DOJ Invoked Aaron Swartz’ Manifesto To Justify Investigative Methods

In the original July 14, 2011 indictment of Aaron Swartz, DOJ described him this way.

Aaron Swartz lived in the District of Massachusetts and was a fellow at Harvard University’s Center for Ethics. Although Harvard provided Swartz access to JSTOR’s services and archive as needed for his research, Swartz used MIT’s computer networks to steal well over 4,000,000 articles from JSTOR. Swartz was not affiliated with MIT as a student, faculty member, or employee or in any other manner other than his and MIT’s common location in Camrbidge. Nor was Swartz affiliated in any way with JSTOR.

In their September 12, 2012 superseding indictment, DOJ described him this way.

Aaron Swartz lived in the District of Massachusetts and was a fellow at Harvard University’s Safra Center for Ethics. Swartz was no affiliated with MIT as a student, faculty member, or employee or in any other manner. Although Harvard provided Swartz access to JSTOR’s services and archive as needed for his research, Swartz used MIT’s computer networks to steal millions of articles from JSTOR.

On November 16, 2012, they wrote this motion to rebut Swartz’ claims that a number of the searches MIT and the Secret Service conducted in their investigation were improper and should be suppressed.

During the period alleged in the Superseding Indictment, Aaron Swartz was a fellow at Harvard University’s Safra Center for Ethics, on whose website he was described as a “writer, hacker and activist.” Harvard provided Swartz with access to JSTOR’s services and archives as needed for his research there. Swartz was not a student, faculty member, or employee of MIT. In the Guerilla Open Access Manifesto, which Swartz actively participated in drafting and had posted on one of his websites, Swartz advocated “tak[ing] information, wherever it is stored, mak[ing] our copies and shar[ing] them with the world.”

In other words, precisely at the moment the government defended all the searches it did of Swartz, it (for the first time, I believe) introduced a new descriptor (in addition to the adjectives “writer, hacker, and activist”): Swartz wrote the Guerilla Open Access Manifesto.

The reference is particularly odd, being introduced (though not elaborated on) in this brief defending the investigative approach used by MIT and then the government. It effectively invokes First Amendment protected speech to justify investigative tactics.

The timeline laid out in the rest of the brief claims (not entirely credibly) they had no idea who was downloading from JSTOR until they arrested him in January 2011 (note, too, it is predictably vague about when the Secret Service got involved). So what Swartz wrote two years before the JSTOR downloads started is (or should be) utterly irrelevant to the legitimacy of investigative tactics, because according to the government they didn’t know about that until a good bit later.

Unless of course Secret Service was involved earlier, in which case under DOJ’s current Domestic Investigation and Operations Guide, they could use First Amendment activity as part of the predicate for an investigation.

But that’s not the narrative they lay out in this brief.

And look at the passage from the Manifesto they quote in the brief, which appears in this larger passage.

There is no justice in following unjust laws. It’s time to come into the light and, in the grand tradition of civil disobedience, declare our opposition to this private theft of public culture.

We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that’s out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. [my emphasis]

In context, much of the manifesto advocates for things that are perfectly legal: sharing documents under Fair Use. Taking information that is out of copyright and making it accessible. Purchasing databases and putting them on the web.

Aside from sharing passwords, about the only thing that might be illegal here (depending on copyright!) is downloading scientific journals and uploading them to file sharing networks.

Precisely what the government accused Swartz of.

But they don’t cite that passage. Rather, they cite the “making copies” passage–something not inherently illegal. As if that justified the investigative tactics they used.

Used as it is in this page-limited brief arguing why their tactics were legal, the citation is really bizarre. But it does seem to admit that the government considers Swartz’ role in the Open Access movement to be as much proof he was a criminal as that he chose to download the documents at MIT and not Harvard.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

17 replies
  1. orionATL says:

    and freedom of speech?

    what about freedom of speech for a dedicated, competent, experienced activist who disagrees with the gov’t’s rules and laws?

    u.s. attorney carmen ortiz was also the prosecutor in another case in which freedom of speech was trampled by the dep’t of justice, that of muslim activist terek mehanna.

    read what glenn greenwald had to say about ortiz’s treatment of first ammendment issues in that trial:

    http://www.salon.com/2012/04/13/the_real_criminals_in_the_tarek_mehanna_case/

  2. orionATL says:

    glenn greenwald refers his readers in the above article to this earlier article on the criminalization of first ammendment rights to speaknout against gov’t policy and leaders:

    http://www.salon.com/2011/09/04/speech_23/

    the point i’d like to make in citing this article is not about speech.

    rather, it is that the tactics used and honed by the dof/fbi against real or imagined terrorists are now being used in domestic political disputes as with the doj persecution-thru-prosecution of aaron swartz.

