DOJ Used the Open Access Guerilla Manifesto to Do More than Justify Prosecution, They Justified a Search of Aaron Swartz’ Home

Yesterday, the HuffPo caught up to reporting I did in January, reporting that DOJ used Aaron Swartz’ 2008  Guerilla Open Access Manifesto to justify their investigation of him.

A Justice Department representative told congressional staffers during a recentbriefing on the computer fraud prosecution of Internet activist Aaron Swartz that Swartz’s “Guerilla Open Access Manifesto” played a role in the prosecution, sources told The Huffington Post.

[snip]

The “Manifesto,” Justice Department representatives told congressional staffers, demonstrated Swartz’s malicious intent in downloading documents on a massive scale.

[snip]

Reich told congressional staffers that the Justice Department believed federal prosecutors acted in a reasonable manner, according to the sources. He also made clear that prosecutors were in part influenced by wanting to deter others from committing similar offenses.

When considering punishment, courts are supposed to impose an “adequate deterrence to criminal conduct” under federal statute. Swartz’s “Manifesto,” prosecutors said they believed, made clear that he intended to share the academic articles widely.

But there’s something the HuffPo is still missing.

Not only does the Guerilla Manifesto advocate doing a lot of things that may well be legal — the biggest exception is the one most applicable, downloading scientific journals and upload them to file sharing networks…

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.

But it’s the way the government used Swartz’ manifesto legally. They used it, as far as I’ve found, primarily to justify HOW they investigated Swartz.

They used it in a brief rebutting his effort to suppress a number of searches they had done in the investigation.

And that’s significant because of an oddity in the investigation. The government, at first, wasn’t all that quick to investigate Swartz. The let the actual evidence of the alleged crime just sit for weeks and weeks. And when they finally got around to looking into that stuff, they started with Swartz’ house, not with the hardware that offered the best evidence of a crime.

He was arrested very quietly on January 6; I suspect the reason few people knew about it was because no one expected it to amount to anything.

And for a while, it didn’t.

The Secret Service officer on the case, Michael Pickett, raised the issue of warrants on January 7–the day after Swartz was arrested. But the government didn’t get around to actually getting warrants to search this hardware until February 9, over a month later.

Here’s the warrant and supporting affidavit ultimately used for the hardware (except his phone, which was also seized).

But as this defense motion makes clear, there was a further delay after that first February 9 warrant. The Secret Service let the February 9 warrants for the hardware expire, and had to get new warrants on February 24.

Here, there was a 34-day delay in obtaining the February 9, 2011, warrant, which remained unexecuted, and a total of a 49-day delay until the obtaining of the February 24, 2011, warrant pursuant to which the items were ultimately searched.

[snip]

On the other side of the balance, defendant knows of no conceivable reason which could justify a delay of this magnitude.

And while it’s not central to this post, in the motion Swartz’ lawyer cited a slew of Circuit Court opinions (though none from the First Circuit) throwing out searches on computers after this kind of delay.

In other words, after getting control of this investigation, Secret Service largely let it slide, potentially fatally so for any prosecution.

Which is why it’s interesting that, when the Secret Service finally summoned the energy (or got the okay from AUSA Stephen Heymann) to start this investigation, it was more interested in investigating Swartz’ home than in investigating his hardware–the stuff that directly tied to the crime purportedly in question.

This motion describes what happened with the investigation of Swartz’ home and then–after they didn’t find what they were looking for there–his Harvard office. Secret Service got the warrant to search Swartz’ house, which they executed on February 11.

On February 9, 2011, Secret Service S/A Michael Pickett submitted an affidavit in support of an application for a warrant to search Swartz’s home at 950 Massachusetts Avenue, Apt. 320, Cambridge, Massachusetts. Exhibit 34. A warrant authorizing the search was issued the same day. Exhibit 35. The search warrant was executed on February 11, 2011.

The affidavit was based on somewhat flimsy stuff–including a tweet Swartz had sent 30 days before the warrant application from a Mac, which apparently supported the Secret Service’s suspicion that Swartz had a Mac at his home.

The affidavit also mentioned that neither the “ghost macbook” associated with the JSTOR downloading or the external hard drive which had been observed attached to the ACER laptop on January 4, 2011, had yet been recovered. Id. The affidavit further stated that on January 10, 2011, Swartz “broadcast a message via Twitter for Mac.”

