Much of the discussion following the death of Aaron Swartz relates to the issue of disproportionate prosecution.
Legal heavyweights and online activists discuss whether Massachusetts prosecutors were pursuing him overzealously, and the nature of Swartz’s alleged crimes when he downloaded 4 million articles from JSTOR, an archive to which he had legitimate access. Swartz faced up to 35 years in jail for downloading the articles. The prosecutor responsible for the pursuit of Swartz, Carmen Ortiz, last week tried to wash her hands of responsibility for his death.
Whatever the legal and procedural merits of Ortiz’s pursuit of Swartz, aggressive over-prosecution is normally the fate of anyone deemed to be an online activist.
Bradley Manning faces life imprisonment for leaking evidence of US war crimes, should the US military ever cease regularly delaying his trial. Manning was even found by a US military judge to have been systematically mistreated while in custody.
Barrett Brown currently faces 45 years in prison for, inter alia, posting a URL and quoting a Fox News threat to kill Julian Assange in a tweet.
Hacker Jeremy Hammond faces life in prison for allegedly breaking into the emails of self-promoting “alternative CIA” Stratfor, a global intelligence company. Hammond’s case is in the hands of a judge who is married to one of the hack’s victims.
Then there’s the case of Julian Assange, who is either the victim of an international conspiracy to keep him permanently entangled in criminal prosecution, or who has a strange capacity to induce irrational and obsessive overreactions from governments.
The list goes on and on — there’s the over-the-top raid on Kim Dotcom in New Zealand, which turned out to be illegal, along with the spying on Dotcom by a New Zealand intelligence agency that is now the subject of an inquiry.
We have our own version here with the absurd overreaction to Jonathan Moylan’s Whitehaven Coal hoax, with the Australian Securities and Investments Commission “raiding” his camp and “seizing” his belongings for the crime of making lazy investors and journalists look stupid. As Clive Hamilton pointed out, the hoax achieved a rare consensus across the political spectrum, from coal apologists like Nikki Williams and right-wing whingers like David Murray to Paul Howes and Joel Fitzgibbon, from Fairfax to The Australian, all united in condemning an act the actual damage of which, apart from to egos, is rather hard to delineate.
There’s some legal reasoning — cited by a critic of Swartz’s — that ideologically-motivated acts of public disobedience should be punished more harshly than common criminality, because ideologically-motivated protesters are likely to continue to break what they see as bad laws, whereas those motivated by personal gain may be deterred by punishment. It’s called “special deterrence”.
Evidence shows this theory is actually applied, at least the other way: large corporations that have engaged in repeated, systemic, even industrial-scale invasion of privacy, either with the cooperation of users (Facebook) or not (Google), have managed to escape substantial penalties or avoid prosecution of any kind. It’s a similar story in Australia with Telstra being repeatedly guilty of privacy breaches, for which it has only receiving “warnings” and been asked for undertakings.
ASIC, which is threatening Moylan with 10 years’ imprisonment, has a similar record of failing to punish large corporations. Instead it prefers to cut deals with companies like the Commonwealth Bank and Leighton. ASIC is widely acknowledged to be one of the country’s most ineffectual regulators; as Ian Verrender once noted, the regulator is so inept at successfully prosecuting large companies that it appears to prefer the pre-emptive surrender of the “enforceable undertaking”.
So, if you’re a large, powerful corporation breaking laws, even systemically, the prosecutorial zeal demonstrated toward online activists vanishes, replaced with a willingness to accommodate you on the basis that you commit not to do it again… and again, and again.
“… activists, whistleblowers and business opportunists [are] using the flattened information hierarchies and easy, rapid distribution systems of the internet to undermine government and corporate élites.”
But the selectivity of governments in punishing online lawbreaking can rapidly undermine any legitimacy “special deterrence” has. There’s an entire market for zero-day exploits in which hackers and “exploit brokers” profit from selling undisclosed software security weaknesses to whoever will pay for them — including government agencies, and not just the usual suspects like China, but US government agencies. The sale of these exploits isn’t only for cyber defence but to enable surveillance and to develop cyberweapons, the best example being Stuxnet.
