Lessig Blog Archives

Ed_in_LA has a nice comment to my piece in The Beast about the original meaning of “corruption.” The basic thrust of his point is that originalism is about how judges read the Framers’ texts. And the word “corruption” (like “democracy,” or “separation of powers,” or “federalism”) doesn’t appear in any founding text (except “corruption of blood”). 

I don’t believe this fair and true point changes the point I am making. 

The fundamental question for a judge is always this: What sanctions the Court in its overturning an act of Congress? The easy and obvious reply in these cases is the First Amendment — as interpreted by the Court. According to that interpretation, the regulation of “corruption” escapes the ordinary restriction against speech regulation. So the important question is what “corruption” means.

But obviously, the term “corruption” can mean many things. See, for example, this brilliant paper by Deborah Hellman at the University of Virginia mapping a range of possible conceptions of “corruption,” and the very different (and sometimes contradictory) implications that range would have for the scope of legitimate campaign finance regulations.

So a Court must pick among that range. And the obvious question then is “on what basis?” Should it be the personal political preferences of the judges that determine which conception of “corruption” should count? The political preferences of whatever justice drafted the corruption related bit of Buckley v. Valeo (and it’s not clear from this brilliant essay by Rick Hasen who that was). Or should it be the conception of “corruption” the Framers would have embraced? 

I can’t see how a principled originalist picks any conception other than the Framers’ — again, given the radically different implications each different conception would entail. No doubt the choice is artificial — in the sense that the First Amendment was not originally intended to (or at least applied to) limit Congress through judicial restrictions. But once we get over that innovation, the consistent originalist is committed, in my view, to interpreting the contours of any exception according to the best interpretation of how they would have understood that exception. (Properly translated, of course. But that qualification doesn’t apply here.) 

One possible response is precedent: Since Buckley, the Court has pointed to “corruption” as “quid pro quo” corruption (sort of, and except for Austin). But even that doesn’t save the narrow conception because the Court has never addressed the question whether “quid pro quo corruption is the only conception of corruption” relevant to First Amendment analysis. Why would it? The relevant question in each case before was simply whether “corruption” (ordinarily quid pro quo) would reach the behavior regulated in that particular case.

Reading “corruption” as the Framers would have would not force the Court to reverse any decision it has already made. It would not, for example, undermine Citizens United. So again, the consistent originalist is not constrained to ignore the Framers view. Which is again why s/he should follow them — if consistency is the charge. 

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There will be live streaming of Constitutional Accountability Center event Thursday, September 26, at 12pm, discussing McCutcheon v. FEC & the first Tumblr in the Supreme Court. 

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So a fair and frequent question I get from my friends when I describe my optimistic view about the conservative Supreme Court justices is: “How can you be so naive?”

It’s a fair question, as this faith has led me to many errors. I had faith in Bush v. Gore. And in Eldred v. Reno. And in the Obamacare case (the result was consistent if not the reasoning). And in Golan v. Holder.

In each case, I was wrong. Some say because I read the “originalism” wrongly. Some say because I have too much faith in the “originalists.”

But regardless, here I go again: As I have written, in my view, a committed originalist would find it difficult to interpret the term “corruption” to refer to “quid pro quo” corruption alone. 

So we’ll see. 

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Speaking at HLS Thursday, 26 September, David Stockman is a former congressman, former budget director (for Reagan), and a current author (The Great Deformation). The book is a powerful, angry book, which has angered many on the left and right. But there is an important truth woven throughout, and though the book is not architected to please anyone, we’ll be working hard at the lecture to surface this important truth. #Rootstrikers of all kinds welcome. 

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On Thursday, Senator Elizabeth Warren and I will participate in an event hosted by the Constitutional Accountability Center (livestream here) to discuss a brief I submitted in a corruption (aka “campaign finance”) case that the Supreme Court will hear on October 8: McCutcheon v. F.E.C.

At the center of the brief is a Tumblr — the first time a Tumblr has been used in an argument in a Supreme Court brief.

The basic argument of the brief is that the Framers of the Constitution used the word “corruption” in a different, more inclusive way, than we do today. The Tumblr captures 325 such uses collected from the framing context, and tags to help demonstrate this more inclusive meaning. 

The upshot of the collection is that the Framers meant more by “corruption” than simple “quid pro quo” (this for that) corruption. In particular, their main focus (or most common usage) was institutional corruption. And one prominent example of the institutional corruption they were concerned about was an institution developing an improper dependence. Like — to pick just one totally random example — a Congress developing a dependence upon its funders, rather than the dependence the framers intended — “on the People alone.”

This research should be significant to the “originalists” on the Supreme Court (the 5 conservatives) at least. They say they interpret the Constitution by looking to its original meaning. If they look to the original meaning of “corruption,” they would see that they have no legitimate sanction for restricting the meaning of “corruption” to “quid pro quo” corruption alone (as some recent cases suggest at least some believe). And if they did not restrict it to “quid pro quo” corruption alone, then the regulation in McCutcheon, which limits aggregate contributions, could be justified: it’s purpose is to limit dependence upon large donors; that purpose is a perfect valid “anti-corruption” purpose, at least in the view of the Framers. 