After searching Swartz’ house, they decided they needed to search his office.

On February 11, 2011, Secret Service S/A Brett Seidel submitted an affidavit in support of an application for a warrant to search Swartz’s office at 124 Mount Auburn Street, Office 504, Cambridge, Massachusetts, the case-specific averments of which were virtually entirely derived from observations made by law enforcement officers during the search of Swartz’s home and statements made by Swartz which were a direct product of that search. Exhibit 36. The warrant was issued and executed the same day. Exhibit 37.

And while I actually think the warrants for the home search would not have been thrown out (because after all, the Magistrate had approved them), I do think the motion makes a decent case that Secret Service provided no particularly compelling reason to tie Swartz’ apartment–and from there his office–to the crime they were purportedly investigating him for, downloading a bunch of JSTOR documents onto a computer they had in their possession but were letting sit.

What the government effectively did with Swartz’ Guerilla Manifesto, at least in that brief, was use it to justify the way they had investigated him, including this bizarre 6 week delay, prioritizing investigating his house before actually investigating the hardware that served as best evidence of any crime.

While they didn’t say so in as many words, the brief the government submitted — arguing that this delay shouldn’t result in suppression of the evidence collected in this odd investigation — basically says the Manifesto makes the delay okay.

That is, an investigative approach that might otherwise result in the best evidence be thrown out was okay, the government argued, because Swartz wrote a document advocating for the largely legal but nevertheless incriminating, it claimed, sharing of information.

Threat Level reveals the government went so far as subpoenaing various versions of the manifesto from Internet Archive.

His attorney, Elliot Peters, said prosecutors were “very focused” on the manifesto Swartz penned from Italy.

“They were very focused on it, and appeared to be planning to use it as evidence of Aaron’s intent to take the JSTOR material and somehow post it online to make it available for all,” Peters told Wired on Friday. “They had spent a lot of energy investigating that document — who wrote it, whether it conveyed Aaron’s point of view, etc.”

The government, Peters said, “had also subpoenaed various versions of the document from the Internet Archive,” Peters said.

This was part of the fishing expeditions Swartz’ lawyer was trying to win discovery on back in 2012.

DOJ told Congress it believed the Manifesto would prove motive — that Swartz planned to share the journals widely. But that only underscores that had he used them for his own purposes — to collect data on who funded what studies and what kind of results they produced, as he had in the past — they would have had a hard time claiming this was a crime at all.

It appears that, only by researching the Manifesto, a First Amendment protected publication that largely espoused legal information sharing, did the government even get around to treating this as a crime.

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.

28 replies
  1. orionATL says:

    from the preceeding post (john you….):

    “…Some of the advisers to President George W. Bush, including Vice President Dick Cheney, argued that a president had the power to use the military on domestic soil to sweep up the terrorism suspects, who came to be known as the Lackawanna Six, and declare them enemy combatants…”

    question:

    what do the lackawannah six, anwar al-awlaki, julian assange, and aaron swartz ha e in common?

    answer:

    they have all been determined to be guilty of some unnacceptable – to an american presidential executive – conduct, whereupon, the executive’s department of justice is told to find a law(s) to fit the crime.

    put another way, the existing body of law is plundered to find a plausible law to justify imprisoning or executing that individual.

    presidential justice in 21st century america:

    we determine who needs legal discipline and then we find a law to ensure that that discipline is either applied by the court to the individual citizen or that the federal courts recuse themselves from the case allowing us to unilaterally impose our chosen discipline on that citizen.

  2. hester says:

    Yesterday I listed to Larry Lessig’s tribute to Aaron. Here: http://m.youtube.com/watch?v=9HAw1i4gOU4#watch_actions
    It is very long (> 1 hour, if you want to watch, start @ minute 8:50 to avoid intro) and very interesting and touches on the OAGM.

    Towards the end Lessig notes an email he received from a German film maker who was friends with both Lessig and Swartz. It’s in part this:

    “He was a victim of a strangely fascistic spirit that had developed in America over the past decade or so.
    Die Andersdenkenden are being destroyed without mercy as though mercy were a sign of weakness.”

