Over on The Volokh Conspiracy
, (a popular blog discussing controversial legal issues), Professor Orin Kerr
of the George Washington University School of Law, has been discussing and defending his analysis of various legal issues arising in the case of Internet activist Aaron Swartz.
In one of these discussions
, where Professor Kerr was examining the issue of whether Swartz violated the Federal Computer Fraud and Abuse Act (CFAA) by engaging in "unauthorized access," there came this colloquy:
Barry Kort: Trying to overlay the criminal law on the Internet has been an exercise in misadventure, to put it politely.
Orin Kerr: But there's a law on the books, and the only issue in this post is what it means.
BK: It means that whoever made the law wasn't working from a reliable system model of its consequences.
OK: Barry, if you want to talk about laws that were not based on a reliable system model of its consequences, I suggest you start with 1 U.S.C. 1 and go from there.
BK: Actually, Orin, I start with the fundamental axiom upon which the entire system of law is founded -- namely the axiomatic assumption that the Crime and Punishment Model is functionally capable of crafting a peaceable and orderly society. That axiom has been studied by criminologists, sociologists, economists, psychologists, mathematicians, humanists, theologians, and systems scientists.
OK: Barry, that's not the fundamental axiom upon which the entire system of law is founded. The fundamental axiom upon which the entire system of law is founded is that human beings are imperfect, and when we get together to govern ourselves we invariably do an imperfect job, muddling through as best we can and satisfying no idealist but hopefully doing better than the realistic alternatives that come to mind. That's the difference between law and engineering that is so hard for engineers to understand. Engineering is about the perfection of math and science, and the faith that rigor produces objective truth about the world. Law, by contrast, is a profoundly human enterprise. It can never be more perfect than people themselves.
BK: That's why I took a look at the Kohlberg-Gilligan Model of Human Imperfection and elected to operate at the 5th rung of Kohlberg's model, and to fold in Gilligan's Ethics of Care as an orthogonal axis. Orin, do you see how my belief, that 21st Century humans were capable of functioning at Kohlberg Level 5, tempered with a touch of empathy, is just as much a religion as Hammurabi's belief, expressed some 3760 years ago, that humans of his age were capable of operating at Kohlberg Level 4? Orin, if it truly is unrealistic for members of our species -- including the best and brightest members of academia -- to rise to Kohlberg Level 5, then I am afraid to say our species is doomed. Can you see why, Orin?
OK: Barry, I have no idea what you're talking about.
The good professor did not respond further at that point in the discussion thread.
In another colloquy, we again came to the same controversial question on the applicable law. My position was that MIT's policies amounted to a collegial social contract expressed in the language of ethics, calling upon members of the MIT community to use the campus network in a "responsible, professional, and ethical" manner, which is why it was so problematic to interpret it as a hard and fast rule.
Orin Kerr: Barry, it seems to me that your answer is that the conduct was authorized because you feel like universities including MIT work on informal social contracts, and you seem to think that this fell within the informal social contract that you sense applies at MIT. But that doesn't answer the question: How does one know if a particular act is authorized by a sensed social contract versus prohibited by the explicit policies, acts, and shared social norms that usually indicate authorization or its absence? Is that something that you just sort of feel out?
Barry Kort: Often one doesn't know in advance whether other members of an academic community will take exception to some activity and consider it a breach of expectations with respect to the social contract. That's why the social contracts I helped craft all have built-in conflict resolution protocols. Social contract cultures rely in part on ethical reasoning. We appreciate that ethical reasoning is part of the process of functioning within an academic or research culture. As you know, Larry Lessig is the Director of Harvard's Safra Center for Ethics. Having worked with faculty members who teach ethics, I appreciate how difficult it is for even highly intelligent, conscientious, and fair-minded people to devise ethical best practices.
OK: Barry, I'm confused. Are you arguing that Swartz's conduct was "authorized" for purposes of the law? Or are you saying that you think that the best way way to deal with Swartz's conduct would have been to engage in a conflict resolution protocol, even if technically it was an unauthorized access as a matter of law?
BK: Far be it from me to apprehend the purposes of the law, Orin. I am saying that the ethical best practices for MIT and JSTOR would have been to do what JSTOR actually did, which was to resolve the breach as amicably as possible, learn from the experience, and go forward from there.
OK: So you are not arguing that what Swartz did was legal: You are not contesting that the conduct was prohibited by federal criminal law. I think I understand, and I appreciate the clarification. I just wanted to be sure I understood your argument, which I had misinterpreted to be a claim that Swartz had not violated the law.
BK: I have no idea if he violated the law. I have heard your arguments that he did violate the law, and I have heard the arguments of Alex Stamos that he did not violate the law, and I have not heard a decision by a judge or a jury as to their verdict. But it occurs to me that the machinery of the law has not done anyone a beneficial service here.
What's interesting to me in the above excerpts is that the "Purposes of the Law" seem to have gotten lost in the process of arguing over the minutiae of what the terms and phrases in the codified statutes even mean. It reminds me of the Talmud and the Mishneh in which the rabbinic scholars endlessly debated and discussed the meaning of the divine word of the Torah.
At least in the case of the Torah, the purpose of the debate was to infer ethical or moral best practices for living one's life. In the case of the comparable debate about the statutory law, it appears that the purpose is to justify labeling this or that imperfect human being as a felon who needs to be punished for any discernible imperfections.
What's even worse, there seems to be some serious confusion over the axiomatic foundation upon which the System of Law is built.