CONCLUSION
“Among the 435 members of the House there are one physicist, one chemist, one microbiologist, six engineers...... Dinosaurs cavorting with humans, climate scientists cooking up global warming hoax, the health establishment using vaccines to bring about socialism – it’s hard to imagine mainstream leaders in other advanced economies not laughing at such claims” –John Allen Paulos
The dream that is America is one that says a society can bring all people, of all nations, together. It is the idea that a government exists to serve its people, not the other way around. Our founding fathers had the ability to envision a society never before seen on earth, a self-correcting republic founded on principles of democracy and justice. A Constitution constructed to evolve and change as the society itself advances. This is our real ace in the hole as we approach the threshold of massive technological change.
Ron Bailey, the science editor for Reason magazine, has written, “When people of goodwill deeply disagree on moral issues that don’t involve the prevention of force or fraud, it is a fraught exercise to submit their disagreement to a panel of political appointees or a democratic vote. That way leads to intolerance, repression, and social conflict.”
I pointed out earlier that all judicial decisions, regardless of how they are legally reasoned and/or justified, involve an exercise in raw power. Equally, when a legislature passes laws, and when the executive branch enforces those laws, this involves an exercise in raw power. You’d be within your rights to disagree, but even so, if you don’t pay your taxes a US Marshall with a loaded gun will come to your home and drag you to jail. Our prisons are full of people who violated laws made and enforced by the government. The guards who sit on prison walls have the authority to shoot to kill in the event of an attempted escape. Government is always an exercise in raw power. For that reason, it is imperative that government power be constrained by checks and balances for the protection of each citizen. This is the genius of our founding fathers.
The political process is the way social groups resolve conflict within a society. Some societies have elections to resolve their disputes over how to govern. Other societies have soldiers shoot anyone who voices dissent. In America, it is the electoral process that gives each organ of government the political authority to act on our behalf. We elect a new government every four years without violence. For an example of what happens when this process breaks down, we need look no further than the Civil War, with its 500,000 dead.
The Civil War was an example of an economically motivated revolt. In our own time, the system of government we so dearly treasure may very well be challenged by a looming deflationary period in which many able-bodied workers will fail to find jobs in the private sector economy.
Mr. Bailey has pointed out the problem when government strays from its original mandate to “keep the peace” and moves into outright social engineering and moralizing. We’re on a slippery slope indeed, for now someone’s religious ideas will carry the solemnity of state law. Someone’s moral code will now be implemented with the use of deadly force, if it’s needed, to obtain compliance. The banning of embryonic stem cell research is one such incident. The sick and dying were denied access to potential miracle cures, simply because they conflicted with the sitting president’s personal sense of morality. The rest of the industrialized world went full speed ahead on embryonic stem cell research, while the US watched its technological lead erode over time.
There is a contradiction between the speed with which technology evolves and that at which culture and social norms evolve. Technology is moving one million times faster than social understanding. That’s why embryonic stem cell research was attacked by religious fundamentalists. These are the same people that attacked in vitro fertilization as being sinful in the 1960s. There were lengthy debates as to whether or not these “test-tube children” would actually have souls. Sitting here in the comfort of the 21st century, those old debates appear outright laughable. But in the 1960s, these well-meaning people were deadly serious. Two generations later they are merely an asterisk in a historical debate long since forgotten. I predict in another 60 years the debate over embryonic stem cells will look much like that over in vitro fertilization. Much ado about nothing.
I propose a name for this phenomenon. I propose we call the inability of law, societal norms, and economic systems to keep up with the exponential growth of technology (another form of “clocks” disparity) the “Techno-legal Differential Factor.” We have previously touched on a number of situations in which government failed to anticipate legal problems created by the Internet and social networks: the loss of privacy, virtual property rights, nations unable to enforce their sovereign laws against Internet encroachment, to name a few. We’ve just scratched the surface of these issues.
When the Internet site Napster began file-sharing as a way of exchanging music for free in direct violation of copyright laws, it spawned a huge legal fight, where the technology’s inventor declaring a new paradigm in which antiquated laws cannot stop young people from swapping data. The federal judge ruled against Napster and they were eventually closed down. A new way to steal is still theft. The damage had already done, however. Soon, iTunes appeared, promising an entirely new way to obtain music. Downloads did away with more than CD’s. The traditional music companies such as Sony have suffered huge losses as artists are now able to market directly to the public. And we’ve already discussed the effect this has had on the music retail industry.
Let’s have one last roundtable.
CLAY: A more recent and tragic example of this occurred on January 11, 2013 when Aaron Swartz committed suicide. Swartz was a brilliant software engineer – a cutting edge computer genius. At age 15, Aaron coauthored RSS (Rich Site Summary), an internet protocol that allows a user to see frequently-updated material that appears on the internet. Much of what we read on the internet today comes to us in no small part thanks to Aaron’s genius. He was also a promoter of open access of information. He believed passionately in the “Digital Commons,” where all digital content would be free for everyone. He wanted to make all information available to the public. JSTOR is a digital, proprietary academic library. Aaron disagreed with the concept of charging for these articles, since the research had been done by academic professors and grad students who were on salary at institutions, many of them supported by tax dollars. He believed they should be available at no cost to the public.
