The Fishing Expedition into WikiLeaks

If, as WikiLeaks claims, Aaron Swartz:

  • Assisted WikiLeaks
  • Communicated with Julian Assange in 2010 and 2011
  • May have contributed material to WikiLeaks

Then it strongly indicates the US government used the grand jury investigation into Aaron’s JSTOR downloads as a premise to investigate WikiLeaks. And they did so, apparently, only after the main grand jury investigation into WikiLeaks had stalled.

(See this Verge article on the ways these tweets appear to violate WikiLeaks’ promises of confidentiality.)

As I noted in this post, when Aaron’s lawyer requested discovery last June, he wanted material that had been subpoenaed or otherwise collected but not turned over in discovery–material that does not have an obvious tie to Aaron’s relatively simple alleged crime of downloading journal articles from JSTOR.

These paragraphs request information relating to grand jury subpoenas. Paragraph 1 requested that the government provide “[a]ny and all grand jury subpoenas – and any and all information resulting from their service – seeking information from third parties including but not limited to Twitter. MIT, JSTOR, Internet Archive that would constitute a communication from or to Aaron Swartz or any computer associated with him.” Paragraph 4 requested “[a]ny and all SCA applications, orders or subpoenas to MIT, JSTOR, Twitter, Google, Amazon, Internet Archive or any other entity seeking information regarding Aaron Swartz, any account associated with Swartz, or any information regarding communications to and from Swartz and any and all information resulting from their service.” Paragraph 20 requested “[a]ny and all paper, documents, materials, information and data of any kind received by the Government as a result of the service of any grand jury subpoena on any person or entity relating to this investigation.”

Swartz requests this information because some grand jury subpoenas used in this case contained directives to the recipients which Swartz contends were in conflict with Rule 6(e)(2)(A), see United States v. Kramer, 864 F.2d 99, 101 (11th Cir. 1988), and others sought certification of the produced documents so that they could be offered into evidence under Fed. R. Evid. 803(6), 901. Swartz requires the requested materials to determine whether there is a further basis for moving to exclude evidence under the Fourth Amendment (even though the SCA has no independent suppression remedy).

[snip]

Moreover, defendant believes that the items would not have been subpoenaed by the experienced and respected senior prosecutor, nor would evidentiary certifications have been requested, were the subpoenaed items not material to either the prosecution or the defense. Defendant’s viewing of any undisclosed subpoenaed materials would not be burdensome, and disclosure of the subpoenas would not intrude upon the government’s work product privilege, as the subpoenas were served on third parties, thus waiving any confidentiality or privilege protections. [my emphasis]

Given that this material (I’m particularly interested in the material Amazon returned to the grand jury, though also the Twitter and Google material, which after all, the main WikiLeaks grand jury requested for public WikiLeaks figures) had not been turned over to Aaron’s defense almost a full year after he was indicted, it’s fairly clear it did not pertain to (or certainly was not necessary to prove) the charges against him, which related to JSTOR.

Yet prosecutor Stephen Heymann had used a grand jury he was using to investigate that JSTOR download–a grand jury that appears not to have gotten started in earnest until the main WikiLeaks grand jury had stalled–to collect information that appears directly relevant to the WikiLeaks grand jury. And he collected it in a form such that could be directly entered as evidence into that WikiLeaks grand jury.

Let me clear about two things. First, I think this is perfectly within the range of what grand juries do. If the government suspected–and they appear to have–that Aaron’s JSTOR downloads were part of a larger effort, then it’s not surprising they investigated broadly to determine whether it was. That’s part of the significant power of grand juries–they can expand in secret to fish for other crimes. As judge Judith Dein said when rejecting Aaron’s effort to see what the government had gotten from these subpoenas, citing US v. Dionisio, “A grand jury’s investigation is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.”

But even after this fishing expedition (and I hope to show in a later post just how broad it appears to have been), Heymann apparently came up with no evidence that Aaron had broken any laws related to whatever he did with and for WikiLeaks (again, assuming WikiLeaks’ assertions are correct). After investigating for over a year, Heymann added no charges pertaining to WikiLeaks.

He just ratcheted up the charges related to JSTOR.

It appears the government tried–and failed–to establish a criminal connection between Aaron and WikiLeaks. And when they failed to do that, they increased their hardline stance on the JSTOR charges.

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.

31 replies
  1. phred says:

    “It appears the government tried–and failed–to establish a criminal connection between Aaron and WikiLeaks. And when they failed to do that, they increased their hardline stance on the JSTOR charges.”

    To what end?

    If we are assuming that the feds were trying to coerce Swartz to do something for them regarding Wikileaks, what were they trying to get him to do?

    Or was it that having failed to establish a link that could lead to criminal charges involving Wikileaks and Assange, did Heymann’s treatment of Swartz simply reflect bitter spite and a desire to punish Swartz just because he could?

