David Byrne's Journal: 02.05.13: Civil Disobedience

How does one react to laws and practices that seem to be unfair or bordering on immoral? What is unfair and immoral depends on one’s point of view, of course. As I think about this I suspect we should be following the example of Gandhi or the Civil Rights activists in the Southern U.S. who sat at lunch counters where they weren’t allowed and refused to ride in the back of busses—or automatically give up their seats for white people.

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And these folks were sometimes willingly and peacefully hauled off to jail as a result—though they were often also harassed by locals. Here is a policeman harassing folks who want to sit at a lunch counter in Oklahoma.

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Draft resisters who opposed the Vietnam War similarly voluntarily went to prison. All of these people opposed laws that were accepted, on the books, but that they decided were unjust. Daniel Ellsberg, the former Defense Dept. employee who eventually decided to distribute what became known as the Pentagon Papers described the moment when he decided that he had to take action in response to what he felt was an unjust war: 

“And he [Randy Kehler, a draft resister] said this very calmly. I hadn't known that he was about to be sentenced for draft resistance. It hit me as a total surprise and shock, because I heard his words in the midst of actually feeling proud of my country listening to him. And then I heard he was going to prison. It wasn't what he said exactly that changed my worldview. It was the example he was setting with his life. How his words in general showed that he was a stellar American, and that he was going to jail as a very deliberate choice—because he thought it was the right thing to do. There was no question in my mind that my government was involved in an unjust war that was going to continue and get larger.”Source

Ellsberg decided to release The Pentagon Papers. These were documents that made clear the hubris and hypocritical decisions that were affecting soldiers on the ground in Vietnam. Though many of us suspected that what was contained in these documents was already common knowledge, to make it public and verifiable was a big step. I would argue that his actions—and the subsequent publishing of the papers in the NY Times and Washington Post—hastened the end of the Vietnam War (as the Wikileaks data leaks have, in my opinion, hastened the ending of the U.S.-backed invasions of Iraq and Afghanistan).

Ellsberg was, like his inspiration Kehler, willing to face the consequences and publicly surrendered to the Boston DA's office, facing charges that carried a maximum sentence of 115 years. In admitting to giving the documents to the press, Ellsberg said:

“I felt that as an American citizen, as a responsible citizen, I could no longer cooperate in concealing this information from the American public. I did this clearly at my own jeopardy and I am prepared to answer to all the consequences of this decision.”Source

Is there a contemporary equivalent to these actions? If we, as citizens, feel an injustice, an immoral act is being committed in our name, in our nations name—is this a model of an effective way to draw attention to it? To effect change?

It’s sometimes dangerous—a young woman who sat down in front of some Israeli bulldozers as a protest against illegal settlements was killed. That’s worse than the threat of going to prison. One aspect of this kind non-violent of protest is the fact that it relies on media being present. Otherwise, it doesn’t draw attention to the issue, and similarly, the action has to be done publicly. Me privately deciding not to pay taxes that go towards the invasion of Iraq, to take a hypothetical example, doesn’t serve as a protest unless I crank up a publicity machine, let everyone know I’m doing this as a protest, and then willingly face the consequences.

I’ve been following the canonization of young Aaron Swartz—the coder, hacker, and digital rights activist—after his recent tragic suicide. For those who haven’t been following this, it seems he illegally hacked his way into an MIT database that contained many, many academic and technical papers and downloaded them onto his hard drive, rather than paying for access. Why did he do this? Do we know?

It took a little poking in the Internet, but it seems this theft of data was Swartz’s own form of civil disobedience. Here is what he wrote:

“Information is power. But like all power, there are those who want to keep it for themselves. The world’s entire scientific and cultural heritage, published over centuries in books and journals, is increasingly being digitized and locked up by a handful of private corporations. Want to read the papers featuring the most famous results of the sciences? You’ll need to send enormous amounts to publishers like Reed Elsevier.”Source

Later in his manifesto he suggests “liberating” this data that is “locked up”:

“Meanwhile, those who have been locked out are not standing idly by. You have been sneaking through holes and climbing over fences, liberating the information locked up by the publishers and sharing them with your friends. But all of this action goes on in the dark, hidden underground. It’s called stealing or piracy, as if sharing a wealth of knowledge were the moral equivalent of plundering a ship and murdering its crew. But sharing isn’t immoral — it’s a moral imperative. Only those blinded by greed would refuse to let a friend make a copy.”Source

So, we can assume he covertly stole the data to draw attention to a perceived injustice—that he felt that the academic papers in the JSTOR archive were unfairly behind a paywall and should be available to all. Following the imperative of his manifesto one might assume he was going to give them all away—to make them free, as he thought they should be. He didn’t. (He certainly wasn’t going to sell them himself.)

