Quinn Norton’s Testimony

The docket of Aaron Swartz’ prosecution made it clear that Quinn Norton, Swartz’ ex-girlfriend, testified with immunity. It also made it clear that someone — or some people — handed over communications, including LISTSERVs, to DOJ. [See update]

In the Atlantic, she provides her side of the story. While it includes a range of useful details, the most significant revelation is that — she believes — she was the first to alert Prosecutor Stephen Heymann to the Guerilla Open Manifesto.

Steve asked if there was anything I knew of to suggest why Aaron would do this, or what he thought about academic journals. I cast around trying to think of something, something that made sense to them, when Aaron had just gathered these datasets for years, the way some people collect coins or cards or stamps.

I mentioned a blog post. It was a two-year-old public post on Raw Thought, Aaron’s blog. It had been fairly widely picked up by other blogs. I couldn’t imagine that these people who had just claimed to have read everything I’d ever written had never looked at their target’s blog, which appeared in his FBI file, or searched for what he thought about “open access” They hadn’t.

So this is where I was profoundly foolish. I told them about the Guerrilla Open Access Manifesto. And in doing so, Aaron would explain to me later (and reporters would confirm), I made everything worse. This is what I must live with.

I opened up a new front for their cruelty. Four months into the investigation, they had finally found their reason to do it. The manifesto, the prosecutors claimed, showed Aaron’s intent to distribute the JSTOR documents widely. And I had told them about it. It was beyond my understanding that these people could pick through his life, threaten his friends, tear through our digital history together, raid his house, surveil him, and never actually read his blog. But that seemed to be the fact of it.

I’ll come back to this Manifesto; I think people keep forgetting that almost all of what it espouses is legal. That while the government treated it as a Rosetta Stone, it didn’t do all they claimed it did.

But before I do that, consider the terms of Norton’s testimony. She was first interviewed without counsel, then served a subpoena, in San Francisco.

They said they were from the Secret Service and that they wanted to ask me a few questions. Shocked and unsure of myself, I let them in to talk to me. One should never, ever do this.

They asked about Aaron, I told them I didn’t know anything. They pointed out that he’d called me, and asked what he told me. I told them I hadn’t asked anything about his arrest, and they were incredulous.

Eventually I ran out of things to tell them, and they produced the real reason for their visit: a subpoena.

At this point, Norton would have been locked into the testimony she gave the Secret Service — including her claim that when Swartz called her to help arrange bail after he was arrested, he didn’t tell her why he had been arrested — or risk false statement charges. (I’m not saying she didn’t tell the truth, just that interviews without counsel can prove sticky going forward.)

In addition, in the guise of seeking her communications with Swartz, the Feds were getting close to her computer, with all her reporting on it.

As strange as it seems now, when I was first subpoenaed, Aaron was more worried about me than him, and both of us were worried about Ada, my seven-year-old daughter. She was the light of both of our lives, and we wanted to make sure none of this would touch her. The problem was my computer. It contained interviews and communications with confidential sources for stories going back five years. The subpoena didn’t actually call for my computer, but materials on my computer. Jose and Adam implied that if the prosecutor didn’t think I was being honest, he might move against me, seize things.

And if the prosecutor took my computer, I would have to go to jail rather than turn over my password.

Norton had been reporting on a range of hacker culture, including Anonymous and WikiLeaks. So while the subpoena only mentioned CFAA and wire fraud violations (see page 4), I can see why she — and the lawyers she first got, who didn’t challenge the subpoena as a violation of DOJ’s rules on subpoenaing journalists — might have been worried. I can see why Swartz would have been worried: by going after Norton, DOJ was going after someone who might have real evidence on the other more serious crimes they were trying to investigate. And by going after her, they may well have been trying to tie Swartz, by association, to that blacker hat hacker culture.

They eventually talked her into taking an immunity deal.

They told me Steve wanted to meet me, and they wanted me to meet him. They wanted to set up something called a proffer — a kind of chat with the prosecution. Steve offered me a “Queen for a day” letter, granting me immunity so that the government couldn’t use anything I said during the session against me in a criminal prosecution.

