tom moody

my obligations to harvard

Harvard professor Lawrence Lessig's Tumblr post about the Aaron Swartz suicide, written several days before the Atlantic article I linked to (and read first) dances around the roles of our top academic institutions in the tragedy and makes me less certain now about what Lessig wrote in Atlantic. His advocacy for the scaling back brutal tech laws is appreciated but would love to know what he's not telling us about this case. From the Tumblr post:

Since his arrest in January, 2011, I have known more about the events that began this spiral than I have wanted to know. Aaron consulted me as a friend and lawyer. He shared with me what went down and why, and I worked with him to get help. When my obligations to Harvard created a conflict that made it impossible for me to continue as a lawyer, I continued as a friend. Not a good enough friend, no doubt, but nothing was going to draw that friendship into doubt.

I guess it's inconceivable that a good friend might tell Harvard to stick it. Possibly Lessig's contract as a law professor prohibits him from practicing in Massachusetts or elsewhere. But the Tumblr post raises an interesting issue about a statement in Lessig's later article for Atlantic: "We will never know for sure why Aaron did what he did. Any motives disclosed to his attorneys must remain secret." This is a little disingenuous since from the Tumblr post and the statements linked to therein, Lessig knows what Swartz's motives were, possibly as his one-time attorney. In the Atlantic article he argues in lawyer-like fashion that the motives don't matter (because it's just a contract dispute supersized into a crime) but they actually probably do because they were an element of the government's case. In a published response to the Media Freedom blog last year Lessig says that "if the facts are true, even if the law is not clear, I, of course, believe the behavior is ethically wrong."

As Swartz's lawyer Lessig would have to put the best possible construction on the facts (however unpleasant or reprehensible) in order to beat the government's case. That's what he's doing now, in the Atlantic essay, even though the case has gone away. The Atlantic essay also doesn't mention MIT's involvement with the government's pursuit of Swartz (only JSTOR's declaration of "no harm no foul"). In the Tumblr post Lessig says MIT should be ashamed of its role but apparently the subsequent announcement of a whitewash, er, investigation, by that university took them off Lessig's blame radar.

- tom moody

January 21st, 2013 at 6:16 pm

Posted in general