Lessig
Lessig
Sep 8 · 14 min read

A couple of weeks ago, I signed a petition (the site has since been taken down, but you can see it at archive.org) expressing my support for Joi Ito. Not unexpectedly, that signing produced anger and outrage among many, and among some of my friends. I had wanted, in the spirit of the Net, to respond and explain then. I was asked by Joi’s friends not to. Yesterday’s events terminate that injunction. What follows is an explanation and an account, with as little emotion as I can muster.

I had known of Joi’s contact with Epstein since about the beginning. He had reached out to me to discuss it. We are friends (Joi and I), and he knew I would be upset by his working with a pedophile. He knew that because he knew that I had been extensively abused as a kid, and that I am ferocious in my anger at people and institutions that protect abusers. (Defenders of the Catholic Church just love me for this.) Indeed, as I have come to understand myself, I see this anger as the whole reason for the work I do. Institutional corruption is just a fancy way to frame the dynamic of the weak enabling evil to do wrong.

Our conversations then were about his diligence to determine whether Epstein remained an abuser. I am constitutionally skeptical about claims that pedophiles reform. Pedophilia is alcoholism; it is never gone (without chemical castration), it is only suppressed. Or so I can’t help but believe — I am not a scientist, and I have studied the facts not so deeply. But it is how I feel the wrong that evil is. It is how Joi knew I felt it. And so we had what would not have been an easy conversation about whether this criminal continued his soul-sucking crimes.

Joi believed that he did not. He believed Epstein was terrified after the prosecution in 2011. He believed he had come to recognize that he would lose everything. He believed that whatever else he was, he was brilliant enough to understand the devastation to him of losing everything. He believed that he was a criminal who had stopped his crime. And nothing in his experience with Epstein contradicted this belief.

It was not my fight. I didn’t have the stomach or the ability then to do my own investigation. I wish now I had just screamed “don’t” to Joi. But I didn’t—and I wouldn’t have. Indeed, though I don’t remember this precisely, I probably told him that if he was convinced, then it was ok. Because the truth is that—as I thought about it then—if Joi believed as he did after real diligence, I didn’t believe he was wrong to take Epstein’s money anonymously.

That belief — of mine—was a mistake, for reasons that I’ll return to below. But we should start with why that belief is even conceivable before I return to why it is wrong.

I thank god that I’ve never been obligated to raise money for an institution like MIT, because I know that in every moment of that existence, I would be forced to confront a gap between what I believe is right and what every institution does. And yet, as a person charged with fundraising, I would be pressed to adopt the ethics of the institution, not the ethics of myself.

Divide the entities or people who want to give to an institution like MIT into four types.

  • Type 1 is people like Tom Hanks or Taylor Swift — people who are wealthy and whose wealth comes from nothing but doing good.
  • Type 2 is entities like Google or Facebook, or people whose wealth comes from those companies. These are people who are wealthy because of their work within companies of ambiguous good. Some love them. Some hate them. Some think they are the key to all that’s evil in the age that’s coming. Some think they are the key to all that will be good.
  • Type 3 is people who are criminals, but whose wealth does not derive from their crime. This is Epstein, but not just Epstein. It may be that we’ll discover that Epstein got rich by blackmailing people whom he had encouraged or enabled to commit abuse. I doubt it, but it’s possible. Suffice it that when Joi was investigating whether that criminal continued his crime, no one was suggesting that his enormous wealth was the product of blackmail or sex slavery. He was, the world assumed, a brilliant, savant-like investor, who was also a sexual predator.
  • Type 4 is entities and people whose wealth comes from clearly wrongful or harmful or immoral behavior. The RJ Reynolds Foundation, the Sacklers, the Kochs: I recognize that people have different views about these people or entities, but it is not hard to identify the enormous harm that each has caused. Smoking has killed multiples of the German Holocaust. Since 1999, more than 200,000 have died from OxyContin overdoses — four times the number of Americans killed in Vietnam (even if that’s less than a fifth of the number of people killed in that insane war). If there is a single family responsible for the fact that we to this day have no comprehensive legislation addressing climate change, it is the Kochs. This money is blood money. It is wealth that is great because of the harm.

