Our Government’s UnPATRIOTic Investigation of Aaron Swartz

As I noted back in December 2010, as soon as Eric Holder declared WikiLeaks’ purported crime to be Espionage, it opened up a whole slew of investigative methods associated with the PATRIOT Act. It allowed the government to use National Security Letters to get financial and call records. It allowed them to use Section 215 orders to get “any tangible thing.” And all that’s after FISA Amendments Act, which permits the government to bulk collect “foreign intelligence” on a target overseas–whether or not that foreign target is suspected of Espionage–that includes that target’s communications with Americans. The government may well be using Section 215 to later access the US person communications that have been collected under an FAA order, though that detail is one the government refuses to share with the American people.

At no point would a judge have the opportunity to challenge Holder’s assertion that a website publishing documents offered up anonymously is engaged in Espionage. All it would take is Holder’s assertion that it was, and those investigative powers would become available.

No matter how many Americans got sucked up into that investigation.

Which is why I find it interesting that Aaron Swartz’ lawyers were asking, last summer–but got only indirect answers–about how the government had collected some of the evidence, particularly emails, turned over to the grand jury.

This paragraph asked the government to “identify the origin of any and all statements of Aaron Swartz including but not limited to emails, text messages, chats, documents, memoranda or letters, i.e., to identify the source from which each statement was received and the legal procedure used to obtain each such statement of the defendant.” Swartz has received in discovery internet memoranda and chats purporting to be from him. For example, the discovery contains a number of chats on googlegroups.com which contain entries which facially indicate that Swartz was a participant in the communications. The discovery also contains a number of emails which on their faces indicate that they were either to or from Swartz. Swartz requires the additional information requested – the source of these statements and the procedure used by the government to obtain them – to enable him to move to suppress such statements if grounds exist to do so, which he cannot determine without the requested information.

The government offered this explanation.

In Paragraph 15, the defendant would require the government to identify the origin of any and all statements of Aaron Swartz in its possession and the legal procedure used to obtain the statements. All of the emails, text messages, chat sessions, and documents containing statements provided by the defendant relevant to this case were obtained either from individuals with whom the defendant communicated or from publicly available websites stored on the Internet. No emails, texts messages, chat logs, or documents were obtained from Internet service providers using orders under 18 U.S.C. 2703(d). As previously represented to defense counsel, there was no court-authorized electronic surveillance in this case. [my emphasis]

The government admits the defense has asked for the content and origin of all Aaron’s statement in its possession. In response, it described how it had gotten Aaron’s statements relevant to this case–which may well be just a subset of Aaron’s statements in their possession. It also says that it did not obtain any of his statements (presumably referring to the larger potential universe) using 18 USC 2703(d), which is how DOJ demanded Twitter information on four WikiLeaks figures in late 2010 to early 2011. It suggests everything it got relevant to this case was either willingly from people involved in private conversations with him–though it didn’t say whether it asked for them specifically or not–or from publicly available places. And it alludes to an earlier representation to the defense about whether or not it had intercepted Aaron’s communications in this case.

I believe these are the representations in question, which comes from early discovery discussions in August 2011.

C. Electronic Surveillance under Local Rule 1 16.1 (C)(l)(c)

No oral, wire, or electronic communications of the defendant as defined in 18 U.S.C. § 2510 were intercepted relating to the charges in the indictment.

D. Consensual Interceptions under Local Rule 1 16.1 (C)(l)(d)

There were no interceptions (as the term “intercept” is defined in 18 U.S.C. § 2510(4)) of wire, oral, or electronic communications relating to the charges contained in the indictment, made with the consent of one of the parties to the communication in which the defendant was intercepted or which the government intends to offer as evidence in its case-in-chief.

As you can see, in this statement the government made in August 2011 anticipated some of the same dodges the government was making in June 2012.

But in the earlier statement, the limitation on its assertions are even narrower than the later one. Whereas by June 2012 they were making assertions about “this case” in general, when they first discussed the issue, they discussed only the communications related to “the charges contained in the indictment” (though presumably they may have still been considering other charges).

Also, the second paragraph makes it very clear it is discussing intercepts only as defined under the Title III definition for intercept, which pertains to communications collected in transit. I’m not sure what the government considers communications collected under FISA and stored, though I would not be surprised, given all the discussions about the government yoking Section 215 onto FAA if they had some creative treatment of those US person communications.

None of that is proof that they had accessed Swartz’ communications via other means or, indeed, that they have any communications outside those pertaining directly to JSTOR downloads.

But their very careful hedges sure seem to leave that possibility open.

 

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.

25 replies
  1. orionATL says:

    wow, ew,

    what a great job of beginning to untangle the hydra’s snakes.

    and what better example than one involving egregious, totally uncalled for prosecutorial viciousness toward a caring, highly competent young activist.