  3. phred says:

    Hmmm, this definitely has all the hallmarks of a political persecution rather than a criminal prosecution.

    I can’t help hoping that the feds finally went too far and that there will finally be some significant pushback against their tyranny.

    Thanks so much for uncovering the details for all the world to see EW!

  4. Rayne says:

    FUD play. Use the words “guerilla” and “manifesto” in pejorative fashion to ensure a negative view of Swartz.

    Never mind he advocated liberating property that already belonged to the public.

  5. joanneleon says:

    This isn’t the first time that Heymann harrassed a kid til he committed suicide.

    Swartz wasn’t the first young computer guru to come into contact with the Massachusetts U.S. Attorney’s Office who ultimately took his own life. Hacker Jonathan James killed himself in May 2008 at the age of 24, writing in a suicide note that he had “no faith in the ‘justice’ system.” His friend Christopher Scott was charged with breaching retail networks, and James was reportedly the “J.J.” mentioned in the indictment. James said he had nothing to do with the retail hack but believed that the feds would try to pin it on him. Scott had contacted him, and James believed he was working with federal prosecutors.

    “The feds play dirty. Chris called me the other day. He was in jail and they let him out. That can only mean that he too is trying to pin this on me,” James wrote in his suicide note.

    Four months after James’ death, the Justice Department announced it had reached a plea agreement with Scott. The prosecutor on the case was Stephen Heymann.

    Peters, Swartz’s lawyer, told HuffPost that Heymann had harassed several of the activist’s friends into testifying before a grand jury. Peters said federal prosecutors deserved some blame for his death, echoing comments from Swartz’s family.
    Aaron Swartz’s Lawyer: Prosecutor Stephen Heymann Wanted ‘Juicy’ Case For Publicity

    Aaron’s lawyer says that as the trial got closer the plea deal kept getting worse and worse and he wanted Aaron to do time and that Stephen Heymann wanted to get headlines and glory. Assistant US Atty’s father was a honcho in DoJ. I’m sure that’s not how he got his job though.

    But given the involvement of Secret Service, proximity of Cambridge hackers, even the timing being close to (and during) Occupy Wall Street apex, seems like it was not only his own ambition driving this thing. Pure speculation but seems likely they thought they could get Aaron to inform on someone else for even bigger headlines. I don’t know if Swartz had any ties at all to OWS but it was a time of paranoia for our law enforcement agencies and the banks, IMHO. Were they worried about genius hackers trying to harm banks? Just a thought given involvement of Secret Service.

  6. thatvisionthing says:

    From Aaron Swartz’s F2C 2012 keynote speech about stopping COICA/PIPA/SOPA:

    “Peter,” I said, “I don’t care about copyright law. Maybe you’re right, maybe Hollywood is right, but either way, what’s the big deal? I’m not going to waste my life fighting over a little issue like copyright. Health care! Financial reform! Those are the issues that I work on. Not something obscure like copyright law.”

    I could hear Peter grumbling in the background. “Look, I don’t have time to argue with you,” he said. “But it doesn’t matter for right now, because this isn’t a deal about copyright.”

    “It’s not?”

    “No,” he said. “It’s a bill about the freedom to connect.”

  7. thatvisionthing says:

    @joanneleon:

    Clive Stafford Smith was interviewed on the Scott Horton Show last November:

    http://scotthorton.org/2012/11/05/110512-clive-stafford-smith/ @ around 21:20

    STAFFORD SMITH: But look. There’s a very simple logic to some of these things. If two people are suspected of the same crime and one of them did it and one didn’t, the one who’s going to go to the police first is almost invariably the one who did pull the trigger. And the reason that is is everyone believes the system somehow works, bizarrely, you know, and they’re going to get him. So I can’t tell you how many cases I’ve had where there have been two codefendants on a case, one who did the shooting and one didn’t, where the one who did the shooting is the one who gets the deal, and then they go after the one who didn’t do the shooting. Because the one who didn’t do the shooting trusts the system to exonerate him, doesn’t realize that actually the first person to go snitch is going to be the one who did it and doesn’t realize the police are going to be naïve enough almost invariably to accept that. And I think – I did a study one time of every single person on death row in Mississippi, and it was true in the majority of cases that the guy who they’d gone after was actually not the trigger man and the trigger man had got a deal.