    Die Andersdenkenden can be translated as “those who think differently”. (Anders= other, denken=to think, the addition of “den” to think converts it into a noun)

  3. greengiant says:

    JSTOR charges up the ying yang, and in no way could a massive download of JSTOR be considered fair use. Some University library users probably have the ability to access JSTOR without charge, which is why Swartz was using a library network.

  4. Joanne says:

    I apologize for this question, which I am certain was answered early on, but why was the secret service involved in this?

  5. pdaly says:

    @hester:
    Hester, your link was not active for me.
    Here is a youtube link http://www.youtube.com/watch?v=9HAw1i4gOU4 to the same Harvard Law School lecture by Lessig.

    At time 50:00 Lessig reviews 4 possible reasons Swartz downloaded JSTOR articles.
    Lessig states one is the correct one but he learned it while representing Swartz so he won’t point it out directly. Neverthless Lessig eliminates 2 of the possibilities.

    Lessig also mentions Swartz’ guerilla manifesto at 44:00. At 44:35 Lessig states that Swartz learns (this is two years after writing the Manifesto) while attending a conference in Budapest that JSTOR was asked how much would we have to be pay to make JSTOR’s journal articles available to the whole world. $250 million was JSTOR’s reported answer. Lessig suggests after hearing this Swartz begin his work that ‘brought him into the cross hairs of the government.’

  6. pdaly says:

    @Joanne:

    The question has been asked before. Not sure if we have the answer yet.
    MIT has not fully explained how the Secret Service became involved. It may be due to MIT’s connection with government programs that have national security implications. However, top secret military research I assume would be protected from an unlocked computer network closet.
    http://www.emptywheel.net/2013/01/13/two-days-before-cambridge-cops-arrested-aaron-swartz-secret-service-took-over-the-investigation/

  7. orionATL says:

    @Joanne:

    the answer was teased out over a number of ew’s, posts on the swartz matter. go back to the period here just after swartz’s death and read posts for a week or so.

    the simple answer seems to be that secret service personnel were available locally to the univ/local police and thus came to be involved more or less as a consequence of the bureaucracies interacting with each other – univ and law enforcement bureaucracies. that involvement stemmed from ss’s mandate to deal with computer fraud and does not appear as potentially malign now as it did then.

  8. hester says:

    @ Joanne:
    here’s the link: http://www.secretservice.gov/ectf.shtml

    “On October 26, 2001, President Bush signed into law H.R. 3162, the USA PATRIOT Act. The U.S. Secret Service was mandated by this Act to establish a nationwide network of Electronic Crimes Task Forces (ECTFs). The concept of the ECTF network is to bring together not only federal, state and local law enforcement, but also prosecutors, private industry and academia. The common purpose is the prevention, detection, mitigation and aggressive investigation of attacks on the nation’s financial and critical infrastructures.

    The Secret Service’s ECTF and Electronic Crimes Working Group initiatives prioritize investigative cases that involve electronic crimes. These initiatives provide necessary support and resources to field investigations that meet any one of the following criteria:

    Significant economic or community impact
    Participation of organized criminal groups involving multiple districts or transnational organizations
    Use of schemes involving new technology”

  9. bell says:

    @orionATL: “the executive’s department of justice is told to find a law(s) to fit the crime.”

    that is how i perceive things as well orion.. with so many laws, it doesn’t seem all that improbable that one will be found to suit the need of the government either.. 9-11/(idiotic act) stage 2, or 3 or where ever we are on the sliding slope..

  10. emptywheel says:

    @Joanne: Secret Service does have jurisdiction over some computer crimes. it’s not entirely clear that this should have qualified. But on top of that, the Boston USA tends to prefer to work w/USSS because of distrust of FBI because the Whitey Bulger and related issues.

    So it may be nothing, or it may be.

  11. pdaly says:

    “Predictive policing” seems to be the new buzzword for stalking precrime:
    http://www.myfoxboston.com/story/21237083/2013/02/18/burlington-police-dept-employs-breaking-technique-in-policing#.USLvzic_tc8.email

    It appears it was this same type of police unit at the Cambridge Police Department which was involved in MIT and Swartz. The narrative part of the Cambridge Police arrest/incident report begins with the line “CAU MM – from MIT file”

    “CAU” stands for “Crime Analysis Unit” of which “Meghan McKenney” (“MM”?) is a member.
    Meghan McKenney’s name is the “Approving Officer” on the 1/6/11 Cambridge Police Department incident report filed 1/13/11.

    http://www.cambridgema.gov/cpd/policeunits/supportservicesdivision/crimeanalysisunit.aspx

  12. pdaly says:

    I wonder if Homeland Security or Secret Service provide support for the software the police departments are employing in their pre-crime units. In exchange the crime data is nationalized/centralized?