[snip]

I was outraged and disturbed. I didn’t want a deal, I didn’t want immunity, I just wanted to sit down and talk about the whole terrible business, to tell them why this case wasn’t worth their time, and Aaron didn’t deserve their attention. I didn’t need a deal, and in fact, given that I had nothing to offer the government’s case, I didn’t think I even qualified for it.

I asked my lawyers to refuse, and we fought about it, repeatedly. They brought up things from my past that could be used against me; not criminal behavior per se, even they admitted, but they wanted me to have immunity. I had a terrible headache, and eventually gave in.

And in fact, that appears to have been how Heymann looked at Norton. In the proffer session, they described Norton as “being connected to hackers.”

They said I must have known something because I was connected with hackers. They knew this, they told me, because they’d read everything I’d ever written online.

This, then, is the background to why she testified. She was a broke single mother, relying on pro bono lawyers who had probably been warned about Norton’s purported ties with hackers, under a tremendous amount of stress.

I’ve long noted that Swartz’ story, awful as it is, is in some ways far better than what most people experience with prosecution, because he had the financial wherewithal, at least at first, to fight back. Norton did not.

One thing that’s not clear is what would have happened if these first lawyers had complained about what amounted to a very broad subpoena to a journalist.

I found out it was DOJ policy to subpoena journalists last, yet I had been subpoenaed first. Jose didn’t seem to know that the journalist rules might apply to my hard drive, despite being a former federal prosecutor.

Norton started to pursue these questions only after she had gotten new counsel. It’s not clear it would have made any difference. Aside from the fact that they were demanding stuff partly outside of her journalistic work (the LISTSERVs presumably would overlap her personal relationship with Swartz and her work), by the end of the year DOJ would formalize a policy that offered freelance journalists and bloggers almost zero protection as journalists. Norton didn’t have — and still doesn’t — the institutional affiliation and the  million dollars to fight a subpoena that association with the NYT would have brought.

I am, however, curious whether her first lawyers discussed this, because it’s pretty clear DOJ doesn’t believe any journalist with ties to hacker culture, as Norton has, counts as a journalist. It would have been nice to test that belief legally.

Also note: the very first thing the subpoena asked for was any computers Swartz may have given Norton.

All computers, hard drives, USB drives, DVDs, CDs and other electronic and optical Storage devices currently or previously owned 0r possessed by Aaron Swartz at any time from  September l, 2010 to the present. These shall include, without limitation, all computers and hard drives transferred to you by Aaron Swartz, loaned by you to Aaron Swartz, loaned to you by Aaron Swartz, or stored by or on behalf of Aaron Swartz at any premises over which you have custody or control.

Remember, by that point of the investigation (and to this day, as far as I’ve been able to tell from the public record), DOJ had not found the Macintosh Swartz had used remotely in some of the earlier downloads. I’ve long assumed that Mac was one of Swartz’ personal computers, with a mix of JSTOR files and his personal business (including, just as an example, records from Demand Progress and the SOPA/PIPA fight), though for all we know it could have been someone else’s computer. It appears they believed Norton might have that computer.

So rather than call his lawyer after getting arrested, Swartz called his girlfriend, who just happened to have extensive professional ties to the hackers DOJ would love to nail. The fact that he used his one call to call her made DOJ believe that she could verify Swartz’ motive. And they clearly suspected he had given her the Mac that might tie the JSTOR downloads to larger issues.

I’m still not convinced the focus on the Manifesto is evidence of anything so much as DOJ’s criminalization of open source culture. It incriminates DOJ more than it ever did Swartz.

But (presumably though not definitely in addition to personal communications), that’s what they got by hammering on someone far more vulnerable than Swartz.

Update: Via Twitter, Norton says she did not turn over any LISTSERV material. Someone else must have.

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.

11 replies
  1. edge says:

    “They brought up things from my past that could be used against me; not criminal behavior per se, even they admitted, but they wanted me to have immunity. I had a terrible headache, and eventually gave in.”

    Remember this next time we talk about government data gathering. You don’t need to commit crimes for government data gathering to be a problem for you. Even embarrassing things in the past can be used by them to blackmail you into cooperation.