Universities wish they could fund their work with Type 1 money exclusively. I can’t imagine that there is a single university in America that does. Instead, every university takes all four types of money. That’s not to say that the universities don’t have standards and don’t discriminate among the various sources within each type. That’s the clear lesson from Ronan Farrow’s piece yesterday: apparently MIT, like probably every great university, maintains a list of “disqualified” donors. Farrow will be shown to be wrong about whether the administration told Joi that Epstein was disqualified when the Media Lab took his money, but that’s a detail for the moment. The point just now is not that universities take whatever money is offered to them. The point is simply that in any major university, there is money from each of these four buckets.

That fact is what would make raising money for universities so difficult for me. Yet one way around that difficulty is to police the different motives that givers might have. Some simply give to support the university or the science the university advances — whether anonymously or not. But some give their money to whitewash their reputation. No one who knows little about Rockefeller or Carnegie thinks anything negative about those criminals. That’s because whitewashing works. And since time immemorial, there have been people or families keen to wash away the stains of blood money. Or at least, to burnish the ambiguity of their reputation by leveraging the brand of great universities.

And here then would be the rub for me at least (because most universities don’t follow this rule): I think that universities should not be the launderers of reputation. I think that they should not accept blood money. Or more precisely, I believe that if they are going to accept blood money (type 4) or the money from people convicted of a crime (type 3), they should only ever accept that money anonymously. Anonymity — or as my colleague Chris Robertson would put it, blinding — is the least a university should do to avoid becoming the mechanism through which great wrong is forgiven. Were I king, I would ban non-anonymous gifts of type 3 or type 4.

Obviously, the difficulty with such a rule is distinguishing type 2 from type 4: Is Warren Buffet type 4? Obviously not. Is Bill Gates? In my view, plainly not. Is Google? So far, in my view, not, but we’ll see. Is RJ Reynolds? Plainly yes. I have my views, but I realize my views are both more conservative and more liberal than others. Which is why such a rule is so difficult — however clearly, in my view, it may be compelled by the ideals of any great university.

Ok, that’s a lot of words to get to a critical point about the Joi Ito story: Everyone seems to treat it as if the anonymity and secrecy around Epstein’s gift are a measure of some kind of moral failing. I see it as exactly the opposite. IF you are going to take type 3 money, then you should only take it anonymously. And if you take it anonymously, then obviously you will take the many steps detailed by Farrow to keep it secret. Secrecy is the only saving virtue of accepting money like this. And rather than repeating unreflective paeans to “transparency,” we should recognize that in many cases, secrecy is golden. I suspect MIT takes similarly severe steps to keep the academic records of its students secret. Good for them, for here, too, transparency would be evil.

Thus when Joi was convinced that the crimes had ended, and he took Epstein’s money, anonymously, he was doing, as I saw it, and likely said, then, the most that any university administrator could do, given the unending need to raise money. That view was then confirmed by MIT’s administration directly when they told Joi to take the money, conditioned upon its anonymity.

But what I — and Joi—missed then was the great risk of great harm that this gift would create. Sure, it wasn’t blood money, and sure, because anonymous, the gift wasn’t used to burnish Epstein’s reputation. But the gift was a ticking time bomb. At some point, it was destined to be discovered. And when it was discovered, it would do real and substantial pain to the people within the Media Lab who would come to see that they were supported in part by the gift of a pedophile. That pain is real and visceral and substantial and not taken seriously enough. And every bit of emotion and outrage from victims that I have seen in this episode is, in my view, completely justified by the completely predictable consequence of that discovery. If you have not been abused, if you have not experienced that sense of being used and helpless, that may well not be understandable to you. Maybe. But I believe that empathy is a basic human emotion. And I believe that all of us should recognize the pain that only some of us can feel in seeing the institutions around us painted with the names or wealth of those who do that wrong.