    I’m fuzzy here on what Heymann’s goals were here, can you enlightment me or perhaps just wildly speculate? ; )

  2. emptywheel says:

    @phred: All of those are possibilities.

    It’s possible they were trying to coerce cooperation in a prosecution of WikiLeaks up until the end–we don’t know if there were any strings attached to those 6 months we’ve been hearing.

    It’s possible this aggressive prosecution for JSTOR was meant to be a surrogate to punish totally legal activities tied to WikiLeaks.

    Or some combination of both.

  3. phred says:

    @emptywheel: Thanks EW.

    So if it is the former (the strings attached to the 6 month offer), Swartz’ lawyer would know what those strings were. With Swartz’ death would there be anything preventing that lawyer from revealing them?

    From what I’ve read (and it is a fraction of what you and others have), I thought the sticking point was admitting guilt to felony charges. I haven’t seen anything to suggest that Heymann asked Swartz for … (fill in the blank) in exchange for giving up on the felony convictions.

    Which is to say I guess, that having come up empty in the Assange witch hunt, that by the end Heymann was acting purely out of vindictive malice.

    Although, perhaps there is more learn here that would alter that view…

    Thanks again for all of the effort you’re putting into this. Clearly, there is something rotten here and we need to get to the bottom of it.

  4. orionATL says:

    has the authenticity of the tweets been established?

    what is the likelihood these were designed and sent to discdit both swartz and wikil?

  5. phred says:

    @phred: I should clarify, vindictive malice along with a desire to make Swartz a poster boy for why everyone should be afraid to challenge the status quo as he had so ably done.

    Intimidation was clearly a big factor here as it has been in all of the federal whistleblower cases.

  6. Saul Tannenbaum says:

    Given they had evidence of a connection between David House and Swartz (Swartz’s assertion that he had a privacy waiver from House to FOIA Bradley Manning’s jailhouse tapes), why wasn’t House asked about Swartz during his grand jury appearance?

    My own partial answer to that is that the Grand Jury seems focused on a single breakfast meeting at the Oxford Spa on January 28th. Still, if this was a fishing expedition, they don’t seem to have fished as widely as they could have.

  7. pdaly says:

    @orionATL:
    I was thinking the same thing. Fake the tweets to get people to talk publicly.
    Curious that wikileaks would broadcast the name of a possible contributor.

  8. emptywheel says:

    @Saul Tannenbaum: Did House list somewhere all the people he was asked about? I thought he didn’t do so, because doing so would have basically given then the information they were seeking.

  9. pdaly says:

    OT: I came across this article by Alex Stamos.
    http://io9.com/5975592/aaron-swartz-died-innocent-++-here-is-the-evidence

    Not sure if it has already been linked to in a prior post.
    Stamos states he was the computer expert for Swartz’s defense team in US v. Swartz, that he reviewed Swartz’s “entire digital life”, and that Stamos was helping Swartz’s defense team for the April 2013 trial.

    WRT to JSTOR downloads, these details might be unpacked a bit. What is a .bash_history?, etc.:

    “Aaron did nothing to cover his tracks or hide his activity, as evidenced by his very verbose .bash_history, his uncleared browser history and lack of any encryption of the laptop he used to download these files. Changing one’s MAC address (which the government inaccurately identified as equivalent to a car’s VIN number) or putting a Mailinator email address into a captured portal are not crimes. If they were, you could arrest half of the people who have ever used airport Wi-Fi.”

    Stamos also summarizes that MIT and JSTOR interrupted JSTOR service, not Swartz:

    “The government provided no evidence that these downloads caused a negative effect on JSTOR or MIT, except due to silly overreactions such as turning off all of MIT’s JSTOR access due to downloads from a pretty easily identified user agent.”

  10. emptywheel says:

    @Saul Tannenbaum: Oh, yeah, that’s what I was talking about.

    But there are people they point to in pictures who remain unidentified, right?

    Also, when they stop asking questions–after the Jacob Appelbaum question–they may have stopped to avoid identifying anyone else who hadn’t yet been identified as a target of the investigation. Every named up to that point had already been publicly named, I think.

  11. pdaly says:

    @Saul Tannenbaum:

    I understand that it is against the law for lawyers or grand jury members to discuss publicly what was said in the grand jury chamber, but I guess it is not illegal for the witness to do so.

    Still, I’m surprised that no one ordered him to stop taking notes and that no one ordered his notes to be confiscated. Brave of House, indeed. I wonder if his taking notes cut short the questions he otherwise would have heard (and transcribed).

  12. Saul Tannenbaum says:

    @pdaly: If you happen to be using a computer system that has a command line (Linux, or, say, a Mac using Terminal), a “bash history” is the list of commands you type.

