Aaron Swartz

MIT Releases Its Own Swartz Investigation After Stalling Release of Secret Service’s

MIT has just released its report on the university’s role in the investigation into Aaron Swartz.

Part of it explains how the Secret Service came to be involved in the investigation.

The MIT Police decided that the situation required expertise in computer crime and forensics, which they did not have. They therefore telephoned the Cambridge Police Department detective who is their normal contact for assistance with computer-related crime activity.19 The Cambridge detective they contacted was a member of the New England Electronic Crimes Task Force.20 When he received the call for assistance from the MIT Police, the detective was working at the Task Force field office in a federal building in Boston, together with other law enforcement officers whose agencies participate in the Task Force. He responded to the call, accompanied by two other Task Force members: a special agent21 of the U.S. Secret Service; and a detective from the Boston Police Department. They arrived at the Building 16 closet around 11:00 a.m.

We note that no one from MIT called the Secret Service. The MIT Police contacted the Cambridge detective by calling him on his individual cell phone. The special agent became involved because he accompanied the Cambridge detective. As a Task Force member, the detective would sometimes respond to calls alone, and sometimes respond in the company of other members of the Task Force. The MIT Police were aware that other members of the Task Force might accompany the detective, and that Task Force members included Secret Service agents.

[snip]

During the morning’s activities in the basement closet, the special agent had asked for whatever electronic records MIT might have on the matter. As it is IS&T’s protocol to obtain approval from MIT’s Office of the General Counsel (OGC) before releasing information or materials to outside law enforcement agencies, IS&T contacted the OGC, which responded that it was appropriate to comply with the agent’s request in view of the fact that law enforcement was conducting an investigation into what was potentially ongoing criminal activity of unknown scope, and it did not appear to OGC that such information would disclose personally identifiable information.

The report also provides this far less convincing description of how an MIT cop just happened to see Swartz close to his home and the Secret Service Agent just happened to be present at the time.

At approximately 2:00 p.m. an MIT Police officer was driving to the Stata garage after his shift in an unmarked police cruiser. He was familiar with the investigation and had been informed by radio that the laptop had been removed from the basement closet. He had seen the January 4 video of the suspect, as well as stills made from the video, and he had a still with him in his cruiser. On Vassar Street, near Massachusetts Avenue, he saw a cyclist pass him heading in the opposite direction. Based upon the stills and video, and given the backpack and clothes the cyclist was wearing, the officer observed that the cyclist matched the description of the suspect from the basement closet. He made a U-turn to follow the cyclist, who turned onto Massachusetts Avenue and proceeded north towards Harvard Square. When the officer reached the cyclist and pulled alongside, he rechecked the still photos that he had in his car and concluded that the cyclist was in fact the person in the photos. He immediately called his department for backup. A second MIT Police officer, accompanied by the special agent, responded by car from the MIT Police station.

This may well be how the federal investigation into Aaron Swartz started and how it happened that the Secret Service immediately took the lead.

But I do find the timing of MIT’s report release rather interesting. After all, just 12 days ago, they successfully moved to prevent the imminent disclosure of the Secret Service’s own reports on the investigation to Wired’s Kevin Poulsen.

Aaron Swartz, Plea Leveraging & The Bordenkircher Problem

CryingJusticeAs Netroots Nation 2013 begins, I want to emphasize one of the best panels (If I do say so) of the event. It is titled: Beyond Aaron’s Law: Reining in Prosecutorial Overreach, and will be hosted by Marcy Wheeler. Joining Marcy will be Aaron Swartz’s attorney, Elliot R. Peters, of Keker & Van Nest LLP in San Francisco, Shayana Kadidal of the Center for Constitutional Rights in New York, and Professor Jonathan Simon of Boalt Hall at Berkeley. The panel goes off at 3:00 pm Saturday June 22.

As a lead in to the panel discussion, I want to address a topic that struck me from the first moment of the tragic loss of Aaron Swartz, the pernicious effect of the late 70′s Supreme Court case of Bordenkircher v. Hayes.

