Stephen Heymann Involved in Swartz Investigation before Arrest

Ryan Reilly reports that Aaron Swartz’s last attorney, Elliot Peters, filed an Office of Professional Responsibility complaint against Swartz prosecutor Stephen Heymann in January. The complaint covers three things:

  • Delaying the disclosure of an email showing the Secret Service was involved in the investigation from the start and therefore should have gotten a warrant for Swartz’s computer before a month had elapsed
  • Pressuring Swartz to plead guilty with threats of inflated prison time
  • Delaying the disclosure of when Heymann first got involved in the prosecution and hiding other pertinent emails and reports

Reilly discusses the substance of the first item — which pertains to issues I covered in this post on Secret Service’s belatedly disclosed early involvement in the investigation and this post on the six week delay before actually searching Swartz’s computer.

Peters argued that the government failed by waiting more than a month to obtain the warrant. Heymann countered that he couldn’t get a warrant because he didn’t have access to the equipment. But an email in Heymann’s possession, which was written to Heymann himself, showed that assertion to be untrue.

In an email that was not provided to the defense team until the last minute, Michael Picket, a Secret Service agent, wrote to Heymann on Jan. 7, “I am prepared to take custody of the laptop anytime after it has been process for prints or whenever you feel is appropriate.

Reilly’s report (and the complaint) provide more substantiation for Peters’ claim that Heymann waited until after a status conference on whether or not the judge would hold a hearing on the suppression issues to hand over the email. The key complaint against Heymann, then, is that he didn’t turn over a key document until he knew the judge would actually investigate the issues around that document.

But I’m just more interested in the part of the complaint that is current hidden, the context of which is provided in the complaint.

Meanwhile, on December 21, 2012, AUSA Heymann produced yet another, much larger set of documents relevant to Mr. Swartz’s motion to suppress. This voluminous, disorganized production consisted of hundreds of previously-undisclosed emails, as well as hundreds of other documents, including undisclosed investigative reports, photographs, spreadsheets, and screen captures. Many of the newly-disclosed emails and reports further illustrated that the Secret Service was in control of investigating Mr. Swartz, and that AUSA Heymann was himself involved in the investigation even before Mr. Swartz was arrested on January 6, 2011. See, e.g.,

[paragraph-long redaction]

Upon review of the December 21 discovery, it became apparent to use that AUSA Heymann was well aware of the Secret Service’s investigation of Mr. Swartz’s case from its inception. This made AUSA Heymann’s misrepresentation about the Secret Service’s involvement in the seizure of Mr. Swartz’s electronic devices all the more troubling, because the misrepresentation could not have been made accidentally. Rather, because the December 21 documents had never before been disclosed to the defense, Mr. Swartz and his attorneys did not have the opportunity to consider and argue their relevance in Mr. Swartz’s motions to suppress, which had been filed months prior to disclosure.

While DOJ is clearly hiding the most interesting part of this, even this passage is telling. It reveals that:

  • Heymann was involved before January 6
  • DOJ withheld emails, documents, investigative reports, photographs, spreadsheets, and screen captures
  • Heymann was aware of Secret Service’s investigation “from its inception”

The least damning potential issue here is that Heymann was brought into the investigation on January 4, along with the Cambridge police and Secret Service, and that the belatedly disclosed reports showed a great deal of Secret Service investigation that had not been turned over. Given the language used in the complaint and the fact that the Secret Service technically handcuffed Swartz, it also seems to suggest that Secret Service was not just brought into the investigation (as suggested by what we’ve seen so far), but what the lead from the very start.

But there are other far more interesting possibilities which, if true, would explain a lot of questions I’ve had about the investigation. Here are some possibilities — and note, these are just wildarsed guesses:

  • Was Secret Service involved before MIT called the Cambridge police on January 4? Did they (or a contractor like Carnegie Mellon’s CERT team) provide the data flow reports that first identified the location of Swartz’s computer? Are those data flow reports included in the late discovery? Did Secret Service know the identity of Swartz before they conducted the flow, or before they caught him in the network closet? 
  • Did MIT call Secret Service before they called CPD? Did they call Secret Service before January 4, 2011? Did Secret Service call MIT first?
  • Did the photos in the belated discovery include photos of Swartz used to stake out Swartz’s apartment the day he was arrested? Had they already been staking out his apartment?
  • Peters has said DOJ subpoenaed Internet Archive for multiple versions of the Guerilla Open Access Manifesto. That seems to contradict what DOJ told the defense in earlier discovery motions. Were those subpoenaed reports part of the belated discovery?

