The PACER Investigation DOJ Revealed in 2009 But Did Not Reveal in 2011

In 2009, Aaron Swartz requested his FBI file. It showed the surveillance the FBI did in response to his liberation of 20% of federal court files. He posted excerpts from that file on October 5, 2009 (note: I don’t believe he ever posted all the contents of this and DOJ’s files; I presume they’ll all be released when FBI responds to the multiple FOIAs for Aaron’s file).

Slightly more than a year later–as Jason Leopold reported–Swartz made a similar request to DOJ’s Criminal Division.

All records related to me, Aaron Swartz, including in connection with the PACER system

Because Aaron asked for all records, including anything in connection with PACER, it would have also returned anything new.

On March 11, 2011, the Criminal Division responded that no new records had been created since his previous request for the information on October 8, 2010. But it also referred Aaron’s request to the Executive Office of the US Attorney (which would have records on investigations led by US Attorneys).

On January 11, 2011–just five days after Aaron was arrested in Cambridge–the EOUSA responded that there were 72 pages of records pertaining to him, but none of the could be turned over. They cited the following exemptions:

(b)(3): Prohibited by statute, citing FRCP 6(e) grand jury secrecy

(b)(5): Intra or interagency communications

(b)(7)(C): Privacy of those who might be mentioned in an investigation

(j)(2): Privacy Act

Basically they were exempting saying they couldn’t turn over any of the 72 pages they had because it would infringe on someone else’s privacy–the (b)(7)(C) and (j)(2) exemptions. More comprehensively, they couldn’t turn it over because at least some of it was grand jury material–the (b)(3)/FRCP 6(e) exemption. And finally, they wouldn’t turn over inter/intra-agency memos, which is often a deliberative privilege exemption.

The entirely innocent explanation for this response is that some US Attorney’s office–almost certain Washington DC–had grand jury materials related to the PACER investigation which they could not by law turn over, and which affected another person’s privacy as well (the PACER investigation would probably have also covered Carl Malamud).

That is, by far, the most likely explanation. The only question, then, is why it didn’t come up in the October 8, 2010 response, especially given that the PACER case was closed, per the FBI file, in October 2009. Though it may be that because Criminal Division had their own records, they didn’t refer it to the US Attorney’s office in question. In any case, that is the far most likely explanation.

Also note, EOUSA doesn’t cite (b)(7)(A), which is often invoked to protect an ongoing investigation. Though at the time, DOJ still operated (and still largely does operate) under its contention that it can hide ongoing investigations by lying about them.

Again, the most likely explanation here is entirely innocent: that DOJ was just telling Aaron there were documents that hadn’t previously been released–those pertaining to whatever comparatively negligible number of documents a grand jury reviewed or a grand jury subpoena returned–that for bureaucratic reasons they hadn’t revealed to him on any of his earlier requests.

But here’s what I find most interesting. As Criminal Division indicated, Aaron had just FOIAed this material in October 2010. Something led him to FOIA it again in December. So it may be worth noting that on December 1, the NYT reported on DOJ’s plan to prosecute Julian Assange and WikiLeaks. And on December 7, NYT further reported on the creative theories DOJ might use to prosecute Assange.

Update: Check out this quote in the December 7 NYT story:

“This is less about stealing than it is about copying,” said John G. Palfrey, a Harvard Law School professor who specializes in Internet issues and intellectual property.

So someone Aaron had presumably interacted with at Harvard was thinking about the distinction between stealing and copying three days before Aaron FOIAed something he had FOIAed 2 months earlier–something that had to do with the difference between stealing and copying.

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.

7 replies
  1. thatvisionthing says:

    Thickish person here. Does this “other person” scenario fit into the category that Clive Stafford Smith, author of The Injustice System, described and I quoted earlier here from a podcast interview: @ 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.

    Are you or DOJ saying there was another suspect, and was DOJ playing this person off against Aaron, as joanneleon described in the comment I was replying to, where Aaron’s prosecutor Stephen Heymann had previously hounded another computer kid to suicide? Thinking how Jason Leopold writes about the point of interrogations and rewards not being information but “exploitation,” turning prisoners into cooperative informers. Plea deals. Didn’t Aaron steadfastly refuse to accept that he was a felon, and didn’t they up the charges more?

    (Joanne’s comment:

  2. thatvisionthing says:

    Re Aaron’s FBI file that he posted online in October 2009. It ended with an entry where CCIPS closed his case, and Aaron writing “I’ve just sent away for the CCIPS file.” Has that file/request been accounted for?

  3. thatvisionthing says:

    So someone Aaron had presumably interacted with at Harvard was thinking about the distinction between stealing and copying three days before Aaron FOIAed something he had FOIAed 2 months earlier–something that had to do with the difference between stealing and copying.

    Maybe Lawrence Lessig, director of the Safra Center for Ethics at Harvard, of which Aaron was a fellow? Was Aaron’s attorney, then couldn’t be? Who thought what Aaron did was morally wrong? And for some reason I still haven’t heard explained — he didn’t explain — said the district court judge would be pissed at financial help being offered to Aaron?

    Since his arrest in January, 2011, I have known more about the events that began this spiral than I have wanted to know. Aaron consulted me as a friend and lawyer. He shared with me what went down and why, and I worked with him to get help. When my obligations to Harvard created a conflict that made it impossible for me to continue as a lawyer, I continued as a friend.


    First, of course, Aaron brought Aaron here. As I said when I wrote about the case (when obligations required I say something publicly), if what the government alleged was true — and I say “if” because I am not revealing what Aaron said to me then — then what he did was wrong. And if not legally wrong, then at least morally wrong. The causes that Aaron fought for are my causes too. But as much as I respect those who disagree with me about this, these means are not mine.


    For remember, we live in a world where the architects of the financial crisis regularly dine at the White House — and where even those brought to “justice” never even have to admit any wrongdoing, let alone be labeled “felons.”

    In that world, the question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.” For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million dollar trial in April — his wealth bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge.

  4. emptywheel says:

    @thatvisionthing: No. If you apply for a file that pertains to someone else, you need to get permission from that someone else. If the file included stuff on Malamud–perhaps real consideration to charge him, then Swartz would need to get permission from Malamud.

  5. Peter Sachs Collopy says:

    The suggestion that Aaron was reacting to investigations into Wikileaks is intriguing and compelling. I don’t think the update about Palfrey’s distinction between stealing and copying is as enlightening, though. The copyright reform movement is all about strengthening this distinction. That point would have been obvious to Aaron, and if Palfrey (to whom it also would probably have been obvious) had mentioned it to him, I doubt it would have affected his thought processes any.

  6. earlofhuntingdon says:

    Worth noting that the feds, big copyright holders and their trade associations (and their dependent Cognresscritters) consider copying data a form of stealing it. Ironic, given that Swartz was committed to freeing public information, paid for by taxpayers, from the clutches of private corporate aggregators who monopolized ready access to it.

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