  2. orionATL says:

    @orionATL:

    it was guaranteed to happen; now it has.

    sooner or later the fbi, the doj, the natl security administration, the dhs, the cia was bound to begin using the patriot act to foil domestic political activism – activism nvolving criticizing our gov’t’s or a leader’s behavior or changing the gov’t or its leaders.

  3. eCAHNomics says:

    Lots of Swartz documents here. http://cryptome.org/

    Heard on another site that Richard Clarke is telling his nearest & dearest that ePATRIOT act is written & ready for an incident to roll it out & pass it in a jiffy.

  4. joanneleon says:

    If there was an informant in the google group (or wherever), and that person was turning all chat sessions (or whatever)over to the government on a regular basis, would that be one explanation for the govt.’s response about how none of the info was obtained via surveillance and instead it was provided to them?

    All of the emails, text messages, chat sessions, and documents containing statements provided by the defendant relevant to this case were obtained either from individuals with whom the defendant communicated or from publicly available websites stored on the Internet.

    And, just a thought, and I’m probably miles behind everybody else on this… if you have access to all communications that have been hoovered up by the government… you could comb through all of Aaron’s stuff, find the things you are interested in, and then go lean on one of the other correspondents, threaten them, and get them to turn it over to you, couldn’t you? And then say that the copy you received and placed into evidence was given to you willingly and was not obtained via surveillance?

  5. emptywheel says:

    @joanneleon: Yes, they were suggesting someone had turned it over, but it need not be an informant. Could just be someone forced to testify. While I doubt it was her, Swartz’ then girlfriend was given immunity and forced to testify to the GJ.

    And yes, I do believe the govt now launders its NatSec collected evidence in the way you described. Before, when it was illegal, there was the chance that the poison fruit would be thrown out as well. But not now. So they can do that to hide the full extent of their surveillance.

  6. Denali says:

    This is truly scary stuff. Keep turning over the rocks, Emptywheel. Your work is amazing. But be careful.

  7. pdaly says:

    Here’s a 1 hour “Surveillance Teach-In” with Jacob Applebaum and ex-NSA whistleblower Bill Binney

  8. thatvisionthing says:

    Me dropping in from the ozone — and ew, please delete this if it’s too out of touch — I’m only skimming stuff here and haven’t/can’t delve now, haven’t read what you all have, x days. I’ve been busy. But what’s floating in my head as I do other things: Just wondering, did Aaron Swartz ever make any previous suicide attempts? He had a long history of depression, it wasn’t something he hadn’t faced before, and he wrote about not succumbing to challenges but leaning into them.* I’m thinking there’s a difference between talking suicide and actually doing suicide. Because I’m wondering if he really committed suicide, or if he could have been suicided. And then what that says.

    Like, do I understand it right, that he did it with his belt on a door? You mean, like D’Angelo was suicided in The Wire? I am still grieving D, by the way. He had his own integrity, and for that he had to go.

    Plus, Eric Holder (Sucks)’s role in this? Is it / will it / can it be known? I always think of Jesse Trentadue’s letter to Patrick Leahy:

    http://dissentradio.com/tf/121908_JESSE_T_Ltr_to_P_Leahy_Judic_Commttee.pdf

    No one could be less suitable to uphold the principles of justice in America than Eric Holder. And I would like the opportunity to appear before the Judiciary Committee to testify to that fact.

    ~ Jesse C. Trentadue to Patrick Leahy, December 19, 2008

    Jesse’s brother Kenney was suicided (magically “hanged” though photographs of his corpse show otherwise) while he was a federal prisoner, and Jesse contends (from FOIAs) that Holder as Deputy AG and Acting AG in the Clinton years was in charge of the “Trentadue mission” to keep his brother’s murder covered up and to keep Congressional hearings/oversight into the Oklahoma City bombing from happening. I’ve posted many comments on this before here and at FDL, here’s one: http://my.firedoglake.com/mspbwatch/2012/02/07/senator-patrick-leahy-is-ignoring-allegations-of-misconduct-by-a-judicial-nominee/#comment-10

    So I’m wondering, whatever the authorization route was for whatever the feds did to Swartz, sooner or later does it cross the path of Holder (and Leahy)?

    * Aaron Swartz, Lean into the Pain: http://www.aaronsw.com/weblog/dalio

  9. pdaly says:

    OT: Larry Lessig has a second post about Aaron Swartz (“A time for silence”).
    Lessig mentions that 1/15/2013, the day Aaron was buried, also marks the 10th year anniversary of the US Supreme Court decision of Eldred v. Ashcroft. (Eldred lost).

    Larry Lessig gave the oral arguments for that case in October 2002 in Washington DC and invited Aaron Swartz, then just shy of 16 years, to attend.

    Lisa Rein along with Aaron and a few others in the Creative Commons team documented the wait outside the US Supreme Court Building the night before oral arguments. (According to Aaron’s blog, he eventually went to sleep in a B&B and almost missed oral arguments the next morning).

    http://www.lisarein.com/videos/eldred/

    Choose “video 4” to hear and see a young Aaron Swartz answer the question why he was there. He ends with “and Larry invited me–couldn’t turn it down.”

