On Tuesday, the Massachusetts Institute of Technology released a report, produced by an internal “Review Panel,” on the school’s actions during the prosecution of Aaron Swartz, which ended in January when he committed suicide at 26. Swartz was facing a trial for allegedly using MIT’s network to download reams of scholarly articles from the online resource JSTOR, a violation of the Computer Fraud and Abuse Act. 

His friends and supporters have criticized the school’s behavior throughout the course of this saga. And although federal prosecutors from the US Attorney’s office were the ones investigating and prosecuting Swartz, after his death, Swartz’s family said at one point that “decisions made by officials… at MIT contributed to his death.” 

Swartz’s supporters are not happy with MIT’s new report: Taran Stinebrickner-Kauffman, his partner, called it a “whitewash”; law professor Lawrence Lessig, a friend of Swartz, criticized the report’s emphasis on the school’s “neutrality.”

Although the review panel was told not “to make judgments, rather only to learn and help others learn,” its findings aren’t as neutral as it wants to believe. Its perspective is present throughout, but expressed clearly only once, near the end of the report: “MIT aspires to be passionate about its principles, but we must also behave prudently as an institution.” Swartz’s supporters have been arguing, even before his death, that MIT erred too far on the side of prudence in pursuing legal action against Swartz for his downloading; how to balance their view and MIT’s interests is the key issue here. 

After all, as the report says, “MIT celebrates hacker culture.” Why didn’t the school, inspired by that institutional value, support Swartz against federal prosecutors? They demurred because MIT’s leaders did have an opinion about Swartz and his actions. And that opinion is that Swartz’s actions were not actually representative of the school’s principles—he might have been hero to hacktivists who believed in free-flowing information, but to MIT administrators, he was a problem. 

The report itself mostly skirts the question of principles vs. prudence. The issue doesn’t really appear until page 99, two pages before the report ends and the long appendices begin.

“[H]as MIT become overly conservative in its institutional decision-making around these incidents?” the panel asks. “More than once in our interviews, the Review Panel heard members of the MIT community express a feeling that there has been a change in the institutional climate over recent years, where decisions have become driven more by a concern for minimizing risk than by strong affirmation of MIT values. Several people interpreted the Institute’s response in the Swartz case in that light.”

Reading the report, it’s hard not to join them: The entire text feels like a rambling, badly organized defense. It tracks closely the opinions and thinking from the highest levels of the MIT administration and the school’s lawyers. And that thinking, according to the report, is that the school was justified in not sticking its neck out.

The story that the report presents is that MIT decided to remain neutral throughout the case. Although federal prosecutors listed MIT as a victim of Swartz’s actions, the school says it did not help prosecutors any more than it was required to, or than it helped the defense. The report’s main argument is that MIT was not asked, initially, by Swartz’s defense team to intervene on his behalf and that—even if the school had intervened—its influence wouldn’t have made a difference.

It’s a little bit more complicated than that, though.

Here’s one example. Early in the report, the panel writes that MIT stayed neutral because of “the good faith belief, based on private conversations with the lead prosecutor, that the Institute’s opinion would have no effect on the prosecution.”

But here’s what the report says later, about those private conversations:

“[MIT’s attorneys] took the opportunity to suggest that some people at MIT would be likely to view the prosecution negatively. The lead prosecutor replied that he understood the complex dynamics at MIT. He said that he had also been in touch with JSTOR and understood their perspective, and had taken both into account in moving forward with the prosecution…”

It’s a detail, but the report seems to be saying both that the prosecutor didn’t care what MIT had to say and that, in fact, the prosecutor had considered what MIT had to say. 

And it’s not like MIT has been shy about fighting legal battles—when it wants to. While remaining studiously neutral in Swartz’s case, “MIT decided that it would not be fully neutral with regard to defending anticipated possible attacks on MIT’s employees or the Institute’s integrity,” the report says. Mostly, that seems to mean that the school was willing to fight on the same side as the prosecutors to keep the case from going to trial. And the school has continued to aggressively defend itself: It intervened, for instance, in a FOIA case in which a Wired journalist is fighting for access to records about Swartz’s prosecution. Citing the negative attention the school has received since Swartz’s death—including, the school says, three attacks on its servers—MIT’s lawyers have argued that the school should have the chance to review these documents before they’re made public and redact information that would threaten “the safety of its employees and the security of its networks.”

In Swartz’s case, MIT didn’t want to fight on his behalf. “MIT felt no sense of obligation toward someone who had abused the open access privileges it had provided for the convenience of guests, even if that abuse was carried out in the name of open access,” the report says. In other words, MIT’s leaders (and its lawyers) didn’t believe that Swartz was exemplifying the spirit of the school or acting in line with its values. The administration saw him as someone who had violated the rules. However passionate Swartz was about values that others might see as MIT values—however much hacker culture has rallied behind him—he didn’t behave prudently. And to MIT’s administration, that was what mattered more.

Disclosure: CJR has received funding from the Motion Picture Association of America (MPAA) to cover intellectual-property issues, but the organization has no influence on the content.

If you'd like to help CJR and win a chance at one of 10 free print subscriptions, take a brief survey for us here.

 

More in Cloud Control

WaPo makes a Switch

Read More »

Sarah Laskow is a writer and editor in New York City. Her work has appeared in print and online in Grist, Good, The American Prospect, Salon, The New Republic, and other publications.