UNDERSTANDING THE COMPLEXITIES OF CIVIL DISOBEDIENCE FOR CYBERSPACE PROTESTS IN THE CASE OF AARON SWARTZ.

• Author: Liljeblad, Jonathan

1. THE FISSURES IN THE IDEA OF CIVIL DISOBEDIENCE 199 II. PUBLIC COMMUNICATION V. INDIVIDUAL PRIVACY 204 III. COLLECTIVE ACTION V. INDIVIDUAL ENDEAVOUR 207 IV. VIOLENCE V. NON-VIOLENCE 210 V. DIRECT V. INDIRECT 214 VI. REVOLUTION V. LEGITIMACY 216 VII. JUST v. UNJUST 218 VIII. SELF-SACRIFICE V. RESISTANCE 221 IX. TABLE 1: EVALUATING SWARTZ ON ELEMENTS OF CIVIL DISOBEDIENCE 223 DISCOURSE X. SYNTHESIZING SWARTZ'S STATUS WITHIN THE IDEA OF CIVIL 225 DISOBEDIENCE XI. TABLE 2: SWARTZ'S ACTIONS EVALUATED UNDER THE MAJOR 226 REPRESENTATIVE DEFINITIONS OF CIVIL DISOBEDIENCE XII. CONCLUSION 229 In September 2012, United States District Attorney Carmen Ortiz filed court documents in her prosecution of Aaron Swartz, which argued that Swartz's efforts to download academic articles from JSTOR, without JSTOR's consent, constituted a felony violation of federal laws. The facts of Aaron Swartz's prosecution are presented within the court documents. In brief, they state that while serving as a fellow at Harvard University's Edmond J. Safra Center for Ethics in 2010 and 2011 Aaron Swartz surreptitiously accessed the computer systems of the Massachusetts Institute of Technology ("MIT") and downloaded millions of articles from JSTOR, a proprietary electronic database of academic periodicals, while eluding MIT and JSTOR efforts to locate and stop him. Swartz was ultimately apprehended by the MIT police and subsequently prosecuted by Ortiz, who eventually indicted him in the U.S. District Court of Massachusetts on 13 felony counts with a potential maximum penalty of 35 years. (1) The charges against Swartz accused him of violating federal laws on wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. (2) His case caught public attention, with an ensuing controversy over the nature of intellectual property and access to information that intensified when Ortiz proceeded with a criminal case against Swartz even after JSTOR declined to pursue its civil case against him. (3) Before his criminal case could proceed to trial, Swartz committed suicide in January 2013, after which the court dropped the prosecution.

   To U.S. District Attorney Carmen Ortiz, Swartz's actions were clearly seen as being of a criminal nature. Swartz, however, arguably saw his conduct in a more altruistic light; Swartz was an Internet activist who advocated for the free flow of information. Disturbed by what he saw as the systematic restriction of knowledge fostered by academic journals, Swartz sought to make their contents more accessible. (4) Swartz's efforts to download documents without authorization from JSTOR were consistent with such goals, with the alleged intent to make information within JSTOR's proprietary database available to the public through file-sharing websites. (5) Swartz's supporters claim that his actions were a form of civil disobedience. (6) While Swartz's death makes it impossible to confirm such motives, it is possible to infer from his public statements that he did indeed interpret them as being acts of civil disobedience undertaken in service of an issue of public concern. His sentiments regarding publishers like JSTOR are made clear in his "Guerrilla Open Access Manifesto," wherein he criticizes the scholarly publishing system with the words "[t]he world's entire scientific and cultural heritage... is increasingly being digitized and locked up by a handful of private corporations" and calls upon academics to make knowledge accessible to the world. (7) In the manifesto, he specifies what he thinks is the appropriate response against such a system, declaring that "[t]here is no justice in following unjust laws. It's time to come into the light and, in the grand tradition of civil disobedience, declare our opposition to this private theft of public culture." (8) Swartz, in using MIT's computer systems to download JSTOR materials without consent, acted in a manner consistent with his own manifesto by enacting a tactic that directly opposed a system he considered wrong.

