MIT And Aaron Swartz's Lawyers Argue Over Releasing Evidence

from the who's-hiding-what? dept

Wed, Mar 20th 2013 12:07pm — Mike Masnick

Last Friday, Aaron Swartz's lawyers asked the court that had been overseeing his case to lift a protective order on material submitted during discovery, which Swartz's family and lawyers say will help show how bogus the case against him was -- and which they've hinted will show how MIT went way too far in trying to help prosecutors go after Swartz. According to exchanges between Swartz's lawyer, Elliot Peters, and MIT staff (including MIT President Rafael Reif), MIT has argued that such documents should not be revealed because (a) it might violate the privacy of MIT employees and (b) because MIT never intended the info to be public. Peters discovered this after a reporter for the Wall Street Journal forwarded him the following statement from MIT:

The decision to lift the protective order rests with the judge who put it in place. Documents provided by MIT in the Swartz case included individual names and information regarding MIT employees. It is MIT policy and practice to protect employee privacy. MIT provided the documents under the express understanding that they would be protected from disclosure, which is the purpose of the protective order. Given this, we are concerned about any public release of information about individual MIT employees: we will seek to protect their privacy. At the same time, MIT is eager to share important facts about its actions in the Aaron Swartz matter with the public: Professor Hal Abelson has been charged by President Rafael Reif with conducting an analysis that will be made public in the coming weeks.

Peters, quite reasonably, found this statement to be absurd. Especially the part about MIT claiming that it provided the documents in the belief that they would be kept secret. As Peters noted in response, this was obviously untrue.

"This statement is an insult to my intelligence. The documents were provided to the government before any protective order was entered, and directly contrary to this statement, with the express understanding that they would be used in a criminal prosecution', which would lead to a PUBLIC TRIAL, at which time the documents would be offered into evidence and the witnesses would testify, in public. MIT never could have expected these materials not to become public, and I find this statement to be shockingly misleading and insincere."

Around this same time, the Congressional investigation into Swartz's prosecution requested the same information. Given that, Swartz's legal team met with the DOJ to discuss releasing the documents currently under protective order. They agreed to redact certain personal information (phone numbers, emails, home addresses, social security numbers, birthdays), as well as the names of four people who were questioned during the investigation, but who "were not actively involved in either the Government's or any institution's investigation" into Swartz. However, where the conversations broke down was over redacting the names and info of just about everyone else: law enforcement, MIT employees and JSTOR employees.

Swartz's lawyer argues that this information should be public and if the case had gone forward would have been public:

Criminal proceedings in our nation's courts are presumptively public....

As described above, the circumstances in this case have changed dramatically. Perhaps most obviously, with Mr. Swartz's death, there is no longer a case to prosecute and thus no danger that disclosure will impede a fair trial. Mr. Swartz's tragic death has also led to an increase in public interest in both the details of the investigation and prosecution and the reasonableness of prosecutions under the CFAA generally. In its discussions with Mr. Swartz's counsel about modifying the Protective Order, the Government has not, to date, asserted any reliance interest based on the Protective Order. Even if it were to assert such an interest, any Government reliance on the Protective Order's terms is tempered by the fact that it is a blanket order and therefore inherently overinclusive. As this District explained in Bulger, modification of such a blanket order is not unusual. Id. at 54. As a result, the only interest left to be balanced against the significant public interest in access to unredacted documents is the alleged privacy interest of the government employees and third party individuals named in the discovery materials. For the reasons discussed below, those interests are minimal and are overcome by the public interest in the disclosure of these documents.

They further note that hiding the names of those actually responsible will make the Congressional investigation into what happened much more difficult. Second, the information was provided initially without any expectation that this info would be kept private, so to ask for it to be kept private now makes little sense. In fact, they note that most of the people named, who the government and MIT wish to redact, were likely potential witnesses had the trial been able to move forward. "Consequently, MIT and JSTOR cannot now claim any reliance interest on behalf of their employees in the continued privacy of their emails at the time they produced the emails at issue to the government." They further point out that most of the names in question are already public and highlight press accounts and previous releases of documents in the case that specifically name: "MIT employees Dave Newman, Paul Acosta, Ellen Duranceau, Ann Wolpert, Mike Halsall, and Mark Sillis and JSTOR employee Brian Larsen, identifies their positions, and quotes their email communications." Given that this is already public, it seems odd to further seek to redact their participation.

The argument in the other direction is that the attention this case has received means that names of such folks might lead to threats, but Swartz's lawyer says there has been no evidence presented of any threats to MIT or JSTOR employees -- and even if there was, that wouldn't necessitate blocking out info on all such employees.

Separately, his lawyers point out that redacting law enforcement officials names makes even less sense, given that they are public employees.

Days after this motion was filed, MIT "responded" by agreeing to release the documents itself... but with those same redactions requested by the DOJ. MIT President Reif has tried to spin this as being "in the spirit of openness, balanced with responsibility." Of course, that doesn't make much sense. The DOJ has already agreed that this same level of information should be released, so MIT isn't doing anything here other than making it appear -- falsely -- as if it is making some concession towards openness. On top of that, MIT has said it will not release this info until its overall investigation is over.

Not surprisingly, Swartz's family is not particularly impressed by all of this. In a statement provided to us, Swartz's girlfriend, Taren Stinebrickner-Kauffman, notes that this is misleading not just because MIT isn't doing anything new here, but also in that this isn't MIT's decision at all.