    As Saul mentioned on a prior thread and as OrionATL mentioned above, the Cambridge Police Dept and the MIT Police were likely on friendly basis with Secret Service. Once Secret Service took over the case, however, they (CPD, MIT police) might be considered ‘agents’ acting on behalf of the federal government, no?

  13. Frank33 says:

    @orionATL:

    the existing body of law is plundered to find a plausible law to justify imprisoning or executing that individual.

    Here is another episode of “Bringing the wars Home” #3495, and consolidating the neo-con police state.

    Rapper MC Hammer was arrested in his car at a Mall. His crime, actually the local police are still tryimg to decide what his crime was. Hammer promises to make this abuse of police authority a “teachable moment”.

    Hammer began his tweets Saturday with “chubby elvis looking dude was tapping on my car window, I rolled down the window and he said ‘Are you on parole or probation?'”

    “While I was handing him my ID he reached in my car and tried to pull me out the car but forgot he was on a steady donut diet,” Hammer continued. “It was comical to me until he pulled out his guns, blew his whistle and yelled for help (MallCop) !!! But make no mistake he’s dangerous.”

    Hammer, 50, was booked and released on bail from Santa Rita Jail, Walters said. A court date is next month, and police have until that time to decide on any charges.

  14. P J Evans says:

    @Frank33:
    Apparently the Dublin police don’t approve of non-whites in their territory, especially if they’re in an expensive car.
    (They’re now claiming that the car had expired tags and wasn’t registered to him. I’m sure this justifies arresting him. Not.)

  15. Frank33 says:

    @P J Evans:
    And it gets weirder. Apparently, merely being arrested deprives you of all and any protections. The Storm Troopers can physically invade your body. Hammer tweets.

    MC HAMMER [email protected]

    My biggest concern ? What was it that they injected into my arm under the guise of a “Skin Test“? #SantaRita #Tuskegee

    17 hrs MC HAMMER MC HAMMER [email protected]

    Disappointment? I was on my way to San Quentin Friday morning to congratulate a group of inmates in “The Last Mile” pic.twitter.com/tOvuLquhMv

  16. hester says:

    @ Susan: about 21-22 years, some time after he downloaded the PACER stuff. It was Sept 4-20, 2008 when he downloaded the files. Shortly thereafter he became a “person of interest” to the FBI.

  17. thatvisionthing says:

    @hester: See sevysmith comment 1/15/13: http://www.emptywheel.net/2013/01/13/two-days-before-cambridge-cops-arrested-aaron-swartz-secret-service-took-over-the-investigation/#comment-501419

    Probably anything with a computer counts as new technology. Confirmed by googling the Secret Service agent, he was a speaker at secureworld 2010 and gave a brief summary of his role.

    He is “assigned to the New England Electronic Crimes Task Force/Computer Crimes Section responsible for working with Federal, State and local law enforcement agencies to investigate violations of Federal and State law in regards to bank fraud, credit card fraud, identity theft and electronic crimes, as well as provide computer forensics support to investigations. ”

    And my reply:

    Are you shitting me?

    responsible for working with Federal, State and local law enforcement agencies to investigate violations of Federal and State law in regards to bank fraud,

    He’s assigned in New England for God’s sake, and Aaron Swartz is who he goes after?

    Seriously, who makes the assignments?

  18. thatvisionthing says:

    @thatvisionthing:

    Wait, who’s guarding America?

    Huffington Post, 2/14/13: Financial Crisis Cost Tops $22 Trillion, GAO Says
    http://www.huffingtonpost.com/2013/02/14/financial-crisis-cost-gao_n_2687553.html

    Oh, wait:

    Daily Mail, 6/16/12: Jamie Dimon Wears Presidential Cufflinks To Senate Bank Hearing: http://www.dailymail.co.uk/news/article-2160340/JPMorgan-Chase-CEO-Jamie-Dimon-wear-presidential-cufflinks-prompting-speculation-gift-Obama.html

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