Joi should have recognized that risk. He had it in him because he had come to talk to me about it at the start. He knew people could be hurt by just knowing the facts. But he assumed they would not be harmed, because he assumed that they would not know the facts. No doubt, he had more confidence in confidentiality at the start than later on. But at the moment the wrong was initiated, he should have known that time bombs do not belong within the walls of great institutions. And he should not have brought this time bomb within the walls of the Media Lab.

He should have known that.

I should have known that.

It is the pathology of my profession that we allow emotion to be so effectively rationalized. So I didn’t allow the emotion to speak when I spoke to Joi then. I was driven by the reasoning that I have enslaved the bits above to describe. I am ashamed — ashamed—that I did not do for my friend the one thing I was uniquely qualified to do: I am ashamed that I did not let him see just how hurtful it was to imagine slime like Epstein living within the walls of MIT, even if hidden by promises of anonymity. I fear that I have become so good at intellectualizing what happened to me that I am awful at showing the raw soul-wrenching destruction that that evil is. I should not have reasoned with Joi when he came to me. I should have wept.

I’m not saying that would have stopped him. I’m not saying that was my job. But it was my job to be his friend. I wasn’t the friend I should have been.

And so now Joi is gone. Not dead. Not destroyed. I can’t imagine the creative greatness that the next life of this sweet soul will produce. It will be greatness beyond measure, no doubt, again.

But as I reflect on how we got to this day, yesterday, I can’t help but fear for our time. Can we deal with any complicated issue, sensibly? Or humanely? Or with integrity?

I know that Farrow’s article is crafted to draw the following sentence into doubt: Everything Joi did in accepting Epstein’s money he did with MIT’s approval. I trust the MIT review will confirm it (yes, I remain exactly that naive). So why is he resigning, rather than others in the administration?

And if Ito must go because Epstein’s wealth was accepted anonymously, who else should go because of blood money accepted openly? Will the planet have an equal advocate who demands justice for the Koch money? Or the victims of opioid abuse for the Sackler money? The world is obsessed with erasing the names of 18th-century racists (as if there were any leaders in America in the 18th century who were not racists in our 21st-century sense); what about the names of those who profited from harming others, and destroying the planet?

But more fundamentally, do we even have the capacity to make complicated judgments of justice anymore? Kate Darling doesn’t forget Joi his wrong (that should be grammatical; we need that construction); yet she didn’t believe he should leave. Isn’t that the human condition with all of us? Is there a single person whose story is not complicated in just this sense? Is the balance just one part, or all parts, together?

So put the parts together: The MediaLab accepted an anonymous contribution from Epstein through the help and direction of Joi. The Lab did not (as “Professor Anonymous” wrote to me, his outrage apparently blinding him to irony) “help reputation-launder a convicted sex offender.” It would have, had it not be anonymous; but that’s the point about it being anonymous. Joi accepted this contribution with the full knowledge and approval of MIT. (Farrow’s suggestion to the contrary will be shown not to be correct, as will the claims that the Lab lied to the press.) And then when that anonymity was broken, Joi acknowledged the mistake (as I have described it, the mistake in creating the potential for such pain to be so viciously revived), owned it, and apologized. The apology was not just a post — it was hours and hours of engaging and acknowledging the pain to his community, and the wrong in having caused it. That balance, so many have so quickly concluded, yields the result that Joi must go. And so is he gone.

MIT is less now that Joi is gone. I suspect even his most vocal critics recognize as much. So is what MIT lost worth what “the cause” has gained?

As an unavoidable supporter of that cause, I can’t believe it is. We need the world to be honest and take responsibility for the wrong it has allowed to occur. We need leaders in the world to be honest and take responsibility. But I am certain that after yesterday, the media strategy for responding to charges like this has changed, dramatically. There will be no more apologies. There will be no more endless effort to reach out and explain mistakes. There will be no clear confessions of error. There will only be the strategy that a senior faculty member at Harvard advised should have been Joi’s strategy here — keep your head down, say nothing, and wait for the storm to pass.

That will be a loss, not progress.

So yes, I continue to stand with Joi — humbled by my blindness, acknowledging more his own humanity, and saddened we live in a moment: when so much good can be done, by holding wrong to account, but only so crudely and so painfully and so wrongly. This is us, now. We should all be better.