    Seeing how young Aaron was in 2002–just a year post 9/11–makes me realize how many young adults and current college students have only known a post 9/11 US government.

  10. JohnT says:

    @eCAHNomics:

    cryptome rawks! One of my go to sites, along with emptywheel of course.

    ePATRIOT. I wouldn’t be surprised.

    One reason the PATRIOT Act was written so quickly was because a lot of the sections were already written and included in Anti-Terrorism and Effective Death Penalty Act of 1996. Surprisingly for some people, it was the Democrats who were pushing the limits of government over-reach

    In May 1996, Reps. Charles Schumer (D-NY) and John Conyers (D-MI) introduced H.R. 3409 “to combat domestic terrorism.” The bill, titled the “Effective Anti-Terrorism Tools for Law Enforcement Act of 1996,” would expand the powers granted to the FBI to engage in multi- point (roving) wiretaps and emergency wiretaps without court orders, and to access an individual’s hotel and vehicle and storage facility rental records. It also relaxed the requirements for obtaining pen register and trap and trace orders in foreign intelligence investigations.

    And also surprisingly, it was the House Republicans who came to the rescue

    Late in the night of August 1, a House Republican agreement was reached. August 2, 1996, the House passed H.R. 3953, the “Aviation Security and Anti-Terrorism Act of 1996.” …. The proposals for increased wiretap authority were excluded. The digital telephone funding provision was deleted. Instead, the bill actually enhances privacy safeguards under the Privacy Act and the wiretap laws, by increasing the penalties for illegal use of electronic surveillance information.

    But actually, the Republicans actions were just political posturing (see: Shrub, and all the Republicans since 2001 not named Ron Paul)

    PS Where’s Trash Talk?????? Does cheese give people a weekend long hangover?

    Dontchyaknow the countdown is on for the Habaughcalypse … or is it Harbaughmageddon?

  11. orionATL says:

    @JohnT:

    tx, john t,.

    i didn’t know this, but i’m not the least surprised now that you’ve made it available to us.

    i suspect schumer and conyers (both judiciary committee veterans) thought they were doing good things, but now we and they see the consequences of tinkering with the constitution’s bill of rights where goverment police (however we name them) are involved.

    there are still two parties in u.s. politics, but the question now, in any one election, is simply who seems likely to do the least damage to the common good at the moment.

  12. emptywheel says:

    @Saul Tannenbaum: I think it goes back to my comment–several threads back or maybe on twitter–about how we read differently. I REALLY appreciate hearing both your IT side and your personal experience w/MIT. That’s an invaluable part of the narrative, one I’m grateful you’ve got.

    Me, I’ve been reading these court documents for a while–reading them as a lit person would, not a lawyer, per se (though of late I get accused of reading like a defense attorney). I’ve got the luxury of reading what the lawyers are saying, but which are absolutely meaningless as far as the law goes. By that I mean, Aaron’s lawyers pointed to a bunch of shit w/their suppression motions about what was hinky with this prosecution. Few of them would have made much difference in the prosecution. But they are critically important when 1) you realize that they do make a difference in what the govt was trying to do and 2) they may be connected to events outside of the narrow facts at issue within Aaron’s case.

    ThAT’s something that’s increasingly true in trials where the govt gets to play their secrecy card, too. Cause the judges are almost never going to make them reveal their hand. Which means the govt plays that hand fairly aggressively.

  13. lefty665 says:

    @Saul Tannenbaum: re remarkable. Marcy, Bmaz, Jim, Rayne do a remarkable job. Here in the comments, as elsewhere, there’s often as much emotion as knowledge and experience. You brought experience in the local Cambridge culture and in institutional IT management. That perspective is invaluable and helps inform discussion from top down reporting to why and how. It’s the kind of synergy that keeps me coming back and throwing in my 2 cents worth when it seems (however vainly) I have content to add to the discussion.

    Please hang around. Who knows, if enough of us stand up and keep calling “Bullshit” for cause we will be both exercising our right to speech and obligation to petition to help Gov’t see the error of its ways. It beats the hell out of creeping off gentle into that goodnight.

  14. mlnw says:

    Have you thought of running a post on Kim Dotcom as a counterpoint to your valuable posts on Adam Swarz?

    The politics of all of this has swamped the legality of it, notwithstanding legal issues and rights on the other side Right now, the politics of it has led the government to abuse its prosecutorial powers. Yet, in the end, no political system or body of laws will be able to trump the masses if they believe the law is flawed or illegitimate- especially as here where there seems to be a form of mass “civil disobedience” in the market place. Too bad the same mass support was not, and has not yet been rallied for Swarz, or Assange or Manning, or for their efforts to inform and educate the public with information that is their right to have. A global mass movement is needed to advance those issues and protect those values, and would have even greater impact if allied with the peace movement.

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