Aside from these WAGs about what the hidden material might include, there are larger questions about whether they piggy backed an investigation into Swartz onto larger investigations of Cambridge hackers and/or other open access activists. Remember: past statements by the government left open the distinct possibility that they had emails “not relevant to this case.” I wonder whether those were among the emails turned over after DOJ learned the judge would hold a hearing into improprieties of the searches into Swartz.

Those are questions DOJ doesn’t want to answer.

20 replies
  1. TarheelDem says:

    It occurs to me that the Secret Service is the agency that investigates counterfeiting of currency and that Aaron Schwartz might have expressed some opinions about computerized currencies, such as BitCoin that might have triggered their interest in him.

  2. P J Evans says:

    Personal opinion (IANAL, etc): SS called MIT, and they were already staking out his apartment.

  3. thatvisionthing says:

    ianal. Isn’t Peters describing the crime of obstruction of justice by Heymann? Why a letter to OPR? Why not a lawsuit? Is Heymann immune from obstruction of justice lawsuits?

  4. scribe says:

    @TarheelDem: under the so-called USA PATRIOT Act, the Secret Service is one of the lead agencies for investigating alleged computer crime and they are supposed to assist local law enforcement on that.

    By way of example, in the case in Kennebunk, Maine involving the alleged Zumba instructor/prostitute, who allegedly had video and computerized links in her, ahem, studio, the Secret Service was significantly involved in the computer side of the investigation.

    But, back to the point of the post, I think Mr. Heymann has little to worry about. The President has already made it clear by not firing Ortiz that he’s ok with the conduct here, and this letter is addressed to the roach motel that is DoJ’s OPR.

    It’ll come to nothing.

  5. Saul Tannenbaum says:

    Hal Abelson – who knew Swartz for a decade – seems to be absolutely trusted by every Swartz supporter who knows him. That MIT went with a faculty member – rather than staff or a lawyer – as an investigator already says a lot. A tenured faculty member has the most freedom in an institution like MIT and can see what he thinks without fear of reprisal.

  6. orionATL says:

    Doj’s zombie fixer, david margolis, is probably on the case already – our department of justice always launders it’s lawyers’ dishonesty and incompetence.

  7. pdaly says:

    The timeline for when Heymann learned about the Guerilla Manifesto and the subsequent warrant to search Swartz’s home and then office is a little fuzzy to me vis a vis the timing of this motion to suppress hearing.

    I’m probably putting words into his mouth, but if Heymann states he didn’t need to worry about the expired 1/2011 and 2/2011 warrants for Swartz’s computer(s), phone and thumbdrive, because he (Heymann) had the Manifesto as a predicate act (is this the right term?) to keep alive the case, then why would Heymann worry about giving Swartz’s defense team exculpatory information during the supression hearing? Would Heymann’s early involvement in the case and his continuous access to Swartz’s confiscated computers during and before those early warrants expired really have hurt Heymann’s prosecution of Swartz?

    What else but a delay in Swartz’s defense team learning the facts about the expired warrants did Heymann achieve? And at what cost to himself? Heymann’s actions and words prove to Swartz’s team that Heymann lied in court. That cannot be protected activity by a prosecutor, can it? (Regardless of what the roach motel decides).

  8. pdaly says:

    MIT held an Aaron Swartz memorial service this week in the MIT Media Lab in Cambridge, MA, Tuesday night 3/12/13

    Excerpt from WBUR writeup of the event

    Abelson was at the memorial, listening as Stinebrickner-Kauffman voiced her mistrust of his pending report.

    “I fear that the investigation will instead be in the spirit of a bureaucracy, a PR exercise, a whitewash,” Stinebrickner-Kauffman said.


    Still, the speaker criticism wasn’t over. Bob Swartz, Aaron’s father and a consultant with an office on campus, claimed that MIT has lost its way.

    “What has happened to the MIT I love? How can this wonderful place act so cruelly? How could they crush my son?” Bob Swartz said.