Paul Hayes was a defendant on a rather minor (involved $88.30), but still felonious, bad check charge in Kentucky. But Hayes had a bad prior criminal history with two felony priors. The prosecutor offered Hayes a stipulated five year plea, but flat out threatened Hayes that if he didn’t accept the offer, the prosecution would charge and prosecute under Kentucky’s habitual criminal (three strike) law. Hayes balked, went to trial and was subsequently convicted and sentenced to life in prison under the habitual offender enhancement charge. It was a prosecutorial blackmail threat to coerce a plea, and the prosecutor delivered on his threat.

Hayes appealed to every court imaginable on the theory of “vindictive prosecution” with the prosecutorial blackmail as the underlying premise. Effectively, the argument was if overly harsh charging and punishment is the penalty for a defendant exercising his right to trial, then such constitutes prosecutorial vindictiveness and degrades, if not guts, the defendant’s constitutionally protected right to trial.

Every appellate court along the way declined Hayes’ appeal until the 6th Circuit. The 6th, however, came up with a surprising decision, granting Hayes relief, but under a slightly different theory. The 6th held that if the prosecutor had originally charged Hayes with the habitual offender charge, and then offered to drop it if Hayes pled guilty, that would have been perfectly acceptable; but using it like a bludgeon in plea negotiations once the case was charged was impermissibly vindictive, and therefore unconstitutional.

Then, from the 6th Circuit, the case finally made its way to the Supreme Court of the United States. By that time, Hayes had long been in prison and the prison warden, Bordenkircher, was the nominal appellee in the caption of the case. The Supreme Court, distinguishing another seminal vindictive prosecution case, Blackledge v. Perry, reversed the 6th Circuit and reinstated Hayes’ life sentence.

Blackledge v. Perry is a famous case known in criminal defense circles as the “upping the ante case”. Blackledge was convicted of a misdemeanor and appealed, which in North Carolina at the time meant he would get a new trial in a higher court. The state retaliated by filing the charge as a felony in the higher court, thus “upping the ante”. The Supreme Court in Blackledge held that to Continue reading

Hailing Carmen Ortiz While Ignoring Several Amendments

Main Justice has a bizarre post suggesting that those who excoriated Carmen Ortiz for her treatment of Aaron Swartz (and Tarek Mehanna and Russ Caswell, though MJ doesn’t name them by name) are now hailing her aggressiveness.

“The criticism lately has been that they’ve overcharged some people and been overly harsh,” Peter Elkann, a Boston defense attorney, said in a recent interview with Reuters. Elkann went on to observe that “no one is going to accuse any prosecutor of making too big a deal out of this case.”

That would be a safe statement, considering that the April 15 bombing killed 3 people and wounded more than 280 others, many of whom lost legs, as it left blood on the street and horrified and infuriated millions of Americans.

Ahem.

Maybe Main Justice doesn’t read this blog, which has twice noted the needless prosecutorial irregularity of Dzhokhar Tsarnaev’s interrogation.

But I would hope that a site covering legal inside baseball has heard of a guy named Erwin Chemerinsky, who seems just as troubled by DOJ’s refusal to comply with Dzhokhar’s reported request for a lawyer as bmaz and I?

It has become increasingly evident that the Justice Department violated the constitutional rights of Boston bombing suspect Dzhokhar Tsarnaev. He apparently was questioned for hours without being given hisMiranda warnings, and the interrogation continued even after he explicitly requested an attorney. It is disturbing that the Justice Department would risk its criminal prosecution by ignoring such basic rules and even more disturbing for what this says as to its view of the Constitution.

Don’t get me wrong. I don’t think Carmen Ortiz made the decision to refuse Dzhokhar a lawyer through 16 hours of interrogation alone. I’m quite certain she did that because that’s the policy — generally and specifically — Obama’s DOJ wants to pursue.

But that’s true of her over-aggressive pursuit of the war on drugs, the war on hackers, and the war on Muslims, too, the wars she was fighting when she took down Aaron Swartz and Tarek Mehanna (and tried to take down Russ Caswell). The other abusive decisions she made all reflect the policy choices of the Obama Administration.