Addendum — Weds, am.

I wrote this story Sunday. I had no sense it would trigger the attention it has. I’ve not had the chance to process even a small slice of the reaction. I apologize for that — all of this comes on top of an already overcommitted schedule. I hope to have the chance to respond more carefully.

Yet there are a couple points I want to make if only to avoid misunderstanding.

If the question is not what you say, but what is heard, then there are two things that were heard that I want to make sure no one understands me to be saying.

On whether Type 3 contributions should be taken

I’ve argued that “IF” a great university takes type 3 contributions, then they should be anonymous. That conditional has been heard by some to mean I support the idea of a great university taking Type 3 contributions. I do not. I believe a great university should say, absolutely, it won’t take money from criminals. My only point was that MIT had apparently decided to take Type 3 contributions. “IF” they do that, then of course the contributions should be anonymous.

On whether the voice of victims are found in these paragraphs

More painfully to me is the suggestion by some that the voice of victims (and others) is not clear enough in these paragraphs. Again, if that’s true, that’s on me. But as I had meant the whole structure of the argument to turn on the particular significance of the pain experienced by victims—the paragraph beginning “But what I — and Joi-missed”—I certainly believe that that pain is fundamental to this account, and the whole reason why taking this particular kind of Type 3 contribution was wrong.

Again, were I king, I’d say no Type 3 contributions. Period. But as I’m not king, that’s not the rule, and it is not MIT’s policy. So that entailed the logic of “if you take them, at least don’t give the criminal a chance to publicly launder his reputation” by making the donation anonymous.

But then the point of the paragraph beginning “But what I — and Joi — missed” is to say that even if you take Type 3 and you take them anonymously, it is a mistake to take this particular type of Type 3 contribution — precisely because of the pain it would cause if it were eventually revealed. Maybe you can take the money of a tax fraud, again, if and only if anonymous. But the kind of pain triggered here means that that general rule should not apply here. Which again is why I said I believe it was a mistake to take this money, even if anonymous.

A mistake by whom

I’ve described three mistakes: (1) I was wrong in my advice to Joi. (2) Joi was wrong in his decision to accept this kind of Type 3 money. (3) MIT was wrong to permit Type 3 money in general, and this particular contribution in particular. My only criticism of anything that’s happened is that the attention and energy these mistakes have triggered is not appropriately balanced.

The consequence of my essay is that people are more critical of me. That’s right and appropriate — that’s the effect of a confession. But the primary intent of this essay is to say that people should be more critical of MIT. Joi worked for MIT. He bears his own moral responsibility, of course. But the institution that knowingly directed and enabled and allowed this contribution bears responsibility too.

At the very start, MIT seemed to accept that responsibility. When Joi apologized, MIT did so too, in a sense, as well. But when Ronan Farrow’s piece suggested that perhaps MIT did not know of these contributions, and that Joi was, therefore, acting rogue, it was wrong for MIT not to make it completely and absolutely clear that that reporting is not correct. There is no doubt that MIT knew and approved of these contributions, while they were solicited and when they were received.

MIT’s defense is that it is “completing a review.” That’s just too convenient. (**see the update**) The lawyers will take months. The review will be released sometime after that. Meanwhile, MIT profits from the suggestion that somehow this whole mess was not their whole mess, too, while Ito is scapegoated.

The buck stops where the check is cashed. That was MIT. And as angry — and rightfully angry, again, as I think this whole mess was a mistake—as people are, the real good that could come from that anger is if it were directed to the end of changing the policies that produced this mess. Let the rules about whether to take Type 3 contributions be changed — never, under any circumstance. And let the rules about Type 4 contributions be changed — only if anonymous.

Both of those changes may seem obvious to you. But recognize, they would be fundamentally resisted by practically every development office in every great university. The hard work is to fight that resistance.

And win.

UPDATE

MIT’s President, Raphael Reif, has now published a letter acknowledging that MIT knew of this fundraising and directed the anonymity. This is the right thing for MIT to do.

Lessig

Written by

Lessig

law professor, activist.

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