The December 2010 Black Hole in the Network Interface Closet

As I’ve suggested, I’m very interested in pinpointing when and how the Federal government first got involved in the investigation of the JSTOR downloading and what role MIT had in the Feds getting involved. While Swartz’ lawyers put together a timeline of the investigation, it constitutes grand jury material that is currently sealed (though you can be sure the content of it would have been aired during Swartz’ trial).

And while we can get a pretty good idea of how the investigation proceeded from court documents, there two periods about which I have questions: December 2010, and the day of January 4, 2011.

The timeline below shows how Swartz allegedly accessed JSTOR documents, along with the response that JSTOR, MIT, and the government took. As you can see, the investigative narrative sort of fades out for the entire month of December 2010, when Swartz had a computer hooked right into MIT’s network. And then–due to what gets vaguely described as new tools to track flows on MIT’s own network–they found Swartz’ computer. But there’s a weird lapse in time, too: JSTOR notes that Swartz is downloading again around Christmas. But MIT doesn’t go find the computer–which it has recently acquired the ability to do–until January 4. Note, too, that the indictment treats the downloads from November 29 to December 26 as one charge, and those from December 27 to January 4, as another.

That leads to January 4, 2011, when according to the public fillings, the Cambridge cops and Secret Service got brought in and–almost immediately–SS takes over the case and MIT hands over data flow materials to SS without demanding a warrant. HuffPo explained that process this way:

According to the source close to the investigation, when MIT employees found the laptop, they contacted MIT police, who called Cambridge police, where the call was then routed to a detective assigned to the New England Electronic Crimes Task Force. That detective contacted another member of the task force, Michael Pickett, a special agent with the U.S. Secret Service, who helped lead the investigation.

In addition, MIT allows SS to get Carnegie Mellon’s CERT to collect the signals from Swartz’ laptop in a dropbox; when Swartz’ lawyers first asked for CERT’s notes on that data flow, the government refused to turn it over, saying that since they would not call any CERT experts to testify they didn’t have to.

I’m wondering several things. First, what were the new tools MIT used to analyze their networks in December 2010? Where did they come from? When did they get them? Was the JSTOR download the reason they did?

And also, what kind of legal analysis did MIT go through before they just let the government into their networks?

Finally, what obligations was MIT under to file Suspicious Activity Reports to the government regarding the JSTOR downloads and when did those obligations kick in? Did MIT comply with those obligations? Did the government know MIT’s network was compromised as early as September, or not until Cambridge brought in SS in January?

To be clear: I’m not suggesting anything nefarious about this–though I am mindful of this, from the scope of the investigation MIT President Rafael Reif has ordered: “I have asked that this analysis describe the options MIT had and the decisions MIT made, in order to understand and to learn from the actions MIT took.” That is, Reif now wants to know which of the decisions MIT pursued they had legal choices to avoid.

The government’s consolidated response to Swartz’ suppression motion claims that “neither local nor federal law enforcement officers were investigating Swartz’s downloading action before January 4, 2011, when MIT first found the laptop.” Note, they refer just to Swartz’ downloading action, not Swartz (though that may just be legal particularity), so it is possible though unlikely that federal law enforcement officers were investigating other activities of Swartz before then (we know the FBI had investigated his PACER downloads the previous year).

Note: the following timeline depends on the assertions of both the government and Swartz’ lawyers. It represents alleged facts as presented by self-interested parties, not uncontested facts. Documents used include the hardware search warrant affidavit,  superseding indictment, motion for discoverypre January 4 suppression motion, January 4-6 suppression motionconsolidated response to motion to suppress, and exhibit to supplement to motion to suppress. I’ve also included Swartz’ FOIAs, as described in this Jason Leopold story, because I find some of the coincidences intriguing (see especially the timing of his request for Secret Service access to encrypted files and CERT, which I’ll return to in a later post). Continue reading

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