Aaron accessed JSTOR through the MIT system and downloaded a reported 4 million articles onto free spaces of the internet, free for everyone. For this act of Robin Hood-like courage, he was charged with a number of federal crimes (wire fraud, computer fraud) that carried a total criminal exposure of up to 35 years in federal prison. At the age of 24, Aaron was looking at 30 years in a federal penitentiary. I’ve watched this kind of pressure break the strongest of men. A young kid suffering from depression never had a chance. One day in January, with the feds on his tail, he hanged himself.
RANDY: While Aaron carried out his civil disobedience by accessing MIT computer systems and releasing all of these documents to the public, he did not have a right to do so. If you engage in civil disobedience, you should be willing to accept the consequences. He did not have the right to unilaterally decide to release the work of others without first contacting the holders of rights to it. There are more legal problems involved than simply empathizing with this young man’s emotional torment. If you wish to use this as an example I think you must also explain the other side of this coin. Aaron no more has the right to release this information than I do to distribute copyrighted books or music to anyone who wishes to read or listen to them. What about the hard-working artists who produce the work I want to distribute? Everyone’s got to eat. Professors have the same right to decide whether they wish to release their research for free to the public. Further, in the last few years, universities have been selling the research performed by their employees to offset cuts by state governments, which in turns keeps them afloat and their employees in jobs. This is not a simple black-or-white matter.
I understand Aaron wanted to make information available to all in the service of the greater good, but, like all ideas of utopian origin, there is a dark side to this. The three of us have discussed the coming robotic revolution and the fact that the social contract between the “owners” and the “workers” will soon break down. There has to be something to take the place of manufacturing when 3-D printing becomes a household utensil. If everything is given away for free how will anyone purchase goods or feed his family? Those who have new ideas will be the masters of the 21st century. We’ve seen what Napster has wrought upon the music industry. Just this week, Virgin Records declared bankruptcy in Europe, promising the loss of countless jobs. When everything is free, how does one support a family? If everything has no value, why produce, other than for the sheer joy of the exercise?
CLAY: Like Randy, I have worn different hats in my career. I have played offense and defense. US Attorney Carmen M. Ortiz was quoted as saying “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.” As a former prosecutor I understand why she felt it necessary to act even when both MIT and JSTOR reported they did not want Aaron prosecuted. Whether or how to proceed in such a situation is a decision that clearly rests with an Attorney General’s Office.
The defense and Aaron’s parents have accused the US Attorney’s Office of “intimidation and prosecutorial overreach.” As a defense attorney I understand their position as well. A young idealist committed an act of conscience for the betterment of mankind, and the government treated him like an al Qaeda terrorist. Ms. Ortiz also reported, after a loud public condemnation of her and her office, that they had offered Aaron a plea bargain whereby he would only serve six months and could request probation from the judge.
Prosecutors are no different than any other lawyers. They want to win, period. They overcharged Aaron and left him with no choice but to do what he was told. They did not want a long, drawn-out trial that would give him a national forum to paint himself as a freedom fighter speaking truth to power. They didn’t want to open the risk of jury nullification, where a jury renders an acquittal not because the prosecutor’s case has been inadequate but because the jurors themselves believe the law in question to be undeserving of enforcement.
There’s an old Texas saying, “It’s not against the law to kill a son of a bitch.” If a jury thinks he had it coming they will be inclined to vote not guilty on general principal. For that reason, if I am ever shot dead and my wife is the suspect, I don’t want her prosecuted. It’s bad enough I’ve been murdered without some defense attorney destroying my reputation to convince a jury I “had it coming.”
Nothing scares a prosecutor worse than jury nullification. It rarely happens – but when it does, it makes the prosecutor look like a complete fool. He’s spent tax dollars and taken up court time demanding the jury find the defendant guilty, only to be informed that no one cares whether the accusations are factually accurate or not. From the defense perspective, of course, it’s the ultimate win. The state will claim the jurors were derelict in an important civic duty, while the defense will crow that they did the right thing and joined a proud heritage of average citizens protecting each other from government overreach. That’s why a federal prosecutor would overcharge to such a great extent.
Aaron could only have his day in court if he’d been willing to risk spending almost his entire adult life in prison. Given that exposure, his defense lawyer would have to recommend he take the deal. No competent defense lawyer can counsel his client to refuse a six month misdemeanor with a possibility of probation at the risk of 35 years in prison. The prosecution, of course, knew this. When Ms. Ortiz claims she never intended for him to go to prison you have to ask: why was he facing 35 years? The answer is patently obvious.