    The last paragraph seems to end on a hopeful note that Abelson is listening. I hope that is the case:

    “When it was over, people walked out of the Media Lab, into the rain. But lingering for a while were two people at the center of all of this: Bob Swartz, Aaron’s father, and Hal Abelson, the man in charge of examining what MIT did right or wrong. They stood together and talked.”

  9. Saul Tannenbaum says:

    I was at the memorial event. Hal Abelson spoke, at length, with both Bob Schartz and Taren Stinebrickner-Kauffman, after they made their remarks.

    It’s certainly the case that there is disappointment and rage at MIT’s
    behavior. And, with respect to internal politics, it seems to be a case where faculty concerns were ignored by the general counsel’s office. If you’ve ever worked in a University, that dynamic shouldn’t be a surprise.

    Larry Lessig, who was Aaron Swartz’s mentor and who’s known Abelson for a long time, calls Abelson “the best person MIT could have appointed.” MIT is not monolithic. Abelson comes out of the same academic/cultural/political niche at MIT as Richard Stallman does, which a deep commitment to openness. Here’s one example.

    In 2002, an MIT graduate student named Andrew “bunny” Huang, reverse engineered Microsoft’s Xbox and broke the hardware encryption scheme protecting it. Microsoft sought to come down on him very hard, citing the anti-circumvention elements of the DMCA. When the MIT general counsel’s office declined to provide any sort of support to Huang, the Computer Science faculty decided to defy the lawyers and published Huang’s work as an official “memo” of the Artificial Intelligence Lab, giving a firm academic stamp to the work. The memo ( cites Hal Abelson’s moral support in the acknowledgements.

    I have no idea what Abelson’s report will say or whether it will satisfy folks. But by virtue of his reputation and track record, there’s every reason to be hopeful about the outcome.

  10. pdaly says:

    @Saul Tannenbaum:

    Something that bmaz brought up in a prior post is that once the prosecutor has the case, the prosecutor does not need the “victims” (MIT, JSTOR) in order to proceed.

    Wondering if MIT had refused to press charges of trespassing (did they sign off on trespessing charges?) would the case have fallen away? In any case it doesn’t sound like MIT tried to support Swarts, and the Secret Service and the US attorney’s office soldiered on.

  11. pdaly says:

    @Saul Tannenbaum:

    Thanks. That is April 2011 that Quinn Norton spoke.

    So the 1/2011 and 2/2011 warrants for Swartz’s computer, phone and thumbdrive were renewed and expired before the prosecutor’s office had this angle on the case. Yet they had already raided Swartz house in 2/2011 and university office in 3/2011?

    As emptywheel points out, the Guerilla Manifesto is used to go after a fishing expedition in Swartz’s house and not into the computers they had in their possession. But Quinn Norton doesn’t inform them about the manifesto until 4/2011. I’m confused. Will have to reread some posts.

  12. Saul Tannenbaum says:

    @pdaly: The state charges – including trespassing – were no longer at issue. It’s been reported that the Middlesex County District Attorney’s charges were going to be continued without a finding ( It was at that point that the US Attorney’s office stepped in. I believe that all the state charges had actually been dropped long before Swartz’s death.

    What people who are angry/disappointed with MIT are wishing it would have done was to stop cooperating with the investigation and take a public stand against the prosecution. Certainly the prosecution could have gone ahead without MIT’s cooperation, but the political pressure on Ortiz would have made things more difficult.

    One of the tragedies of this case is Swartz’s reluctance to go public and organize in his own defense. Taren Stinebrickner-Kauffman told the memorial that, in the last few weeks of his life, Swartz had reluctantly begun to organize a campaign.

  13. pdaly says:

    @Saul Tannenbaum:

    Thanks for the link, Saul.

    It must be the Protective Order by this judge that also prevented Swartz from raising awareness (and money) toward a defense fund.

    And your quote here shows how the same ongoing protective order is still hindering public investigation and sunlight on this case:

    “Robert Swartz, a long time consultant to the MIT Media Lab, the host of the memorial, told of pleading with MIT officials to reassess their role in assisting the prosecution and expressed bafflement that, due the protective order, he is unable to discuss some of what he knows about his son’s prosecution with Hal Abelson, the MIT faculty member appointed by MIT’s President, L. Rafael Reif, to examine MIT’s decisions.”

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