to ask him about what kinds of things he learned in the process of writing the book.
Lisa: How was it that you came to realize that you really felt the like to wanted to create a book on this topic?
Justin: Even though the Slate article turned out to be 15,000 words long, I felt that I was barely scratching the surface of the story of Aaron’s life and the circumstances of his death. In order to tell the full story, I would have to explain just how we got to the point where academic research papers were considered private property, and downloading those papers without explicit permission could be deemed a federal crime. And I eventually realized that the only way to adequately answer these questions – which seemed so central to understanding Aaron’s story – would be to write a full-length book. Once I came to that conclusion, there was no turning back.
Lisa: Did anything specific make you say to yourself – I want to keep going with this. (When you were researching.)
Justin: In August of 2014, I went to Champaign, Illinois to look at the personal papers of Michael Stern Hart, the founder of Project Gutenberg. At that time, the book was not going well: the chapters weren’t coming together, I was struggling to connect the history sections with the Aaron Swartz sections, I was close to blowing my first deadline, and I felt stymied by my own authorial limitations and basically wanted to just give up on the project. And then Hart’s personal papers turned out to be really, really fascinating and rich in detail. The two days I spent in the archives there, researching the genesis of Project Gutenberg and the life of its creator, really gave me a second wind—and gave me an obvious bridge between the history chapters and the modern-day chapters. I walked out of the archives saying “I know how to do this now! I have to tell this story!”
Lisa: Let’s talk about that. It sounds like you had one vision of the book going, that wasn’t working out, and you became inspired after looking through the personal papers of Michael Stern Hart. How did you even end up looking at his papers? How does Project Gutenberg tie in with Aaron’s greater story?
Justin: Yeah, that’s basically right. I had always known about Project Gutenberg, but I didn’t realize that it had been around in one form or another since 1971. When I learned that, I started thinking “Wow, that’s super early! I bet there’s a good story there.” I love archives and primary sources—there’s no better way to learn about a person than to examine his or her own writings—so when I learned that Hart’s papers had been preserved at the University of Illinois, I booked a ticket to Champaign almost immediately. And as soon as I started examining his papers, I found that Hart sort of reminded me of Aaron, in terms of his idealism, his precocity, and his interest in free culture. Project Gutenberg was perhaps the first digital attempt to digitize public domain material and bring it to the masses for free. I see Hart as a kindred spirit to Aaron, and the story of Project Gutenberg as very much a predecessor to Aaron’s own work with the public domain.
Lisa: Do you see what happened to Aaron as sort of the latest chapter in an ongoing struggle between Copyright and the Public Good?
Justin: That’s absolutely right. This struggle has been going on for literally centuries. Over the last several decades, the people who have advocated for longer copyright terms have been winning. They’ve been very successful in not only lobbying for laws that support their position, but in making the argument that longer copyright terms serve the public good; that functionally eternal copyright benefits the public by ensuring that authors will see more profit from the sale of their works, and thus hopefully write more works. Every time a new communications technology becomes popular, this struggle renews itself, with increasing ferocity. Aaron was, in part, a casualty of this struggle.
Lisa: My takeaway from the early chapters in the book was that The Statue of Anne’s existence was never actually to “protect authors,” but rather, was aimed at securing publisher’s profits, from the beginning. Is that correct?
Justin: The British publishers and printers who lobbied for the Statute of Anne in the early 18th century wanted to protect their own interests first and foremost. They knew that a copyright law would help stabilize their own businesses and their own profits, and help stifle competition in the industry. And they realized that the best way to obtain that law was to convince Parliament that the law was primarily meant for the benefit of authors and readers. The printers were being disingenuous, and they knew it.
That said, the Statute of Anne did end up helping authors. That’s important to acknowledge. By decreeing that copyright belonged to the author, as opposed to the publisher or printer, Parliament gave British authors a measure of control over their own works, and framed copyright as a production incentive instead of just a censorship tool. Authors in England had absolutely zero legal standing prior to The Statute of Anne. The Stationers’ charter didn’t mention authors at all; it was all about giving printers absolute and perpetual control over the works they published. By saying — however disingenuously — that authors themselves held the right to copy their own works, the Statute of Anne at least advanced the notion that the author was an integral part of the publication process, and I think it’s fair to interpret this as a step up for authors from where they were before.
Lisa: One last thing: Am I to understand that Noah Webster of all people is mostly to blame for convincing our country’s early politicians to adopt systems much like England’s copyright infrastructure, state by state, after The Articles of Confederation were established?
Justin: If anyone deserves the title of “The Father of Copyright in America,” it’s probably Webster, who, as a young man in the 1780s, went around lobbying the various state legislatures on behalf of authorial copyright. Before he compiled his famed Dictionary, Webster was a tremendously ambitious young striver who had written a spelling textbook that he hoped would become nationally popular, and in the process, make him rich and famous. So he spent years making the case for copyright—and for himself—to legislators and civic leaders across the new nation; when Congress passed the first federal copyright act in 1790—the law was based on the Statute of Anne—Webster took credit for having brought the matter to the nation’s attention.
Lisa: You just wrapped up your book tour, but you mentioned you were open to doing more book signings or events in the future?
Justin: Yes. Please contact me on Twitter @justinrevett or email me at: justintrevett at fastmail dot fm, if you’d like to try to bring me to an event in your town. Thanks.