  2. Arbed says:

    Hello Marcy,

    Can I ask for your thoughts please on the document below, and particularly on what is meant by “pleadings” exactly? It concerns a different Grand Jury case (although, possibly, tangentially related to Aaron Swartz’ case) – the Wikileaks one:

    A DFAT document recently released under FOI laws in Australia seems to confirm the existence of the infamous sealed indictment/s for Assange and Wikileaks. It depends what exactly the word “pleadings” means in the context of a Grand Jury. Anyway, there’s six of them, they’ve existed since at least November 2011 and the document in question confirms:

    “just cause for the continued sealing of the documents at issue because, for the reasons stated in the memorandum of the United States, unsealing of the documents at this time would damage an ongoing criminal investigation”

    The 26-page document (pdf) is linked in this article and the section about the sealed “pleadings” is on pages 10/11 of it:

    http://darkernet.in/aussie-fm-lied-on-tv-show-re-wikileaks-grand-jury-proof/

    Actually, here’s the pdf itself:

    http://darkernet.in/wp-content/uploads/2013/03/dfat-foi-1212-F4791.pdf

  3. emptywheel says:

    @Arbed: Aren’t they to the orders getting Twitter data on Jacob Appelbaum et al. They had been asking for the orders (sort of like warrants), but lost their case, so the justification behind it will remain secret.

  4. Arbed says:

    @emptywheel: Not sure they are the same. AFAIK, the 2703d orders for private user data are for three people – Jacob Appelbaum, Birgitta Jonsdottir and Ron Gongripp – so, as there are six “pleadings” here, does that mean two each? Or Twitter plus Google? I honestly don’t know. I believe Alexa O’Brien has all the dockets relating to 2703d orders in the Wikileaks investigation on her site, so as the “pleadings” here have reference numbers perhaps they can be matched to what is known on the dockets and eliminated that way?

    UPDATE: Ah, I see you’re right – the 10 November 2011 date is when the motion to unseal the Twitter subpoenas was heard.

    So… that means the sealed indictment for Assange is under paragraph s 22 1(a)(ii) on the previous page – the one with the bloody great X through it and ‘REDACTED’ written across the whole page…

  5. gmoke says:

    Swartz’s involvement in releasing PACER information was conflated with the JSTOR arrest on Emily Rooney’s “Greater Boston.” I suspect it was also part of the animus against Swartz by the Feds, even though no laws seem to have been broken. The public confusion over the differences between these two copyright issues and the law is one reason why the government can get away with railroading people (and the media can turn its usual blind eye).

  6. emptywheel says:

    @Arbed: I don’t think there’s a sealed indictment.

    The govt doesn’t want to present any info that is not Title III to a GJ. Which means they wouldn’t have started to present this to a jury until they got the Twitter stuff (I think the Twitter is a ploy to hide having used other means, possibly ALSO twitter but collected under PATRIOT) to present.

    So they may be working on one, but may not have it yet.

    And all that’s assuming they’ve got a theory that will work. I think Manning’s plea hurts their chances there, bc he’s not going to testify to being ordered to turn over stuff.

  7. AudioKinetic says:

    @edge: “Remember this next time we talk about government data gathering. You don’t need to commit crimes for government data gathering to be a problem for you. Even embarrassing things in the past can be used by them to blackmail you into cooperation.”

    THIS can’t be emphasized enough. Whenever I’m in persuasion-mode with conflicted liberals (or others), this is what I stress. We’re all — ALL of us — vulnerable.

  8. bmaz says:

    @Arbed: There is no competent evidence whatsoever for the existence of a “sealed indictment”. Nor, for that matter, any particular reason to believe there will be one. To indict WikiLeaks and/or Assange would beg the same be done to the New York Times, Guardian and McCaltchy. It is not going to happen, it is a myth.

  9. pdaly says:

    I am not sure I understand why Swartz would be upset that Norton mentioned the online manifesto to the prosecutor.

    Aside from Swartz’s comment to Norton that prosecutors are not as smart as journalists who could find it online, Swartz in a different venue helps a visiting journalist search the web of public information. From http://heatherbrooke.org/2013/a-few-thoughts-on-the-death-of-hacktivist-aaron-swartz/

    “Fortunately his [Swartz’] immediate interest is my ‘quest’, so he grabs a nearby laptop to see what he can find online. A quick glance of Tyler Watkins’ and David House’s social networks reveals they’re both linked to someone called Danny Clark. It’s a long shot, but I ask Mako if he knows Danny Clark. His response is straightforward enough: ‘Never heard of him.’