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I bought a product at CVS online. They emailed me a request that I review the product on their site. I did. I didn’t like the product, but I complied with every single requirement for comments. Today I got a polite email telling me they had rejected my comment. When I clicked on the link to “contact us,” 404’d.

So when you see a certain glow on the CVS site, remember, it is carefully edited. 

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“

It happens, sometimes,
that things are too much.

Stacks overflow.
Trusses break.

I get that.

What I don’t get is:
how one barrels through.
Where does that strength come from?
How is it fed?

And if it doesn’t appear on command,
how does one hold on, waiting?

Everything is collapsing.
By definition, that means:
nothing remains to be held.

”

– Anon.
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One of the most frustrating aspects of this report is the role of “neutrality” — especially in light of the criticism MIT makes of the prosecutors reported in the post below.

“Neutrality” is one of those empty words that somehow has achieved sacred and context-free acceptance — like “transparency,” but don’t get me started on that again. But there are obviously plenty of contexts in which to be “neutral” is simply to be wrong. 

For example, this context: The point the report makes in criticizing the prosecutors is that they were at a minimum negligent in not recognizing that under MIT’s open access policies, Aaron’s access was likely not “unauthorized.” As the report states (at 139): 

As far as the Review Panel could determine, MIT was never asked by either the prosecution or the defense whether Aaron Swartz’s access to the MIT network was authorized or unauthorized—nor did MIT ask this of itself. Given that (1) MIT was the alleged victim of counts 9 and 12, (2) the MIT access policy, its Rules of Use, and its own interpretation of those Rules of Use (including the significance or “materiality” of any violation of those terms) were at the heart of the government’s CFAA allegations in counts in both indictments, and (3) this policy and these rules were written, interpreted, and applied by MIT for MIT’s own mission and goals—not those of the Government— the Review Panel wonders why. (p139)

But that criticism goes both ways — if indeed MIT recognized this, and didn’t explicitly say either privately or publicly that Aaron was likely not guilty of the crime charged, then that failure to speak can’t be defended by the concept of “neutrality.” 

Indeed, the criticism of MIT could be stronger: At most, the prosecutor was negligent. But MIT was more than negligent: The issue was explicitly flagged for it, by a senior member of the MIT administration. As the report indicates, Joi Ito, in the summer of 2011, explicitly raised the point: 

One particularly pertinent moment was in June 2011 when the Media Lab Director [Joi Ito] informed the administration that Aaron Swartz was charged with “unauthorized access” and suggested that MIT would be in a position to cast doubt on this charge if so desired (see section III.B.1). …

A charge of “accessing [the MIT network] without authorization or in excess of authorized access” deeply involves MIT, since MIT provides the authorization and sets the rules of authorization. Thus MIT set rules that played a key role in determining what constituted a felony in the Aaron Swartz case. In the 1994 prosecution of David LaMacchia, MIT communicated to the USAO that, as a student, LaMacchia was authorized to accessthe computer as he had done. There was no reflection on the LaMacchia case during Swartz’s prosecution: institutional memory had been lost. Part V, Question 1, in considering the need for greater expertise at MIT relating to computer crime, also asks about ways to help preserve institutional memory.

MIT has justified intervening in the LaMacchia case and defended not intervening in the Swartz case on the basis that LaMacchia was a student and Aaron was not.

But that defense is absurd: If MIT knows that a human is being prosecuted on the basis of a false interpretation of MIT’s rules, what possible difference does it make whether that human is a student or not? If a MIT official sees someone bleeding on the Mass Ave, do they decide whether to call 911 only after checking for a student card? MIT knew something here that at a minimum could have cut short a prosecution, and which, it turns out, could also have saved someone’s life.

“Neutrality” does not justify failing to pick up the phone, and telling the prosecutor, “hey, in fact, his access was authorized.” Maybe it wouldn’t have mattered. Maybe the prosecutor would have stayed the course. But then that would have been (yet another) failure of the prosecution, not MIT’s.

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The MIT report (PDF) on the Aaron Swartz case is out. I am going to take some time to study it and understand it more fully. I’m away with my family and won’t be commenting on the report now, beyond the following: 

The report says that MIT never told the prosecutor that Aaron’s access was “unauthorized.” They indicated that his machine was not supposed to be plugged into the ethernet jack it was plugged into, but there is no law against abusing an ethernet jack. The law regulates authorized access to a network. The whole predicate to the government’s case was that Aaron’s access to the network was “unauthorized,” yet apparently in the many many months during which the government was prosecuting, they were too busy to determine whether indeed, access to the network was “authorized.” 