But denying someone his Fifth and Sixth Amendment rights is completely consistent with what we’ve seen Carmen Ortiz do in the past. And while Main Justice appears unphased by it, some of the same people who have noted her prosecutorial aggression in the past are noting it continues here.

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.

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. Continue reading

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.

Secret Service Claims It’s Still Investigating Now-Deceased Aaron Swartz

After Aaron Swartz died, Jason Leopold FOIAed Secret Service, since that’s the agency that was investigating Swartz when he died.

Curiously, contrary to the FBI — which at least claims to have treated Swartz as they would any other deceased person and turned over all but two pages of his PACER investigation file — Secret Service denied Leopold’s FOIA.

“Disclosure could reasonably be expected to interfere with enforcement proceedings,” they said.

Or, to translate from FOIA-speak, the investigation into Aaron Swartz, who died weeks and weeks ago, is an active investigation.

Most interesting came when USSS’s FOIA officer claimed there was nothing segregable from this “open case.”

We were then transferred to Latita Payne, the Secret Service’s FOIA disclosure officer, who explained to Truthout, “we did a search of our offices [for responsive records] and they responded that it’s an open case.”

Payne said there weren’t any segregable portions of records on Swartz that the Secret Service could release.

Secret Service doesn’t want to turn over Swartz’ file — any of it — because any little bit of it might reveal its investigation into … something. Someone. Presumably not Swartz, since he’s dead.

Now, since USSS first responded to Leopold, they seem to have decided that this answer — the claim they can’t release any files on an investigation into a deceased person — isn’t going to fly, so they’re going to reconsider that answer.

We’ll see how forthcoming that response is.

One other detail. Notice how FBI released its response to Swartz FOIA just long enough before this response so distracted people might think the FBI file is all there is (as if a huge indictment would leave no tracks)? Nice timing.

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. Continue reading

DOJ: We Can’t Tell Which Secret Application of Section 215 Prevents Us From Telling You How You’re Surveilled

As Mike Scarcella reported yesterday, the government has moved for summary judgment in an Electronic Privacy Information Center FOIA suit for details on the government’s investigation into WikiLeaks. EPIC first FOIAed these materials in June 2011. After receiving nothing, they sued last January.

The government’s motion and associated declarations would be worth close analysis in any case. All the more so, though, in light of the possibility that the government conducted a fishing expedition into WikiLeaks as part of its Aaron Swartz investigation, almost certainly using PATRIOT Act investigative techniques. The government’s documents strongly suggest they’re collecting intelligence on Americans, all justified and hidden by their never ending quest to find some excuse to throw Julian Assange in jail.

EPIC’s FOIA asked for information designed to expose whether innocent readers and supporters of WikiLeaks had been swept up in the investigation. It asked for:

  1. All records regarding any individuals targeted for surveillance for support for or interest in WikiLeaks;
  2. All records regarding lists of names of individuals who have demonstrated support for or interest in WikiLeaks;
  3. All records of any agency communications with Internet and social media companies including, but not limited to Facebook and Google, regarding lists of individuals who have demonstrated, through advocacy or other means, support for or interest in WikiLeaks; and
  4. All records of any agency communications with financial services companies including, but not limited to Visa, MasterCard, and PayPal, regarding lists of individuals who have demonstrated, through monetary donations or other means, support or interest in WikiLeaks. [my emphasis]

At a general level, the government has exempted what files it has under a 7(A) (ongoing investigation) exemption, while also invoking 1 (classified information), 3 (protected by statute), 5 (privileged document), 6 (privacy), 7(C) (investigative privacy), 7(D) (confidential source, which can include private companies like Visa and Google), 7(E) (investigative techniques), and 7(F) (endanger life or property of someone) exemptions.

No one will say what secret law they’re using to surveil Americans

But I’m most interested in how all three units at DOJ — as reflected in declarations from FBI’s David Hardy, National Security Division’s Mark Bradley, and Criminal Division’s John Cunningham – claimed the files at issue were protected by statute.