   A call for civil disobedience is a claim to a tradition exemplified by historical figures like Henry David Thoreau, Leo Tolstoy, Mahatma Gandhi, and Martin Luther King, Jr., and connotes an altruistic spirit of resistance against a system for the sake of a greater good that sustains an attendant aspiration to greater moral legitimacy. In so doing, it points to an understanding that a violation of the law may have a message that goes beyond the act of violation to address issues in the law or a government responsible for that law, and hence suggests a consideration of the violation in a larger societal context. This implies that in cases of civil disobedience a violation of a law provides value to a society and thus can be justifiable. (9) Attempts to make such claims, however, involve an antecedent requirement to verify that an act does indeed constitute civil disobedience. Evaluating a violation of law as an act of civil disobedience is relevant in legitimizing the act to both the protester who carries it out and the society that the act is meant to benefit, in that by being associated with a historical tradition populated by people seen as normatively commendable, the act rises from the baser nature of criminal conduct to the more commendable heights of morality.

   This paper, however, asserts that any evaluation of Swartz's conduct as a form of civil disobedience is complicated by the diversity in perspectives on civil disobedience and hence that Swartz's claim to the tradition of Thoreau, Tolstoy, Gandhi, and King is dependent on some clarification of the civil disobedience literature. This paper begins with a presentation of scholarship that demonstrates the diversity in viewpoints regarding civil disobedience as reflected by representative historical figures and scholars. The paper organizes the differing perspectives by demarcating the various fissures in the literature, with the purpose of identifying the major elements involved in discussions of civil disobedience. The paper uses such analysis as a framework to evaluate Swartz's actions, such that it is possible to understand the challenges to Swartz's claim to civil disobedience posed by the divisions in the literature and is hence easier to determine the status of his actions as a form of civil disobedience. The paper finishes with a summary showing to what extent Swartz's behavior fulfils any of the various definitions of civil disobedience, and concludes by observing the implications of the analysis to others who hope to perform similar acts under a claim of civil disobedience.

1. THE FISSURES IN THE IDEA OF CIVIL DISOBEDIENCE

   A review of Swartz's case as a form of civil disobedience is useful because it 1) provides an instructive example regarding challenges facing other potential actors who seek to use comparable online activities to advance their moral agendas and 2) identifies issues in the debates about the status of such activities under the law.

   From a practical perspective, Swartz's case reveals the issues confronting attempts to link Internet-based forms of protest with the concept of civil disobedience. From an academic perspective, it reveals the nature of a problem in current debates about the status of Internet-based protest as a crime or as political expression.

   Swartz's case is part of a larger phenomenon of cyberspace protests. A phenomenon that has grown in correlation with the Internet, cyberspace-related protests are often associated with the domain of Internet activities categorized under the term "hacktivism," an amalgamation of the words "hack" (to describe some display of skill with computer technology) and "activism" (to denote advocacy on behalf of a particular political or social agenda). (10) To the extent that Swartz's actions towards JSTOR were done to express concerns on a public issue, they constituted a protest that applied computer technology to advance a political and social viewpoint and so represented an expression of hacktivism. This suggests that an evaluation of Swartz's actions as a form of civil disobedience is also an evaluation of the extent to which hacktivism can make a claim to be a form of civil disobedience. As a result, the issues that arise in connecting Swartz with civil disobedience serve to illustrate the challenges in associating hacktivism with civil disobedience.

   It should be noted that "hacktivism" is a heavily contested term subject to struggles between different perspectives that seek to appropriate it as a tool to marginalize or legitimize various Internet activities. (11) The viewpoints on "hacktivism" range between those who see it as an illicit use of computer technology for reprehensible purposes versus those who assert it as an electronic means of pursuing political or social change. (12) Such differences are not insignificant since they affix the term "hacktivism" to a normative connotation that renders any activities labelled with the term "hacktivism" either as a crime deserving of prosecution or as a legitimate form of political expression deserving of protection from government constraint. Such consequences have led the debates on cyberspace protests to focus on the meaning of the word "hacktivism," the types of activities that represent it, and how it should be treated in the legal system. (13) This approach, however, involves a presumption that it is possible to form an association between alleged hacktivism and civil disobedience. Such a presumption omits an antecedent assumption that the idea of civil disobedience is itself sufficiently defined to facilitate an association with hacktivist activities. This paper asserts that this is not certain and demonstrates so by exploring the differences between the various conceptions of civil disobedience with Aaron Swartz's downloading of JSTOR materials as a case illustrating the complexities in the idea of...