This is consistent with the US government’s own relaxed approach to laws around surveillance. This is the government that, not content with having some of the most surveillance-friendly laws outside of Beijing, spied on the internet usage of all American citizens, then got Congress to retrospectively make it legal; this is the government that has admitted committing a breach of the constitution in its surveillance of Americans; this is the government that has declared “war on whistleblowers”, even when they have revealed the waste of hundreds of millions of dollars by the government.
And the logic of “special deterrence” is further undermined by the treatment of Dotcom, a man transformed by his persecution into an online activist hero but whose motivations have always been purely commercial.
In fact the legal response to Moylan — and to Swartz, Hammond, Manning, Brown, Assange Dotcom and many others — is part of a much longer tradition, of exemplary punishment. Exemplary punishment is a technique used by élites when they become aware that their power is being undermined by forces or technologies beyond their capacity to handle. Unable to strike directly against oppositional forces, they rely on heavily punishing those offenders to deter others.
An important component of this technique, and one that highlights the lie that this is about deterring ideologically-motivated lawbreakers, is to overhype the actual threat posed, and to displace the target of the threat from what it actually is — those in power — to the community. Moylan’s prank was thus said to have caused “untold harm” by Fairfax; a Daily Telegraph hack claimed Moylan had cost “mum and dad investors” hundreds of thousands of dollars. Dotcom, the US Department of Justice had claimed, ran “an international organized criminal enterprise allegedly responsible for massive worldwide online piracy… causing more than half a billion dollars in harm to copyright owners.”
This reflexive overhyping echoes the response to Assange. The WikiLeaks diplomatic cables had, numerous critics initially claimed, placed people lives in danger, done “untold damage to diplomacy” and Assange was a “high-tech terrorist”. Manning has actually been charged with “aiding the enemy” by placing material in the public domain, a charge that should terrify every journalist. Hillary Clinton declared the material released by WikiLeaks and allegedly leaked by Manning “an attack on the international community: the alliances and partnerships, the conversations and negotiations that safeguard global security and advance economic prosperity”.
What all of these incidences have in common is activists, whistleblowers and business opportunists using the flattened information hierarchies and easy, rapid distribution systems of the internet to undermine government and corporate élites who have long relied on information control. Indeed, Swartz’s action was the quintessence of this. Even Moylan’s prank reflects how once-trusted forms of information distribution — an official, authentic media release — can be easily mimicked in an online media environment. Pranks can also reveal how few journalists, especially in business media, have the time or, apparently, even the inclination to display scepticism toward what they are being fed.
But here’s the problem for lawmakers and law enforcers: exemplary punishment doesn’t work. Exemplary punishment merely serves to draw attention to acts of civil disobedience or ideologically-motivated lawbreaking — exactly what their perpetrators want — to motivate supporters and engage the uninterested by outraging their sense of justice. Martin Luther King’s civil rights marches in the south in the early 1960s were perfect examples of this, despite the very “special deterrence” handed out via billy clubs, dogs and fire hoses. Exemplary punishment didn’t work in England in the 16th or 19th centuries in the face of threats like Protestantism or trade unionism. Indeed, Foxe’s Book of Martyrs, a collection of stories about Protestant victims of persecution, became a key propaganda work in the English Reformation.
Eventually, élites either have to shift to a full-scale surveillance state like East Germany or Iran, inculcate self-censorship like the Chinese government or accept the power balance between citizens and their governments has shifted in favour of the former.
Anyone whose job relies on controlling information, of any kind and in any way, needs to understand that that job is changing rapidly because the internet has massively reduced the cost and difficulty of moving large amounts of information around. Regulators, law enforcement and policymakers need to understand that whether they like it or not, there will be more Aaron Swartzs, Bradley Mannings, Julian Assanges, and Kim Dotcoms. Reacting like a 16th century monarchy isn’t going to help one bit.