Here’s the section from the report (§11b): 

The superseding indictment abandoned the theory of “exceeding authorized access,” and counts 9 and 12 (applicable to MIT) relied instead on “unauthorized access.” The allegations in the indictment focus on numerous means whereby Aaron Swartz obtained access to the computer through unauthorized means, such as repeatedly taking steps to change his computer’s apparent identities and to conceal his computer’s real identity. Clearly, these are means whereby Aaron Swartz obtained access to the computer in order to engage in unauthorized conduct, that is, to do something that MIT did not want him to do through its network: engage in massive downloading of JSTOR articles.

The question posed by this charge in the indictment is, however, different: it is whether— given MIT’s guest policy—Aaron Swartz accessed the MIT network without authorization. Put differently, it is whether Aaron Swartz was authorized to access the network, regardless of whether he used improper means to do so. To illustrate this distinction, the Review Panel has asked itself the following question: had Swartz, intending to engage in the conduct for which he was indicted, walked into an MIT library, shown his personal identification to the desk, and asked to log on to the MIT system as a guest—would he then have been given access? If the answer to this question is “yes,” then it seems possible that Aaron Swartz’s access to the MIT network was authorized, notwithstanding his inappropriate means of implementing access, or of then abusing such access (which may themselves have been violations of different criminal or civil prohibitions). 

The Cambridge Detective involved in the prosecution explained to the Review panel that he repeatedly asked, in various ways, whether the laptop was authorized to be in closet; whether the cable from the laptop to the network switch was authorized to be there; whether the manner of downloading the articles was authorized; and, overall, whether the method of accessing and using MIT’s network in this manner was authorized. He was told “no,” and told that MIT had tried to prevent the downloading by disconnecting the computer of the (then) unknown suspect. 

The Review Panel questioned five employees of MIT’s IS&T who were involved in the identification and monitoring of Aaron Swartz’s laptop found in the network closet of Building 16 and who provided information to the prosecution during its preparation of the criminal case. According to them, and also according to OGC and MIT’s outside counsel, at no time, either before or after the arrest of Aaron Swartz, did anyone from the prosecution inquire as to whether Aaron Swartz had authorized access to the MIT network. Given MIT’s open guest policy, it might be argued that Aaron Swartz accessed the MIT network with authorization. Put differently, there is apparently an issue as to whether Aaron Swartz was authorized to access the network, regardless of the considerations that (1) he might have used improper means to implement such access; and (2) once he was on the network, he might have used such access for an improper purpose. 

The relevance of this distinction can be seen in the Department of Justice’s computer crime manual, Prosecuting Computer Crime (2nd ed.), published by the Office of Legal Education, Executive Office for United States Attorneys: “A more difficult question is whether a person with some authorization to access a computer can ever act “without authorization” with respect to that computer. The case law on this issue is muddy, but, as discussed below, there is growing consensus that such “insiders” cannot act “without authorization” unless and until their authorization to access the computer is rescinded.”

As far as the Review Panel could determine, MIT was never asked by either the prosecution or the defense whether Aaron Swartz’s access to the MIT network was authorized or unauthorized—nor did MIT ask this of itself. Given that (1) MIT was the alleged victim of counts 9 and 12, (2) the MIT access policy, its Rules of Use, and its own interpretation of those Rules of Use (including the significance or “materiality” of any violation of those terms) were at the heart of the government’s CFAA allegations in counts in both indictments, and (3) this policy and these rules were written, interpreted, and applied by MIT for MIT’s own mission and goals—not those of the Government— the Review Panel wonders why. (p137-39)

If indeed Aaron’s access was not “unauthorized” — as Aaron’s team said from the start, and now MIT seems to acknowledge — then the tragedy of this prosecution has only increased. 

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Inspired by the work of Zephyr Teachout and Zach Brugman, and aided by the work of two research assistants, Dennis Courtney and Zach D’Amico, the lawyers at the Constitutional Accountability Center and I have submitted this amicus brief to the Supreme Court for the upcoming McCutcheon v. F.E.C.. 

The basic question the brief addresses is this: What would the framers of the Constitution have understood the word “corruption” to mean? This question is important since at least 5 justices on the Supreme Court are “originalists,” and the Court has held that the meaning of “corruption” determines how far Congress may go to address the issue of “campaign finance reform.” 

To answer that question, Dennis Courtney and Zach D’Amico gathered every use of the term “corruption” from documents at the founding. They then each coded the uses. The basic questions they asked were first whether the term “corruption” was being predicated of an institution, or an individual; second, whether the use was discussing “quid pro quo” corruption; and third, whether it described “improper dependence” as a kind of corruption.

The results were striking. A significant majority of the times the Framers use the term “corruption,” corruption is predicated of an entity, not an individual (57%). Every instance of “quid pro quo” corruption is describing individual corruption, not entity corruption. And for the significant number of cases in which the Framers are discussing “improper dependence” as a kind of corruption, they are describing entity corruption (67%) not individual corruption (33%).

These numbers make it hard to believe that the Framers of our Constitution would have used the term “corruption” to refer to “quid pro quo” corruption alone. Or put more sharply, these number suggest that only a non-originalist could support the idea that “corruption” refers to “quid pro quo” corruption alone. 

You can see the original research at the tumblr blog, oCorruption.tumblr.com. 

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