Who Turned over the Google Group Conversations Involving Aaron Swartz?

The legal documents on the investigation into Aaron Swartz show three signs of witnesses cooperating with the prosecution.

Most of the public attention has focused on this detail, which in September 2011 publicly indicated Quinn Norton had been provided immunity to testify before the grand jury.

Promises, rewards, or inducements have been given to witness Erin Quinn Norton. Copies of the letter agreement with her and order of immunity with respect to her grand jury testimony are enclosed on Disk 3.

Norton’s account of her testimony is here.

That same motion to compel discovery reveals that an MIT student IDed Swartz in a photo lineup.

Defendant Aaron Swartz was a subject of an investigative identification procedure used with a witness the government anticipates calling in its case-in-chief involving a photospread documented by MIT Police Detective Boulter. Relevant portions of the police report of Detective Boulter and a copy of the photospread used in the identification procedure are enclosed on Disk 3. In both instances, the name of the identifying MIT student has been redacted to protect the student’s continuing right to privacy at this initial stage of the case.

There are hints elsewhere that an MIT student gave Swartz some tips on how to get around MIT (someone must have told him about the accessible network closet, after all); I’ve wondered whether this student, or someone else, is who IDed Swartz.

Finally, a discovery motion dating to June 2012 reveals there are personal communications involving him, including both emails and Googlegroup conversations.

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.

And in response to Swartz’ motion for the source of the communications involving him, the government said everything was either turned over willingly or accessed from a public site. It also said it would not turn over the identity of the people who had turned it over because that would identify its witnesses before it had to.

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 previous ly represented to defense counsel, there was no court-authorized electronic surveillance in this case. The government objects to further particularization at this time. First, further particularization would identify witnesses long in advance of the time prescribed by the Local Rules.

Mind you, there’s reason to doubt some of this because Swartz’ lawyer has made it clear the government subpoenaed Internet Archive to find out more details about changes made to the Guerilla Manifesto, suggesting some of the documents came via subpoena.

Now, the subpoena to Norton demanded “Electronic communications with Aaron Swartz between September 1, 2010 and January 15, 2011.” She described that demand this way,

The prosecution wanted my communications with Aaron, anything we’d shared, any time I’d talked about JSTOR or MIT or the case with anyone. It was pages of demands for my digital life with Aaron, the private world we’d shared. There was a grand jury date listed as well: “YOU ARE COMMANDED,” it read.

She describes how, with a new lawyer, she managed to scale back the requests for information.

The date was coming up when I’d have to turn over the information the prosecutors had asked for. My lawyers asked me to come in and let their IT department copy my hard drive. I wasn’t trying to be the perfect client anymore. No one, I reminded them, gets my computer. We fought again over it, things more tense than ever. Jose told me that if I didn’t have a lawyer Steve might just arrest me when he called and said I’d fired them. With Aaron’s help I got a new lawyer, and fired them.

With my new lawyer, I was much more comfortable. I began to research and learn useful things about my case I’d not heard before. I could work to narrow the subpoena, and force Steve to go in front of a judge if he wanted more. 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. When I sought to get Fish and Richardson’s written documentation about the proffer session, particularly the notes Adam had taken during the session, they didn’t provide them. I was angry, but there was nothing I could do.

So it’s clear she tried to protect some of the stuff DOJ had originally subpoenaed.

Update: In the New Yorker she said this:

He was an intensely private person, and they compelled me to hand over our chat logs. The degree to which he hated me the day that I had to hand over our chat logs. . . . It wasn’t my fault, and I tried to—I redacted a lot of stuff, but Steve Heymann got to go through years of our personal life together. I don’t know if he was ever going to be able to forgive me for that. I was the one who turned over our lives to these people.

Most interesting, though, she just made it clear on Twitter that she was not the source of any LISTSERVs (which is what I was using to refer to the Googlegroup conversations, though technically they may not be the same thing).

listserv stuff wasn’t me, fyi

That makes some sense. After all, last June, the government made it clear it intended to protect the identity of the people who had turned over some of that stuff, and they had already given Swartz’ lawyers Norton’s identity.

(Note, elsewhere the discovery documents make it clear one witness against Swartz had a criminal record.)

In addition to Norton’s revelation that the prosecution seemed surprised when she first mentioned the Guerilla Manifesto, that seems to be another significant revelation implicitly included in her article. She’s not the source of whatever Googlegroup conversations the government got. At least according to the government, someone else turned this material over willingly.

