Feb 5, 2013 · 7 minutes

In the penultimate speech of the evening at last night's memorial for Aaron Swartz in Washington DC, Berin Szoka, the president of the group TechFreedom, offered some words that were uncomfortable for some. Speaking of the Internet activist's alleged crime of downloading millions of academic articles, Szoka stepped out of the night's orthodoxy of holding Swartz up as a hero. "I cannot condone what Aaron did," Szoka started, about to launch into an argument about how Internet freedom should not be a partisan issue. He was cut off before he could go any further.

"Come on!" shouted a man from the crowd. "Come on!"

As Szoka tried to speak again, someone else shouted out: "Knowledge for everyone!"

Then from a different corner: "We're free!"

"Just don't come then!" cried another.

For some in the audience, a belief in the free flow of information apparently had a limit. The protests were threatening to become more raucous when Swartz's partner, Taren Stinebrickner-Kauffman, stood up at the front of the red-carpeted caucus room at the Cannon House Office, the working quarters for many members of the House of Representatives. Ornate chandeliers hung heavy from the high ceilings.

"I'm Aaron's partner," Stinebrickner-Kauffman said, turning towards the rest of the room. "Can everyone please be quiet?" She gestured towards Szoka. "I'd like to hear him speak." The audience applauded.

Szoka was allowed to add nuance to his comment. "I cannot condone what Aaron did," he repeated, "but the law that punished him was an unjust law."

Szoka identifies as a Republican; Swartz, who committed suicide on January 11 under pressure of an indictment that could have seen him serve decades in jail for illegally downloading JSTOR articles from MIT, had campaigned for Democrats. TechFreedom, Szoka said, stands for "free speech, free minds, and free markets," which is not perfectly in line with the progressive hacktivism espoused by Swartz, who co-founded a group called Demand Progress. Szoka’s point last night was that Republicans and Democrats shared enough in common on Internet freedom issues to join forces, and that the fight to fix the law under which Swartz was charged – the outdated Computer Fraud and Abuse Act (CFAA) – should not be an ideological one. "The trick is to marry activism with careful draftsmanship to get the law right," he said.

And then he dropped a line that somehow escaped the heckles his opening statements has raised: "Don’t look at Aaron as a martyr for openness."

Szoka was brave to take to the podium in that room and proffer such a pronouncement. It was, effectively, a challenge to a room of activists – or at least many people sympathetic to activists – and it struck a discordant note in the harmony of the memorial. Going by last night’s evidence, Swartz is very much destined to be seen as a martyr.

Earlier in the evening, copyright scholar and activist Lawrence Lessig, Swartz’s longtime friend and collaborator, held back tears as he vowed to carry on the young man’s work. Swartz’s soul, passion, and ideals live on, Lessig said, and his dreams are bigger today than they were a month ago. “The only difference is that we don’t have Aaron to help us reach for them.” Lessig concluded his speech with the words: “We love you, Aaron, we live for you, and we will not rest.” 

Senator Ron Wyden, a Democrat who opposed the controversial Stop Online Privacy Act (SOPA), promised to reform the poorly written CFAA. “We are going to change this unjust law,” he said to applause.

In her speech concluding the night, Stinebrickner-Kauffman said the country needs to pass “Aaron’s Law” to make the US safe for the “next generation of Aarons.”

If successful, the reform of the CFAA – passed in 1984, before the advent of the Internet and since amended several times – would have happened in large part because of Swartz’s death. His case is what has drawn public attention to the flawed legislation. That outcome almost certainly wasn’t Swartz’s intention, but it will be seen as one of his gifts. While nothing will soothe the pain of losing Swartz, people who have been touched by his life may console themselves that something good came out of his passing.