    Stamos is also right in saying that MIT/JSTOR interrupted their own service. But what they did in response to the downloads is standard practice. They, and the downloader who turned out to be Swartz, played a game of cat and mouse, and each time Swartz evaded what they did the last time, JSTOR escalated and responded more strongly. You can read JSTOR’s cutting off of all MIT as JSTOR saying to the MIT network admins: “Hey, assholes, take this seriously, find this guy and shut down the downloading now!”. As I’ve said elsewhere, I’ve been in the same shoes as the MIT network admins and this pretty standard vendor behavior to get your attention. And, from JSTOR’s perspective, they have cause. This downloading had been going on for months, and MIT hadn’t found and stopped it.

    That being said, Stamos’s general take conforms to mine: This wasn’t an incident of criminal hacking or network compromise, it was rogue downloading. And MIT treated it that way until they found a laptop some place it didn’t belong. Then they called the cops.

  13. pdaly says:

    @Saul Tannenbaum:
    Thanks.

    When Stamos writes that Swartz had not encrypted his computer does this imply that when MIT authorities and Secret Service agents inspected the netbook in the MIT closet that they could have obtained more information than what has been publicly mentioned? That they could have seen more than a log on screen?

  14. Ben Franklin says:

    @emptywheel:

    Swatzs’ attys were denying an offer of reduced sentence, until Ortiz came out with the 6 months, as I recall.

    Now that it is out, I think it is not a wild adventure to think, that it was based on a deal, not the heat DOJ was feeling. Being of sound conscience, but hobbled by depression, Aaron may have seen suicide as the only way out of a commitment. Becoming a CI, or Witness for the Prosecution may have been too much for him. This sort of legal usury and extortion happens every day, sadly.

  15. pdaly says:

    @pdaly:

    Upon reading Swartz’s May 8, 2012 Motion for Discovery, however, I realize that any government attempt or success in obtaining information without a warrant would be illegal. Swartz’s team states:

    “The government has provided Swartz with the February, 2011, search warrant authorizing the search of an ACER laptop alleged to have been used by Swartz in relation to the events which are the subject of the indictment in this case. However, Swartz has information indicating that the government attempted to gain access to the contents of the laptop and/or to modify the condition of the ACER laptop on January 6, 2011, the date of its seizure, and possibly at other times prior to the execution of the search warrant. Moving a mouse or touching a key on a computer which reveals information that was not in plain view constitutes a search which may not be lawfully conducted under the Fourth Amendment in the absence of a valid warrant.”

    [my bold]
    http://www.emptywheel.net/wp-content/uploads/2013/01/gov.uscourts.mad_.137971.40.0.pdf

  16. Saul Tannenbaum says:

    @pdaly: My reading of what went on is that, when they looked at the netbook in the wiring closet, they didn’t want to interrupt what it was doing, which might have tipped Swartz off that he’d been discovered. They were counting on whoever it was to come back so they could get video evidence.

    However, after they took the netbook into evidence, the lack of encryption meant that they could get everything that was on the netbook.

  17. Saul Tannenbaum says:

    @emptywheel: Right. But House is being questioned months after Swartz’s arrest, they have a documented connection between them, asking about him isn’t going to reveal much of anything.

    I think this might establish an outer bound on how extensive the fishing expedition was, not anything more than that.

  18. emptywheel says:

    @Saul Tannenbaum: Sure, but the documented connection is not an operational one wrt WL (though it is admittedly one about WL).

    But they may not have wanted to give notice of that FOIA. And they may not have wanted to tip that they were investigating Swartz for any times to WL. That’s the way they were with secrecy. Plus, we don’t know what the very next question might have been–and they were talking about specific individuals–before they decided letting House document precisely what they were investigating would be counterproductive.

    Also, I didn’t say it upthread, but I agree with all those who are saying what he did took a great deal of courage.

  19. phred says:

    @Ben Franklin: Right, but if that was the case, wouldn’t Swartz’ attorney(s) be able to tell us that?

    I still don’t understand why the story from the Swartz camp was 35 years and felony convictions, then Ortiz comes out with 6 months. Something is being left out here.

  20. Saul Tannenbaum says:

    I read one news report (which I cannot find again) that said that the terms of any plea deal included probation, during which time Swartz would not be allowed to use a computer or the Internet. If that was true, that alone would be enough to make Swartz very, very desparate.

  21. Ben Franklin says:

    @phred:

    “Right, but if that was the case, wouldn’t Swartz’ attorney(s) be able to tell us that?”

    We can only speculate, but the situation seemed fluid. In Sept a plea offer was made by Aaron’s counsel, and was flat rejected; Plead guilty on all counts with jail time, was the reply. After Ortiz went public with the offer of 6 mos, defense atty concurred. Why the denial previously ? Perhaps he was applying pressure, or he was threatened. After what happened to the young man, I wouldn’t put anything past these people.

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