None named the statute in question. All three included some version of this statement, explaining they could only name the statute in their classified declarations.

The FBI has determined that an Exemption 3 statute applies and protects responsive information from the pending investigative files from disclosure. However, to disclose which statute or further discuss its application publicly would undermine interests protected by Exemption 7(A), as well as by the withholding statute. I have further discussed this exemption in my in camera, ex parte declaration, which is being submitted to the Court simultaneously with this declaration

In fact, it appears the only reason that Cunningham submitted a sealed declaration was to explain his Exemption 3 invocation.

And then, as if DOJ didn’t trust the Court to keep sealed declarations secret, it added this plaintive request in the motion itself.

Defendants respectfully request that the Court not identify the Exemption 3 statute(s) at issue, or reveal any of the other information provided in Defendants’ ex parte and in camera submissions.

DOJ refuses to reveal precisely what EPIC seems to be seeking: what kind of secret laws it is using to investigate innocent supporters of WikiLeaks.

By investigating a publisher as a spy, DOJ gets access to PATRIOT Act powers, including Section 215

There’s a very very large chance that the statute in question is Section 215 of the PATRIOT Act (or some other national security administrative subpoena). After all, the FOIA asked whether DOJ had collected business records on WikiLeaks supporters, so it is not unreasonable to assume that DOJ used the business records provision to do so.

Moreover, the submissions make it very clear that the investigation would have the national security nexus to do so. While the motion itself just cites a Hillary Clinton comment to justify its invocation of national security, both the FBI and the NSD declarations make it clear this is being conducted as an Espionage investigation by DOJ counterintelligence people, which — as I’ve been repeating for over two years – gets you the full PATRIOT Act toolbox of investigative approaches.

Media outlets take note: The government is, in fact, investigating a publisher as a spy. You could be next.

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Did the MIT Police Stake Out Aaron Swartz’ Home on January 6, 2011?

One of the details I’ve been puzzled by in the Aaron Swartz story is how MIT Police Captain Albert Pierce happened to locate Aaron on January 6, 2011. After all, Aaron was filmed in the circuit closet at 12:32 PM, but left by 12:34. He went from there to MIT’s Student Center, where he plugged his computer in again. MIT must have lost track of him, because they didn’t find his computer until 3PM, and they found it by looking for the computer ID, not by tracking Aaron’s path. Aaron wasn’t found until 2:11, when Pierce saw him riding his bike down Massachusetts Avenue.

What are the chances, I’ve been wondering, that this Captain–possibly in the company of Secret Service Agent Michael Pickett (the NYT seems to suggest they were together; the arrest report suggests Pickett got called in)–found Aaron just riding down Mass Ave?.

I think Saul has provided the answer.

The map above shows the location of the two MIT buildings (in the lower right) and where Aaron was arrested on Lee Street (Saul did a more complete map here, also showing the Secret Service office). The fourth dot shows where Aaron lived at the time: 950 Mass Ave.

In other words, Pierce just happened to be less than two blocks away from Aaron’s home when he spotted him.

That would solve one mystery, but raises another one: how did they ID Aaron?

Though that one is pretty easy to solve, too. After all, when the CPD and Secret Service first checked the laptop on January 4, they fingerprinted the computer. In addition, they had pictures from Swartz’ entry that day.

It would have been very easy to find a picture of Aaron. I’m more curious whether authorities had his fingerprint on file, though. I guess we’ll learn that when his full FBI file gets liberated.

In any case, if Pierce was, in fact, staking out Aaron’s house (what is the MIT cops’ authority to do that, anyway?), then it would suggest they knew exactly who he was before they arrested him.

Update: The affidavit used to get a warrant for Aaron’s USB made this claim.

An MIT police officer who had seen several pictures taken by the covert camera in Building 16′s network wiring closet saw Aaron Swartz on a bicycle near MIT, approximately half an hour after the “ghost laptop” had been connected in Building W20.

Yep, that’s a load of half-truth.

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