His theft was done surreptitiously, so it seems he didn’t want to get caught in the act, though maybe he thought it was going to be OK and he wouldn’t actually get caught. Sort of an unreasonable assumption given that someone makes money on this stuff—but given his skills as a coder and hacker, maybe not an unreasonable assumption.  We also might assume that he was then going to proudly and publicly announce that he had “liberated” these documents to draw attention to his position. This public “liberation” would also be a sort of “come and get me” action. Like the Civil Rights activists, he would, one might assume, be willing to face the consequences in order to draw attention to this perceived injustice. I don’t think he did that either. He was a disturbed young man, and seems to have hesitated in carrying out the typical civil disobedience agenda.

What bothered him so much about this archive of data behind a paywall?

What’s the deal with these academic archives? How do they typically work?

Like music and movies that are legally controlled by copyright holders—typically movie studios or record companies—many academic databases contain papers and other material that are proprietary. Institutions or individuals therefore have to subscribe to access them or pay a fee to get to download these papers. LexisNexis is one such academic site in which the material is protected by a pay wall; Swartz downloaded his documents from a similar database called JSTOR. Needless to say, he didn’t pay for them.

Where does the money that subscribers pay to these services go? Do the poor academics who did the research and wrote the papers get some part of those fees? One would hope so, but I have my doubts that they get very much of it. Academics get paid by their institutions, and are obliged, but not paid, to publish papers like the ones stored in JSTOR. They don’t necessarily get paid for publishing these papers, but they have to do so to eventually get tenure and keep up their academic standing. They usually publish their work in various academic print journals, and it is often the journals that by default post their papers on JSTOR or similar sites. The academic is, one might say, coerced into placing their work behind the paywall. Record companies who own the copyright on many of my recordings place those recordings in places where I might not wish them to be—it’s an ongoing battle… another story. JSTOR and others funnel their income to the journals who own the rights to the papers. One hopes the journals would pass some of that income on to the writers. This reminds me of my own pathetic income from Spotify and other services that record companies place my recordings on—the income I get is so small that it’s essentially nothing.

While I can empathize both with academics who might either want to monetize their research or those who might want to make it freely available to all—the choice, ideally, should be the authors’. One would assume that this is one of the issues young Swartz was trying to draw attention to.

LeeAnn Rossi writes—in the case of JSTOR, institutions pay a one-time Archive Capital Fee (which fluctuates based on size of institution and amount of access to documents granted) plus an Annual Access Fee. From the breakdown of their 2008 tax documents, it looks like they [JSTOR] made $43m and had expenditures of $35m, giving them an $8m profit (they're registered as a non-profit organization). Of those expenditures, $8.3m were under the line item "Publisher's Fees and Payments", though there is no breakdown for how the Publisher accounts to the Author on the backend. From this article—it sounds like the name of the game in the academic world is that authors and scientists don't get paid for their peer-reviewed work in journals or on databases at all. Another anti-academic publishing article ironically ends with a nod to this article, which you can't read because it's behind a paywall.

Ultimately that is all irrelevant, the point is the owners of this material have their work behind these pay walls. The authors were coerced maybe, unfairly, probably, but there it is. It’s legal. Unfair maybe, but legal. Swartz, as I understand it, was an advocate for “free”—that all of this information (and presumably much other copyrighted material) created by others should ideally be free and available to all. Information, especially scientific and academic information, should, in this view, be intrinsically shared. Information, like that contained in these papers, is what scholars use to inspire themselves and it often serves a foundation for their own research. They therefore don’t have to reinvent the wheel every time they begin some avenue of research—which would cause research to proceed at a snails pace.

Archives like JSTOR also, according to Swartz, buy up research and papers that are in the public domain, lock them up and then privatize them, as a way of profiting from works that were once available to all.

LeeAnn writes again—He was mostly fighting against what he saw as corporations owning and profiting off of something that was produced and owned by individuals who not only never recieved any compensation for their work, but also never produced it with profit in mind in the first place.

There is a big difference in my opinion between using someone else’s work as inspiration and as a stepping-stone and using that work—or work that incorporates that work—as a way to make money. I am happy, for example, for people to slice and dice my recordings, for example, recordings they have legally obtained, and play around with them to their hearts content as long as they don’t decide to make money from their work—either directly or indirectly. I am, I think, quite open about sharing income if someone builds on my work—but the crucial concept is “share”. (I have to point out that even posting songs on YouTube these days is in fact selling something—it is monetizing someone else’s work. YouTube makes money on the ads that are all over their site. It’s not an altruistic “sharing service”.)