As it turns out, contrary to the perceived robustness of US democracy, political change in America is often tied to martyrdom of some sort. It took an egregious mass shooting, one that claimed the lives of 20 young children, before President Obama and Congress got serious about the gun control debate. It took the suicide of two kids for Massachusetts to pass an anti-bullying act. The Republicans had to be humiliated in a Presidential election in which Mitt Romney won only 27 percent of the Hispanic vote for the party to change its tone on immigration. And New Jersey and New York had to suffer a devastating hurricane before the words “climate change” became a 2012 election issue.

So it will be with Aaron’s Law.

It shouldn’t be that way, of course. In each of the aforementioned cases, Americans have been armed with enough data to enact good policy before disasters strike. Before Newtown, there was Columbine and Virginia Tech and Fort Hood and Aurora. There were alarming bullying statistics in the US before an 11-year-old and a 15-year-old killed themselves in Massachusetts in 2010. The Romney campaign knew going into Election Day that his refusal to promise immigration reform would harm his chances among Latino voters. Data have pointed to climate change as a planet-endangering problem for years before freak weather events started becoming more frequent and more intense in the US.

In other words, the US doesn’t need martyrs to make good policy – it needs preemptive action based on data. We need to go the full Nate Silver on that business. And this is where startups and entrepreneurs, anyone who works in tech and believes in the power of data to inform decisions, should come in. If these people – us – had been paying attention to the data, it would be clear that the CFAA was deeply, dangerously flawed, and being used by prosecutors against Swartz in an overly aggressive and punitive fashion. In July last year, civil liberties advocates were attacking the law as out of step, saying it goes too far in criminalizing the actions of employees who violate workplace policies. It was about a year earlier when the New York Times reported that Swartz was facing charges that could result in a $1 million fine and more than three decades in jail just for downloading the documents illegally.

The data were there, we just didn’t listen to them. Swartz should not have had to die for us to get angry about the CFAA.

Entrepreneurs should care not only because Swartz was an activist and innovator – he helped create RSS, the Creative Commons, and Reddit – but also because he had a motivation that should sound familiar to any entrepreneur: He wanted to change the world.

“He wanted to make the world a better place,” said his father, Bob Swartz, last night. “For this, he was hounded to death by the government.”

“Aaron wanted everything,” said his friend and Demand Progress cofounder David Segal. “He wanted to change the whole world.”

That, too, is the motivation for many founders, one of the great mantras of Silicon Valley. Sometimes changing the world – or “following your curiosity,” as Representative Darrell Issa would put it – means you step over the lines of what the law strictly allows. As Swartz’s father pointed out, that’s true in the cases of some of the greatest entrepreneurs in history, including Silicon Valley luminaries, from phone-hacking Steve Jobs to pig-stealing Bob Noyce to Mark Zuckerberg, who as a student did plenty of shady stuff while building the earliest iterations of Facebook.

But how many entrepreneurs see the commonalities between themselves and Aaron Swartz? While Uber and Airbnb ride the law’s boundaries in order to innovate in business, Swartz and his ilk ride the law’s boundaries to innovate for the betterment of the way we live our lives. The line of distinction between entrepreneur and activist is thin enough that one should support the other. Both groups should be listening to the data. When it presents itself loudly enough, it is incumbent on all of us to pay attention, to fight, to change policy before a martyrdom can even enter the realm of possibility. That would be democracy functioning how it is supposed to. That would be doing justice to the word “innovation.”

In his speech, Representative Alan Grayson, a Florida Democrat for whom Swartz had worked, recounted how that morning he had chosen a tie at random. The one he happened to grab carried a print of “Starry Night,” a painting by Vincent van Gogh, another brilliant man who died too young. Grayson quoted lyrics from Don McLean’s song about the artist, which he felt were pertinent to the evening. The song’s chorus goes like this:

Now I understand what you tried to say to me / And how you suffered for your sanity / How you tried to set them free / They would not listen, they did not know how / Perhaps they'll listen now.
Grayson concluded his speech with a simple statement that ought to resonate across Silicon Valley just as much as it should in the halls of Washington DC:

“It’s time we listened.”