Trying to make sense of the state response to “hackers”

Like many people, I spent all weekend reading every post and every news story about Aaron Swartz—whom I did not know, but whose work I respected. This weekend was the anniversaries of the deaths of two very dear family members as well, and so the news of his death and reading the sometimes too heartbreaking to bear posts by those who were close to him, added to that grief and the heaviness of the world.

Among the multiplicity of posts from many of the people who knew, loved, and respected him, I read Biella Coleman, Adrian Chen, and danah boyd’s articles that all discussed in some way the state response to “hackers” in the US very closely.  I also read Jennifer Granick’s posts about US law and Aaron Swartz with great interest. The Economist has also just published an obituary.

My degree is in Political Science and one of the central veins of inquiry in the discipline has been the development of the modern state—and so, I have this general narrative in my head to explain state development that goes like this:

Citizens of the “modern state” have an unprecedented relationship with the state that is the result of a long process of historical development.  Over centuries, the state systematically made itself the primary authority within a given territory making subservient all other forms of authority—e.g. religious, familial, political—often through violence.  This relationship was also an innovation in the relationship between the individual and the state. In this relationship, the individual became constantly visible to the state—observed, counted, and controlled.  James Scott talks about this process at great (and beautiful) length in Seeing Like a State.  As I tell my students, this sounds chilling, but it is a relationship that we benefit from in many ways.  Because we are seen, we receive social benefits and we are protected.  Some scholars, such as my mentor Joel Migdal, argue that in places where this process was not completed—such as colonial West Africa—the result has been challenging conditions for both a state that wants to rule and populations that want better lives.  Others, such as Jeffrey Herbst, argue that in instances where there are other authority figures, such as chiefs or religious leaders, who are not incorporated into the state but who can mobilize the population, we are more likely to see protracted civil war in which neither side can win.

Joel Migdal sometimes begins his classes by saying that there are the people who make the rules and the people who challenge the rules.  He says that no matter how permanent the rules seem, they are always being eroded. He tells the undergraduates that in order to understand the world they must identify the rules, who has made them, and who is challenging them.  They must also identify the alternative rules. In his book Boundaries and Belonging (2008, 14), he puts forth the idea that “collective lawbreaking” should not just be considered as deviance, but rather, as a group offering an alternative law.  (A related discussion would be that of “legal pluralism” that is well articulated by Merry, 1988.)

But in this weird, contradictory world of societal groups’ and individuals’ relationships to the state that are under constant negotiation and change, the state is a jealous lover.  It does not tolerate any rivals to our allegiance—although some, such as Elias, would say that there are spaces in which we manage ourselves for the state. This means that the state will use its considerable violence to break the back of any entity or force that it perceives as a threat to its dominance and to its primacy.  While we imagine (and know) that strong states such as China consistently exercise its coercive power to decimate any perceived challenge to its authority, all states do this.  In the US, for example, the state sent an army to break the power of the Mormon Church in 1857.  But, there are smaller examples every day, often involving small and contained communities. The law is often a tool in this endeavor, although it can also be a tool to the challengers who are attempting to change state policy or challenge the state’s authority.

Robert Cover begins his famous article “Violence and the Word” with:

“Legal interpretation takes place in a field of pain and death.  This is true in several senses.  Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life.  Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur.  When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence.  Neither legal interpretation nor the violence it occasions may be properly understood apart from one another.”

Cover does not mean to say that there is no merit or need for legal interpretation—and he focuses on judges—but his point is, rather, to remind us that the law is institutionalized violence.

Based on my understanding of the state-society relationship, I would argue following many, many other scholars, that when the state perceives a significant threat to its authority it will act to break that threat, reaffirming its dominance within a socio-political space. Thus, I look at the Aaron Swartz case—and the others outlined by Biella Coleman and danah boyd—and I wonder, why has the state determined that these people are such a significant threat to the state that (nearly) the full violence of the judicial system should be brought into effect?

I think about the weight of the sentence leveraged against Aaron Swartz—13 felonies and a possible 35 years in jailin relation to his crime. Or, the weight of the charges and sentences leveraged against the people involved in the DDoS protests on behalf of WikiLeaks in 2010 under the umbrella of Anonymous—those people now facing up to 10 years in jail for making websites unavailable for a short amount of time. And, while the state has certainly used disproportionate punishment and unfair application of laws in other cases, such as drug law, it is puzzling that it has decided that these individuals are such a threat that they must be targeted and used as examples in, what I can only assume, is an effort at generalized repression. Of course, when someone is engaged in civil disobedience s/he is breaking the law and often expects that there will be consequences, but there seems to be a disproportionate response in these cases (an idea that Biella Coleman phrases more eloquently in We Are Legion) that raises a lot of questions about why the state considers them such a huge threat.

I fear that this is another aspect of the effort to make the online world more managed.  The Internet still has the cultural mystique of an imagined wild—a place where we believe the hidden is still possible, where we think we see faceless mobs challenge state authority with panache and without consequence, where we fear there is no property that is safe from being stolen and shared, and where we imagine The Hacker is able to access anything about us that s/he wants at any time. Whether this imagined and anarchic landscape is real or not, the state response seems to indicate that there is a belief that it is and that it is now time to make it subservient and regulated, enclosed and manicured.

As part of that struggle, there is also a struggle to discredit, diminish, and demonize those who are challenging the rules. In 2011, Carmen Ortiz, the US attorney managing Aaron Swartz’s case stated that, “Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars. It is equally harmful to the victim whether you sell what you have stolen or give it away.”  The framing of Aaron Swartz’s crime as stealing is largely different from the framing of it as a political actor as trespassing and inconsiderate, as some have stated it was.  However, in a press release today, Ortiz’s language had changed.  She said that:

“I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case. The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably. The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases. That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct – a sentence that we would recommend to the judge of six months in a low security setting. While at the same time, his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge. At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law.”

Please note that there is still the subtle attempt to discredit in this text—the “reasonable” prosecutors and the “unreasonable” counsel. However, I think that “the Internet’s” response to the death of Aaron Swartz has made it impossible to discredit either him or his political aims, and this is heartening.

Like others who study the Internet, I have spent a lot of time in the last days thinking about what my responsibility is as someone who agrees with some of Aaron Swartz’s political aims, as an educator, and as someone who studies technology and society. I think this is why I keep grappling with this question about why the US state has been treating those advocating for freedom of information as some sort of existential threat.  I believe it would be the best and most healthy thing for our society to have those interested in changing our current relationship with information to be treated as legitimate part of the conversation and institutional process rather than as an existential threat to the state. I’m still not sure what the path is to that end, but I can’t help but think that we are still struggling to find it.

I originally posted this on my personal blog on January 17, 2013.

You can find me on Twitter: @jlbeyer

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