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:

    well, one lesson is clear from this. if you are going to engage in “rebellious” acts, either don’t use the internet at all, or use it encrypted and with bit torrent or some such.

    swartz is part of the collateral damage of the obama admin’s obsessive, pointless witchhunt for julian assange and partners.

  2. hester says:

    Thanks for the reporting. I just finished reading The New Yorker piece which is interesting in a wholly different way. Now off to read the Atlantic piece. You do a great job, all the time.

  3. hester says:

    After reading the piece in The Atlantic, Steve Heymann looks like a really frightening guy, Or maybe just in the nature of prosecutors… but 2 young men he was ‘investigating” committed suicide. I wouldn’t want to live with that.

  4. orionATL says:

    open access to scientific and technical research and data, the cause for which aaron swartz was industriously working, is not an abstract, trivial matter. it is a vital element in keeping scientific research moving and keeping it “honest”.

    in this week’s issue, the science journal “Nature” (494-feb 28,2013) has as its lead editorial “gold on hold”, a discussion of recent open access rulings by the american and british governments.

    the editorial criticizes (as too long) a policy proposed by the U.S. Office of Science and Technology Policy of a grace period of 12 months from publication after which federal agencies should ensure that all articles and data produced from research they fund be made publicly accessible.

    Nature argues for “…the policy that benefits science the most:’gold’ open access, in which the published article is immediately freely available, paid for by a processing charge rather than by reader subscriptions.”

    the editorial also makes brief mention of a bill introduced into congress 2 weeks ago called the Fair Access to Science and Technology Research (FASTR) bill.

  5. emptywheel says:

    @Ben Franklin: I think the pleadings are just the twitter orders. This was about unsealing them, the WL folks lost their case, so the orders requiring Twitter to unseal them will remain sealed. Isn’t that what they are?

  6. P J Evans says:

    More or less OT:
    Robert Mueller is claiming the sequester will hurt the FBI’s investigation of Wall Street fraud.

    There’s a lot of LOLWTF in the comments at that link.

  7. Ben Franklin says:


    Thanks for looking into it, Marcy. It seems the previous page (redacted) has the impetus for the sealed indictment. what did you think of the CC to London and Stockholm? Some things still get past the one micron filter.

  8. beowulf says:

    “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.”

    Her lawyers absolutely did the right thing here. I have no doubt the US Attorney would have dropkicked her into federal prison if she was a hard case and refused immunity.

    As for Aaron, the federales clearly didn’t think through the best way to deal with him. He didn’t have a record, he wasn’t violent and his prosecution was a political headache. On the hand, they knew he didn’t want to go to jail and that he didn’t want a felony on his record (Freedom Rider he was not). So now they have leverage. So give him a plea for stacked misdemeanors and put him on probation for 5 or 10 years (and yet he’s not a felon!). If he takes the plea, they own him. They’re allowed to search his home and computer at any time, put a GPS tracker on him if they want, warn him off from associating with “the wrong crowd” however they define it and can more or less compel him to be a confidential informant (if the judge was OK with it, they could violate him for not cooperating with law enforcement).

    In other words, a police state as designed by Mark Kleiman. And you know something, Aaron’s lawyers would have pulled their hair out and demanded he take the deal (as well they should), and he would have.
    Like they say on Wall Street, pigs get fat and hogs got slaughters, these prosecutors got greedy and pretty much blew up their careers.

  9. Ben Franklin says:


    ” There is no evidence to support the existence of a “sealed indictment”.”

    Whaaa ?

    Is there evidence of a Grand Jury? If there is, there is an indictment, even for a ham-sandwich.

  10. bmaz says:

    @Ben Franklin: Yes, there was clearly a grand jury; however, the rest of you statement is simply not true. Grand juries are used for investigatory purposes all the time.

  11. Ben Franklin says:


    Really? You seem enamored of a process (GJ) which does whatever the hell it wants. Your attachment to the edifice keeps you from moving about; surveying the scenery. Just sayin’

  12. Ben Franklin says:

    filed yesterday….

    “Although EPIC does not bear the burden of conducting a segregability analysis, the government has described records that appear readlly segragable. Example, the government is seeking to protect the names of witnesses, law enforcement personnel, foreign officials and individual targets of investigations…snip…..However names and id info, opinions portions of docs are frequently redacted under FOIA, leaving the remaining portions free to be disclosed.”


  13. bmaz says:

    @Ben Franklin: Used appropriately, there is absolutely nothing wrong with the grand jury process. Yes, it is subject to abuse in the hands of an unethical prosecutor; so is every thing else in the legal system. My eyes are pretty well open on the process; I have a fair grasp of it.

