Hard News by Russell Brown

48

On Freedom

There is at least one very good reason to be sceptical of the nascent Worldwide Index of Human Freedom, published last week with New Zealand in first place -- and it is that its principal publisher is the Fraser Instititute of Canada

The Fraser Institute has previously behaved as the very worst kind of libertarian think-tank: the kind that takes money from tobacco companies and oil companies and publishes disingenuous, ideologically-driven material on tobacco regulation and climate change.

Furthermore, the authors of An Index of Freedom in the World (which is one chapter in a broader report) hail respectively from the Cato Institute and the Atlas Economic Research Foundation. Their idea of "freedom" may not be yours.

Somewhat surprisingly, the Index explicitly sets its sights beyond the "economic freedom" (essentially a measure of the lighthandedness of regulation by elected governments) that usually constitutes the purview of such organisations.

Its authors do mutter some incantations about how democracy does not equate to freedom (and hence they won't factor it into their index), and their index score combines "economic" and "personal" freedoms, but they also say their paper "attempts to devise a broader measure of human liberty that also includes indicators of civil and other liberties."

I know, right? Civil liberties as a key measure of freedom! Groundbreaking stuff!

We have tried to capture the degree to which people are free to enjoy the major civil liberties—freedom of speech, religion, and association and assembly—in each country in our survey. In addition, we include indicators of crime and violence, freedom of movement, and legal discrimination against homosexuals. We also include six variables pertaining to women’s freedom that are found in various categories of the index.

I'll leave an assessment of how well they've chosen and justified their data to people more expert than me, but in intent at least, this is more than a Heritage Foundation-style economic freedom index. It probably does say things about New Zealand that should make us proud. If you'd like to feel even more smug, feel free to read Crooks and Liars' article on the subject.

One of my Facebook friends was having none of it: "Well." he wrote.  "The most-free country I know of, or have ever experienced, is America."

Unfortunately, no one seems able to make that case empirically -- and morally, in the week that Aaron Swartz died, it seems simply absurd.

Swartz was a brilliant American individual: at the age of 14 he was part of the working group that created the original RSS spec. Later he was a co-founder of Reddit and of the online group Demand Progress and worked with Avaaz to defeat the overweening Stop Online Piracy Act (SOPA). The reach of his advocacy was prodigious: protests about SOPA are pretty much the only political speech my older son has ever uttered.

But the last year and a half of Swartz's life was dominated by federal felony charges resulting from his accessing the JSTOR archive of academic articles.  Professor Lawrence Lessig's Prosecutor as bully explains the persecution that Swartz suffered, and the absurdity of the 35-year prison sentence he faced.

Early on, and to its great credit, JSTOR figured “appropriate” out: They declined to pursue their own action against Aaron, and they asked the government to drop its. MIT, to its great shame, was not as clear, and so the prosecutor had the excuse he needed to continue his war against the “criminal” who we who loved him knew as Aaron.

Here is where we need a better sense of justice, and shame. For the outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor’s behavior. From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash ofACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed.

Alex Stamos, who would have been the expert witness in Swartz' trial, put the case against the federal prosecution even more strongly:

In short, Aaron Swartz was not the super hacker breathlessly described in the Government’s indictment and forensic reports, and his actions did not pose a real danger to JSTOR, MIT or the public. He was an intelligent young man who found a loophole that would allow him to download a lot of documents quickly. This loophole was created intentionally by MIT and JSTOR, and was codified contractually in the piles of paperwork turned over during discovery.

As danah boyd notes, Swartz could be fractious: "a cranky bastard and a manic savant". He suffered from depression and no one seems in any doubt that that was a factor in his suicide. But everyone, family, friends, professional coleagues, seems equally sure that this insane prosecution -- based on an interpretation of the law that would ensnare literally millions of Americans if the authorities so chose -- was also a cause of his death. It's also very hard to see it as other than retribution for his political activism.

A country that permits and commits this kind of of retribution against political activists doesn't get to top any league tables for freedom. (Some of you will regard, with some justification, the original charges against the Urewera activists here as a similar case, but I think there are some significant differences both in the nature of the alleged offences and, more profoundly, in the handling of prosecutorial decisions.)

The excesses of prosecutorial discretion have, of course, severely distorted other areas of American public life in recent decades, especially in combination with the judicial gimmickry of mandatory minimum sentencing.

Which is why, in free New Zealand, we ought to be very wary of pronouncements like that made last week by Justice minister Judith Collins, who told Fairfax that there was no need to revisit drug laws that are steering hordes of the wrong people through the courts and even into jail, because:

"The Government relies on enforcement agencies such as police to make appropriate decisions on how to charge someone for their offending, and the judiciary to make appropriate sentencing decisions based on the circumstances of individual cases."

 The fact is that prosecutorial discretion -- which in the case of drugs often means the inconsistent and arbitrary application of the law -- is the thing that keeps prohibition viable. If the law was fully and equally applied, it would not be viable. It's selective prosecution that allows politicians like Collins to insist there is no problem.

We used to be like this with prostitution, which was tacitly tolerated except when police and prosecutors decided it wasn't. That had many perverse effects. We finally bit the bullet and came up with a law that actually meant what it said. I don't expect that we'll do that same with drugs in the near future -- even though the perverse effects of the law stare us in the face -- but we should resist it when politicians serve their own interests by informing us there is not even a debate to be had, if for no other reason than to maintain our good reputation.

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