    ‘But he’s on your list of LinkedIn contacts,’ says Aaron, now perusing Mako’s profile, and I remind Mako there’s no privacy on the Internet.

    He [Mako] reiterates that he’s ‘not involved in any of this, and I don’t want anything to do with it’.

    ‘What’s wrong with answering her questions?’ Aaron counters.

    ‘You don’t understand, there’s been all kinds of people round here.’

    ‘I understand completely. I was investigated by the FBI, don’t forget. That doesn’t mean you can’t talk. We’re not in a police state yet.’

  10. Denis says:

    “THERE WAS WHAT happened with Quinn, which I think had to be very devastating to him. Quinn got her own attorney, who told her to coöperate with the prosecutor. There are interviews which I’ve now read with the Secret Service where they say she coöperated fully with them ; she signed a proffer saying that she would tell them everything she knew in return for immunity. And we were going out of our minds. We were trying to tell her to stop, and she wouldn’t. Her attorney was a former federal prosecutor, and that’s what he recommended. But, to me, I—I don’t know. To me, that’s not an acceptable answer. She described her grand-jury testimony as being (which it was) largely not helpful to the prosecutor. But her betrayal of Aaron, in my mind, had to be devastating—was, was really quite something, even though she came around and Aaron said—you know, Aaron defended her.” Robert Swartz to the New Yorker (Requiem for a dream, p.9)
    http://www.newyorker.com/reporting/2013/03/11/130311fa_fact_macfarquhar?currentPage=9

    “even though she came around and Aaron said—you know, Aaron defended her.” Ada.
    Of course this corresponds with that Norton said. But the chronology is not exactly the same since Norton testimony till Robert Swartz.

    And I think that you cannot say : “I’ve long noted that Swartz’ story, awful as it is, is in some ways far better than what most people experience with prosecution, because he had the financial wherewithal, at least at first, to fight back. Norton did not.” Look at the real facts. There was not enough anyway. You cannot arrange with that. Imagine Eu resistance against nazis with such arguing to make justified ratters in between them facing a danger. Red Orchestra in Berlin –enve communists– they were high bourgeois. Jean Moulin (the French) was a bourgeois. Resistance counted the same proportion of workers, students, bourgeois, and some high bourgeois. Facing responsability they were equal and they died without having been ratters.
    Has Swartz be a ratter of others –even him? No. And he died because his life has been finished by others. Mostly of real involvments were Norton’s. The less she could do was to be proud in matter of defense and keep her rights with a good lawyer who would not be a former fed prosecutor. No? But that would comme from her not from Swartz to ask her.

    My idea (may be a fiction) is something of secret service emerging through their common life since a long while (Ereno). Secret services infests a lot of charity organizations (sometimes honnest people must make reports on events to the foreigner services of their country) and a part of international reporters, so imagine international reporters on hackers at the moment there is a war for the web: at least they are tracked. It makes sense. Probably for getting information and maintain the chain: they know how play about the past and with people’s weaknesses. And without doubt: mostly in theses chains are so much enclosed by the pressure or blackmail that they cannot do otherwise than to service. Anyway just make reports of the events. But. And since a long while. Mole and/or moles. Cultural cops inside.

    ‘Aaron Swartz was killed. Killed because he faced an impossible choice. Killed because he was forced into playing a game he could not win — a twisted and distorted perversion of justice — a game where the only winning move was not to play. ~ Anonymous”.

    https://en.wikiquote.org/wiki/Aaron_Swartz

    sorry for my syntax and my inappropriate words in english…

  11. Catherine Fitzpatrick says:

    Quinn Norton’s story has a number of inconsistencies.

    She advances the claim that the Guerilla Manifesto had four authors, or that maybe it wasn’t really authored by Swartz even though his name is signed on it in the Internet Archives version — all in an effort to exonerate her boyfriend.

    But EIFL, the group that hosted the retreat in Eremo, put up a memorial statement immediately after his death that said this:

    http://www.eifl.net/news/tribute-aaron-swartz

    “Aaron penned the Guerilla Open Access Manifesto while at the Eremo.”

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