Ortiz was making a strategic move to force a plea. They stripped him of any chance not to plead guilty. As a prosecutor in the 80’s, I did this myself. It was a tactic I reserved for cases involving extreme violence or the victimization of a child. I pursued rapists, murderers, and child abusers with a vengeance. To apply this tactic to a promising young genius acting on his idealism for the benefit of mankind is obscene. Everyone agreed on the facts. Randy, you’re right: these problems don’t give themselves over to an easy right-or-wrong analysis. They’re complex and murky. There’s no black and white here.
RANDY: But let’s bring economics back into the frame. The person who has a new way of producing goods must have some way of protecting his idea, as well as the time to bring it to market. If someone else can simply steal his idea to make cheaper goods without compensating him for his time and his effort, why would he even want to participate legitimately in the market? That is the reasoning behind patent and copyright law. This allows the producer of an idea to be compensated, and it is designed to encourage others to create new products, ideas, and procedures that eventually will be the driving force for new economies. Simply wanting the world to be a better place does not necessarily give you the right to ignore this.
You discussed the raw power of the United States government in deciding to prosecute, to charge, and punish Aaron. But Aaron’s use of his intellectual ability was also an exercise in power. He hacked into the MIT computer system, used his knowledge to ferret out the various articles, and then reproduced those articles across the Internet. Both the United States government and Aaron exercised serious power in this matter. On one side is the raw power of government and the legal system, and on the other is the raw power of intellect and knowledge. No surprise that they clashed. Two wrongs rarely make a right, but in this case, two wrongs created the greater wrong of plunging a fragile mind with great potential into a horrible situation and now society, the world, and, yes, even the United States government will probably be lesser for this loss.
CLAY: Some would see this as the classic irresistible force paradox. What happens when an irresistible force (Aaron) meets with an immovable object (the US Government)? I would describe it as more in line with Newton’s Laws of Motion. For every action there is an equal and opposite reaction. The final results are far from clear. What if Aaron was right? What if we are in fact evolving to a new paradigm where all information will be free? No one can answer this question definitively right now. Looking at trends, we see everything involving information moving towards zero (cost of computing, cost of communication by phone, internet, satellite, etc.). For now, we’re relegated to the sidelines, waiting to see how this plays out between governments and hackers. The US Attorney’s Office was linear; Aaron was exponential. The US Attorney is a calendar turner; Aaron was an atomic clock.
Let’s revisit stare decisis, the legal concept of precedent that was mentioned in Chapter One. We are now living in an exponential world that is still governed by a linear legal system that moves like a glacier. Courts are required by law to always follow precedent when rendering decisions. For questions of first impression, they must look to similar problems from the past and fashion new remedies as close as possible to previous ones. The whole idea is to prevent jarring, radical change. It’s slow by design. Predictability of result is everything in our legal system. Our economic system is put in motion by the enforcement of laws. We need to reinvent government in such a way that it is moves quickly, without surrendering the protection afforded the individual. This is much easier said than done.
We live in a democracy, so individual citizens can subscribe to any belief system they want, no matter how suspect or irrational. But we need to draw the line when believers in irrational systems try to make decisions concerning government policy and education. At a bare minimum, common sense tells us to have input into our educational system, you should have an education yourself. Politicians courting the votes of Evangelicals take great delight in fighting these ridiculous culture wars in our schools while hiding under the banner of “family values.” It has been my observation that the ones who scream the loudest about family values usually lead the lives that are farthest afield from those values. How many so-called family values politicians got caught in sex scandals last year alone? The hate radio guys were in rare form when they said democrats are not judged as harshly because they have no values for society to judge them against. Huh? Are you serious? Who even listens to this nonsense? Apparently, many people – at least if our elections are any indication of what is going on.
We are constantly told our children’s education is profoundly important because they will be the scientists and leaders of the future. Not only is this true, it’s the very key to our survival. Unfortunately, people with very primitive ideas often demand a say in what will and won’t be taught in our schools. The Chinese, Russians, and Indians are not constrained by this nonsense. They are teaching hard science with no superstitious restraints. Our leadership in the world of the future is not guaranteed. China is aware of what’s at stake. They push science without letting religious fanaticism get in the way. We ignore this warning at our peril. Manufacturing left the United States because of cheap labor in Asia. Robotic labor and 3-D printing are about to offer the United States a manufacturing renaissance. Once again, new technology to the rescue. It is the entrepreneurs and the visionaries who will ultimately get us out of this mess. The siren’s song of politicians who extol the virtues of the past is a distraction. You cannot feed nine billion people with family farms. You cannot continue to burn hydrocarbons to power developing nations into their aspirations of a middle-class lifestyle. It’s time to stop the blame game and actually pursue solutions to our problems. Rather than spending billions of dollars fighting over abortion and gay marriage, we need to produce more engineers and molecular biologists. Carl Sagan touched on this theme many times. "One trend that bothers me is the glorification of stupidity, that the media is reassuring people it's alright not to know anything. That to me is far more dangerous than a little pornography on the Internet."