But back to civil disobedience. Swartz stole the material, pure and simple, and he seems to feel that he and others have, in this case, the right to steal because they are beholden to a higher moral standard. I am sort of fine with this if he’s willing to accept the consequences, as Ellsberg and the Civil Rights activists were. I sort of feel the same way about Wikileaks—though much of the data they make available wasn’t “stolen” by them, they do know that under many nation’s laws disseminating that data is illegal. (Significantly, the NY Times and Washington Post were not prosecuted for printing the Pentagon Papers—though Nixon tried to do so—and these same papers were not thrown in jail for printing Wikileaks excerpts.) And as much as I’m glad they made the horrors of the U.S.-led invasion of Iraq obvious, Assange might face jail under U.S. law—though I’m happy that more corporate and military misbehaviors are made public.

If Ellsberg and the Civil Rights activists were willing to go to jail, should Assange and Swartz and (Oh jeez, am I writing this?) poor Bradley Manning be willing go to jail too?

I’m going to shift the subject for a minute.

I wonder where one draws the line with “higher morality” used as a justification for breaking the law. When do acts based on one’s moral indignation become unjustified? I empathize with many of the actions above, but there are also acts made by those who similarly claim to be impelled by a higher moral calling that I find repellant and horrible.

Lots of religious fanatics claim to be acting based on higher moral standards—and they’re quite public about it: lunatics, building bombers, abortion clinic bombers. Lots of wars have been fought by the U.S. and others based on claims that God is on our side—as an argument it’s pretty risky. In the case of civil disobedience, a lot depends on public opinion and how the media delivers the news of the action to that public. In some cases, it is assumed that the civil disobedience is not doing a lot of harm—unlike abortion clinic bombings mentioned above. No one was harmed by Rosa Parks, certainly, but I’m sure the Nixon administration made a case that Ellsberg’s leaks damaged national security—as the Obama administration has done with the Wikileaks material.

In civil disobedience actions it’s critical how the acts play out in public—that the perception be that they have done good, not harm.

What was the reaction when Swartz’s theft was discovered? In this case it seems MIT may have erred in calling in the Feds to handle a matter of theft within their academic community—even though their rulebook may have said that was the thing to do. The Feds seem to have overreacted too—they proceeded even after JSTOR dropped charges when Swartz returned everything and promised not to distribute or use it. (I thought his whole point was to distribute it!?) Some think it was a way to get to Swartz after they failed to prosecute him for the PACER documents he posted in 2009.

This reminds me of the way the entertainment industries often overreacted to kids and grannies who were busted for file sharing (downloading copyright material without paying for it). By overreacting, the institutions helped folks to empathize with those they were prosecuting.

However, Swartz fought back. If Swartz had admitted the theft and publicized his willingness to go to jail, as did the civil disobedience activists above, thereby bringing attention to the inordinate punishment he was receiving and to the inequities of databases like JSTOR, then he might have better made his point—in my opinion. In my opinion this was a bad move. He was, as I have read, a disturbed young man who maybe sadly wasn’t quite psychologically ready to be a Gandhi figure—should he have realized this ahead of time?

I am reminded how Jean Valjean, who stole a loaf of bread in the novel Les Mis, was unfairly punished by the authorities—which highlighted the need to overthrow the royalty.

In much of the recent discussion, Swartz is portrayed as a martyr. The fact that, yes, he is also legally a thief, is almost never mentioned. The emphasis tends towards lauding his advocacy (see higher principals, above) and there is often mention of his known mental instability, a fact that made him particularly susceptible to the kinds of harassment the Feds seem to have engaged in.

It’s very confusing for me. It’s not like he didn’t know he was doing anything wrong. He hid his laptop and hard drive in a little closet at MIT and hid from security cameras when he went there to retrieve his data trove. Imagine, as MIT seems to have briefly done, that it was the Chinese or North Koreans or some other entity stealing this data (and it very well could have been)—the “higher moral grounds” defense would then seem pretty ridiculous.

I don’t disagree with many of Swartz’s points. I can certainly see the point that much academic data, when freely available, can have a greater chance to spur insights and creativity from researchers and scientists around the world than if it is locked up behind paywalls. Withholding cancer research from academics who can’t afford access because a big pharmaceutical company “owns” the data doesn’t seem like a very morally defensible position—even if it is what the law might say is perfectly legal.

But who then decides what data “deserves” to be stolen and “liberated”? There are all sorts of data. Some of it is—though I hate to admit it—possibly essential to our security, and some is strictly personal and deserves to stay that way. It’s complicated, and this particular case seems messy—though Swartz’s points are mostly valid… but maybe his method was sloppy.

DB