    So much more there.

  8. mick says:

    He was really bright, (RSS, Reddit designer) but didn’t cash in. He thought information should be shared more equitably. This made him dangerous: a scary-smart guy who can’t be bought, bribed or controlled.

    The rest is just detail. I’m sure the prosecutor will be well rewarded for her diligence seeing as how she just saved the state a pile of money and potential embarrassment.

  9. Mary McCurnin says:

    “Aaron Swartz lived in the District of Massachusetts and was a fellow at Harvard University’s Safra Center for Ethics. Swartz was no affiliated with MIT as a student, faculty member, or employee or in any other manner. ”

    I read somewhere yesterday that the Harvard and MIT JSTOR subcriptions were somehow linked and if you were affiliated with one school you could use the JSTOR of the other school. Wish I could remember where I read it.

  10. pdaly says:

    @Mary McCurnin:
    I remember reading something similar.

    But this excerpt (page 5) from the 21 page Motion to Suppress by Swartz’s attorney seems to indicate any visitor to MIT had free access to JSTOR–so Swartz’s Harvard affiliation was irrelevant:

    MIT has a liberal guest access policy, which was described by Tim McGovern, MIT Manager of Network Security & Support Services, as follows:

    No authentication of visitors. Visitor network access is provided as an on-demand self- service process for anyone who walks onto campus, plugs in, or elects to use our wireless network, and declares themselves a visitor, and they get 14 days of network privileges.

    No identity verification. Visitors are asked to provide an email address. The email address is not used to verify that a bona fide identity exists . . . .

    No authentication of users accessing JSTOR.org. By agreement, JSTOR.org allows any computer with a net 18 IP address [an MIT IP address] to access their resources without further identification or authentication.

    http://www.emptywheel.net/wp-content/uploads/2013/01/gov.uscourts.mad_.137971.59.0.pdf

  11. fignaz says:

    You might want to check out David Boeri’s reports on local (Boston) NPR station WBUR. He’s a crack investigative reporter. For example, today he revealed that Swartz had a previous run-in with the Feds: “It involved a website called PACER. Believing that since federal court records are publicly paid for and should be available for free, Swartz devised a computer program to download 20 million pages. That time the Justice Department did not prosecute.”

    http://www.wbur.org/2013/01/15/swartz-attorney-ortiz

    http://www.wbur.org/

  12. thatvisionthing says:

    @fignaz: Aaron Swartz posted his FBI file online in October 2009: http://www.aaronsw.com/weblog/fbifile

    Ends with:

    April 20, Washington Field Office:

    CASE ID #: 288A-WF-238943 (Closed)

    […]

    CCIPS Attorney [REDACTED] closed the office’s case. Based on the CCIPS closing, Washington Field is closing this case as of this communication.

    I’ve just sent away for the CCIPS file.

    What’s CCIPS?

  13. pdaly says:

    @pdaly:

    This article interviews some of Swartz’s defense lawyers.

    The article singles out MIT (despite pockets of support at MIT for Swartz then and now) as the player in this case that refused to sign off on an early plea deal– even after JSTOR signed off on it. The timeline (and players’ names) would be interesting to learn.
    http://bostonglobe.com/metro/2013/01/15/humanity-deficit/bj8oThPDwzgxBSHQt3tyKI/story.html

    Also this quote makes it clear that the DOJ/prosecutors were warned (if they were not aware on their own) that Swartz was a suicide risk:

    Andy Good, Swartz’s initial lawyer, is ­alternately sad and furious.

    “The thing that galls me is that I told Heymann the kid was a suicide risk,” Good told me. “His reaction was a standard reaction in that office, not unique to Steve. He said, ‘Fine, we’ll lock him up.’ I’m not saying they made Aaron kill himself. Aaron might have done this anyway. I’m saying they were aware of the risk, and they were heedless.”

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