  14. Ben Franklin says:


    “Used appropriately,……. My eyes are pretty well open on the process; I have a fair grasp of it.”

    Fine, in theory….but there’s no evidence your eyes recognize the elements of style when used, inappropriately.

  15. bmaz says:

    @Ben Franklin: I have represented dozens and dozens of people hailed before grand juries, both as direct targets, and as fact witnesses like Ms. Norton. I have myself been summonsed to appear in front of them, one time of which I was held in contempt for not disclosing attorney client privileged information and was literally being transferred to jail until an appellate judge stayed the order. I know more than a little about grand juries, their uses and abuses.

  16. Ben Franklin says:


    ” I was held in contempt for not disclosing attorney client privileged information and was literally being transferred to jail until an appellate judge stayed the order”

    Let me end this exchange by saying; I had no idea of the size of your balls….

  17. bmaz says:

    @Ben Franklin: Thank you I think, but no, that is simply what you are supposed to do. What was problematic AND EXTREMELY DIFFICULT, however, was that it was during the 1993 NBA playoffs, and I had tickets to the Suns v. Bulls that night. But for a certain judge entering a stay after normal court hours, it could have been very ugly and regrettable.

  18. bmaz says:

    @Ben Franklin: Also, the real point is, this stuff goes on every day, in every federal court, and county level state court, in every jurisdiction in the country. Can, and do, ham sandwiches get indicted? Yes. But there is a hell of a lot of normal prosecution done too. Humans are imperfect, and their systems of justice are too. One depends on the other. Is the system flawed, of course it is.

    But, back to the original point of discussion. GJs are really very often used as an investigatory function without specific charging being done – at least by that GJ. That is normal and contemplated. Are there abuses of that? You bet. But I would rather have the record and oversight of a GJ than simply give the unfettered power to prosecutors and Administrative agencies, which is pretty much the alternative in far too many cases.

  19. Laroquod says:

    @bmaz: However you have just conceded that a Grand Jury can be procedurally convinced to indict anything (the proverbial ‘ham sandwich’); therefore they already have the unfettered power, so your characterisation of it doesn’t really stand even if you are right about the commonality of Grand Juries that are not even convened for the *purpose* of an indictement.

  20. Denis says:

    Please redact the previous post (the syntax is too much uncorrected). May be this one is a bit better (and shorter) :

    You are probably true on what you say about. And it is very scary that the rat has ratted much more than a boyfriend, thanks to digital groups and accounts. But the problem of Swartz is that a rat was in his dish of love since much more time that it appears. Ereno is unclear. What is EIFL? Were are they? Are they now harassed (which it can be) by the FBI or by the CIA? Or quietly staying in their corner as officine of secret agency under the cover of a charity? JSTOR could be a trap. Everything seems to unfold perfectly in chronological order since the answers which went deep to the past were progressively claimed from the part of the prosecutors at Washington. So eventually they are completely exonerated from having been exceeding and inappropriate facing the role for having driven Swartz to the death. Norton just publish her revelation so as self-incriminate – while she self-forgives, and finding a crowd of supporters for her consolation – and the following day the state announces that prosecutors have done their job and nothing to see in these salads between Norton and Swartz which are the only cause of his suicide if the trial is the cause. She did not reveal Ereno by mistake but because that was the plan and it has been in the kitchen since a long while ready to be cooked for the day they would want to stop Swartz more holding his case as an example. The question of digital comes just to close this affair. But the real problem in this cas is not the digital it is that there are living moles since a very long while inside the life of Swartz. If there are secret agent among activists: this is the worst. And even without leaving tracks : what can be done facing that?

    On EIFL I was very surprised of discover their warm but brief message in the memorial site rememberaaronsw, because in their terms they explicitely named Quinn N. at the moment they coud not ignore that she was no more the partner of Swartz. But obviously Taren SK who has discovered Swartz just dead and who had all the chances to be the main worker of this site. Il the knew of Aaron Swartz death they could not miss that Taren SK was his new partner of life. At my view it was very unpolished to make this discourtesy at this very moment. But when I discovered the pic where they are all (the one that is shown in the revelation from Norton published in The Atlantic), a lot of new questions have emerged in my mind…
    May be they are just affective facing the facts. May be not. And it is really difficult to believe one conscious activist, like the witness we talk about, could being so naive, and plus as critical journalist. Because the history of repression and prosecutions of the political activists and political unionists in the USA is a long history that became simply History. And notoriously since these time of wars everywhere in the name of security.

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