Malamud described Swartz as having been “terrified” by the FBI investigation into the pacer download. Resnick recalls him worrying that the FBI was going to break down his door at any moment. And yet it didn’t seem to deter him—he continued to plot and carry out hacktivist assaults on databases designed to withhold information behind a fairly steep paywall. As the law professor Orin Kerr pointed out to me on the phone, here was the truly puzzling juncture in the data-liberation career of Aaron Swartz. “Many people would take being investigated by the Feds and let off without charges as an occasion to become more cautious and not to see it as a green light to do even more,” he said. “I would have told him not to do it, or else to do it if he wished, but to be aware that if he got caught, he was going to be prosecuted and he was going to face jail time.”
Swartz, connected to the leading legal lights of the Internet, almost certainly knew that already. Even more perplexing was that, by all accounts of those who knew his thinking best, Swartz had been drawing back from hacker activism even before the JSTOR incident. He had shifted his focus to economic inequality and health care.
“This was emphatically not what he was spending his time thinking about,” his friend Resnick said of the JSTOR hack. “At best it was a weekend project, which unfortunately went very wrong.”
I asked Malamud how terrified Swartz could have been if the pacer episode didn’t stop him from even a casual hacking of JSTOR. “I think he was still terrified, but he was also brave. He saw this as something that was right to do, and so he did it.”
The moralistic language spoken by the Open Access movement—with its invocations of Gandhi, Martin Luther King Jr., and Rosa Parks—may seem slightly perplexing to those of us raised with the common-sense view that works of science, art, and culture circulate in our society through institutions that fund them by charging fees to the public to access them. But the partisans of the open Internet were informed by a different experience and set of ideals than the rest of us, those of a techno-utopia that really existed and has been continuously under siege ever since John Perry Barlow, the former Grateful Dead lyricist turned Internet visionary, co-founded the Electronic Frontier Foundation and declared the independence of cyberspace as a self-regulating realm of perfect freedom beyond the reach of any territorial government’s laws.
That Swartz was a self-described hacker mattered greatly to his legal fate—through constant repetition in the media, many have come to associate the term with criminality, the breaching of restrictions on access, the stealing of secrets, even acts of espionage and cyberwarfare. But in the term’s original incarnation at MIT, the hacker was a kind of monastic devotee of the computer who practiced a new kind of ethics calibrated to explore the new world it was creating.
Steven Levy, in his seminal book Hackers, neatly evoked the working principles that governed the hacker ethic: “Hackers believe that essential lessons can be learned about the systems—about the world—from taking things apart, seeing how they work, and using this knowledge to create new and even more interesting things,” he wrote. “They resent any person, physical barrier, or law that tries to keep them from doing this.…Imperfect systems infuriate hackers, whose primal instinct is to debug them.…In a perfect hacker world, anyone pissed off enough to open up a control box near a traffic light and take it apart to make it work better should be perfectly welcome to make the attempt. Rules that prevent you from taking matters like that into your own hands are too ridiculous to even consider abiding by.”
The book describes all the hacker rule-breaking that unfolded in the MIT artificial-intelligence labs, with hackers crawling through the vents, stealing and making unauthorized copies of keys, to get access to the tools they needed for their explorations. Administrators at MIT have been dealing with, and indulging, such spirited rule-breaking for decades. MIT hacks usually involve some inventive mischief in the physical world, such as affixing parlor furniture to the underside of a campus archway, or stealing the Caltech cannon and transporting it across the country. No one is arrested or imprisoned for what everyone understands is an exercise of the high spirits of brilliant young men who earn their indulgence by being members of a technological elite at an elite institution. MIT hackers breach security to test their powers, to repay the insult of keeping them out, and never for base personal gain, never in order to steal credit-card numbers like some computer-enabled foreign thug. And yet the laws that keep out the Russian mob invariably end up prohibiting much of what the hackers do. And therein lies the tension: between the rules that can and should govern elite cadres of monastic devotees of knowledge in itself and the rules that can be applied to society at large. The sharing ethos confined to the MIT artificial-intelligence lab was a great boost to technological progress; but released into the world, it has produced waves of innovation and disruption about which it takes a nearly religious faith to trust that they will all result in outcomes that will be better for everyone.