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Jan 21, 2013

Online activists and exemplary punishment

Across the world, authorities are wildly overreacting to the threat posed by online activism. History says it won't work. Expect more Aaron Swartzs, Bradley Mannings and Kim Dotcoms in coming years.

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.

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37 thoughts on “Online activists and exemplary punishment

  1. stephen Matthews

    How do the courts react to pleadings by the authorities of “special deterrence ” ?. Being a victim of such deterrence and witnessing in court the pathetic, fear mongering by ASIC’s counsel it is more disturbing to find the judges evidently swallow this confected hysteria.
    If I failed in my own defence- and I did – the greater failings were by the many Australian judges who allowed themselves to be so comprehensively traduced.

  2. Bill Hilliger

    Yep the united States of America the world’s greatest democracy; land of the free and opportunity; honor, justice; freedom of speech and expression; christian values, freedom of religion; and, under the second amendment the right to bear arms carry all sorts of guns, etc. etc. But… 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. Says it all really …you even in the USA cannot talk about some things you will be put away for life.

  3. Scott

    For every Aaron Swartzs or Moylan, there are another 300 odd people with the knowledge and inclination to do this, but are held back by the threat of punishment.
    That is why exemplary punishment is required. You can’t stop the true believers (who are going to do it regardless, martyr style), but you can stop the casual punter who does it for fun/laughs etc.

    As for your statement that governments “accept the power balance between citizens and their governments has shifted in favour of the former”, what tosh.
    In a democracy, the power balance has always been in favour of the citizen (as they elect the government).
    You don’t think that Governments are prosecuting these cases on behalf of their citizens? The household is the basic economic unit of a developed country (as everything flows down to them, including company profits) and they are the ones demanding protection from a minority that believe the internet is their personal play thing, where the normal rule of law/property do not apply.

  4. paddy

    Welcome back Bernard and what a cracker of a piece to start the new year. An excellent read.

  5. Harry Rogers

    Its a sad fact of life that communities and people only get concerned about governments involvement in people’s life to the point of harrassments when it affects their own “back yard” .

    As an aside I noticed a small article in the newspaper that stated that the US security department was cancelling their orders on those over intrusive airport scanners stating that they were’nt designed as per specifications. They even lie when they try to tell the truth. Guess what scanners have already been ordered for Australian airports???

    I wish someone in Australia would analyse how many new bits of legislation come in with each new government. The politicians that walk away after being kicked out of government and leave behind a legacy of legislation littered with acts that removes more and more responsibility from the individual and burdens society with gobsmacking intervention in daily lives.

  6. Chris Williams

    Congratulations on an excellent article – I do see this as a significant statement the likes of which we don’t see enough of in mainstream media or in Crikey itself.

    This really should be just the beginning of a new focus for Crikey, which spends far too much time on the trivia of Australian politics and not enough on the deeply troubling issues of the world. Yes corruption and incompetence of Australia’s politicians is worthy of proper investigation but Crikey’s focus is far too facile, and as such serves as a diversion from the real challenges facing Australia.

    This trivialisation is no doubt a reflection of the long term growing lack of seriousness in Australia as we become progressively dumbed down by assaults on public education and as we luxuriate in front of our Foxtel Flatscreens watching the fiftieth re-run of some soap or the latest meaningless big-bash cricket match, or attached to our Apple device downloading mountains of trivia. And all in an economy where increasingly we make nothing but holes in the ground. But Crikey needs to be a force for correcting this lack of seriousness. We used to be a tough people now we are flabby in body and mind. I am probably reading too much into this article but I detect an understanding within it of the urgent need for Australia to get real.

    In just the last few months, through research I have done via independent online news sources I have come to the conclusion that at the age of 55 nearly all of what I have taken to be true about the world has been a complete fiction. I had always thought the Matrix was a movie which extemporised on a philosophical conundrum about being human but I now see that it is one which was trying to tell me (and everyone else in the West) about the dire political challenge we face when political fanaticism gains control of power and the media in the world’s most powerful country.

    I can now see that just about everything we take to be political facts about the world and history since at least World War 2, in the mainstream media is untrue – particularly if it is sourced from the US. If the US media reports that the US is threatening the Syrian government that it must not use chemical weapons on its own citizens, that can mean one thing and one thing only – namely that Israel and its US puppet is preparing a scenario under which it will deploy chemical weapons against Syrian civilians and then using its compliant media claim that it was perpetrated by the Syrian government, as the pretext for full scale shock and awe type attacks.

    In these circumstances, the default position of any true journalist must be to doubt, and doubt with every fibre of their being, anything and everything that governments – particularly the US and Israeli governents – say about anything. Sadly the default position of journalists even in Australia, is to first question the motives, rationality and sanity of whistleblowers. They are derided as either criminals terrorists or nut-job consipracy theorists.

    Guardian journalist Glenn Greenwald is an exception that Crikey needs to emulate. In an article in the Guardian on 30 November last year he wrote not only on the inhumane treatment being meted out to Bradley Manning, but also on the scarifying contempt for Manning’s fate shown by US media.

    Greenwald writes: “Despite holding themselves out as adversarial watchdogs, nothing provokes the animosity of establishment journalists more than someone who challenges government actions…to the mavens of the US press, Assange and Manning are enemies to be scorned because they did the job that the press refuses to do: namely, bringing transparency to the bad acts of the US government and its allies.”

    Enough from me. Great work Bernard. Keep it up!

  7. fractious

    Scott #3
    “You don’t think that Governments are prosecuting these cases on behalf of their citizens?”

    Of course they’re not. If ASIC et al (I presume that’s what you mean by “governments”) were really interested in what the citizenry thought, they’d have scalps from Big Business plastering the walls of every room in the office and halfway across the lobby.

    “The household is the basic economic unit of a developed country (as everything flows down to them, including company profits) and they are the ones demanding protection from a minority that believe the internet is their personal play thing, where the normal rule of law/property do not apply””

    Utter cock. How about demands the rest of us be protected from the rorting and book-cooking Big Business gets up to all day every day? Or are you OK with Big Business an the banks and speculators ripping us off for trillions and then grabbing money off the rest of us to stay afloat, while awarding themselves multi-million dollar bonuses?

  8. michael crook

    good article, I think that the hegemony of the corporations and their government puppets well and truly puts us in the East German category, but only for those of course who actually speak out.

  9. zut alors

    Bernard is back: Crikey has managed to claw back some gravitas.

    US politicians constantly wax on about their freedoms because the more they repeat it the more inclined they are to believe it – despite the evidence.

  10. zac48

    Well done Crikey. But be carefull comrades, Steven Conroy has already opened a box of red underpants and your firewall has ears.

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