“I welcome President Reif's commitment to transparency. However, this announcement is misleading. MIT does not get to decide in what form the evidence is released publicly. The judge does. MIT has already given this evidence to the courts, at which point it gave up proprietary control over the evidence. President Reif's decision simply foreshadows the inevitability that the judge will release at least this much of the evidence. It sets a low bar, but it does not decide the matter. The redacted documents MIT is releasing only tell one part of the story. Huge amounts of information would still be hidden beneath the protective order -- information that MIT's investigators themselves will not have access to unless the protective order is lifted. If MIT is really committed to transparency and having a full, complete investigation, they need to join the call with Aaron’s lawyers to lift the protective order."

Similarly, Aaron's father, Robert Swartz, noted that this is not a concession by MIT, and that MIT already gave up its rights to these documents, so trying to control how they are disseminated makes little sense.

"This is not a change in MIT's position. MIT could have no expectation of privacy or security since this evidence was given to the government with the understanding that it was evidence in a public trial,” said Robert Swartz, Aaron’s father. “They understood when they gave these documents to the government that they had no rights to privacy or security. MIT should release all internal communications related to this case whether or not they were provided to the government including all internal communications they had related to how they handled it and decided not to ask the government to drop the case."

Stinebrickner-Kauffman also pointed out that "if MIT wished to protect these people's privacy, MIT should not have become involved in the criminal trial to begin with. They made a calculated decision not to nip this case in the bud. They don't get to avoid the consequences now, after Aaron’s death."

130354865 Letter From Elliot to MIT (PDF)130354865 Letter From Elliot to MIT (Text)

130617538 Swartz Motion to Modify Protective Order With Decls and Exhs (PDF)130617538 Swartz Motion to Modify Protective Order With Decls and Exhs (Text)

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Filed Under: aaron swartz, discovery, elliot peters, evidence, mit, names, protective order, rafael reif, transparency

37 Comments

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Jay (profile), 20 Mar 2013 @ 12:13pm

One thing is certain...
Hell hath no fury like a woman scorned...

How this has blown up in the face of the government is considerable and having Aaron's girlfriend/fiancee leading the charge against government overreach is very poignant in a way...

I just find it amazing how she has made these people in positions of power look foolish with nothing more than words and showing how their actions were misleading and used to destroy Aaron's life.

That is a heat I would never want to have to take...
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out_of_the_blue, 20 Mar 2013 @ 12:13pm

Mike this is ridiculous...
You expect me to read all of this? Seriously? If I have to actually read all this, I won't have time to practice all my quips.

Take a loopy tour of Techdirt.com! You always end up at same place!
http://techdirt.com/
Where Mike's "no evidence of real harm" means he wants to let secretive mega-corporations continue to grow.
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Anonymous Coward, 20 Mar 2013 @ 12:16pm

Re: Mike this is ridiculous...
Aw poor out_of_the_blew_a_squirrel_in_a_dumpster is butt hurt.
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out_of_the_blue, 20 Mar 2013 @ 12:24pm

Re: Re: Mike this is ridiculous...
@AC: Hey, you should be happy. I could have gone the way of average joe and complained about the supposed "milking" going on.
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Anonymous Coward, 20 Mar 2013 @ 12:25pm

I am Mike Masnick, perfect being of light. I will not discuss the rightness or wrongness of Swartz's actions. I will only repeat anyone's claims that make the government look bad. Accusations are fine, but only if they exculpate Swartz. Accusations in the other direction are per se wrong, and no, I won't discuss them. I don't do details. I only spread FUD. Swartz is also a perfect being of light. He did no wrong. And, no, stop asking, I won't discuss what he did directly. Just know that I am perfect, Swartz did no wrong, and anyone who even wants to discuss any other possibilities can't be heard by me. I keep my fingers in my ears for such purposes.
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weneedhelp (profile), 20 Mar 2013 @ 12:30pm

Re:
8/10 for the idea.
2/10 for the execution.
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Anonymous Coward, 20 Mar 2013 @ 12:30pm

Tell the truth, MIT. What are you scared of? Not feeling so hot about your actions I see.
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Anonymous Coward, 20 Mar 2013 @ 12:30pm

Re:
Nice to meet you Mike Masnick.

I'm curious about you: how is it physically possible for you to stick your fingers in your ears if you are made of light?

Have you considered donating your photons for science?
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out_of_the_blue, 20 Mar 2013 @ 12:34pm

Re: Mike this is ridiculous... Fake out_of_the_blue is improving.
But as the clear intent is to silence me, I AGAIN call on Mike to expose any and all posts using the out_of_the_blue sceen name but without my unique browser header and "email" address.

Mike has already acknowledged the problem of duplicate screen names with the identicons themselves: they're to show the difference, so I hold that he has the obligation as above. -- Also, Mike has now and then exposed when someone is astro-turfing with multiple names from same IP (he's even written another indicident up twice), so the principle is clear.

And again, I don't anticipate legalities ever to result, but I'm setting up evidence of timely and frequent protest against this false use of my chosen long-time screen name.

And again, though you fanboys will jeer and mock: doesn't BOTHER me that Mike allows this fraud, as that and the jeering show EXACTLY what I wish to elicit on the site.
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Anonymous Coward, 20 Mar 2013 @ 12:35pm

Re: Re:
Also, do you need to turn on the lights to read in the dark, or is your radiant energy enough?
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Anonymous Coward, 20 Mar 2013 @ 12:38pm

Re: Re: Mike this is ridiculous... Fake out_of_the_blue is improving.
Perhaps if you created a profile you would not have this problem?

At least we could have a simple way to tell the difference.
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Ferel (profile), 20 Mar 2013 @ 12:41pm

Re:
Someone call the insane asylum, one of their deranged imbeciles is on the loose.
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Anonymous Coward, 20 Mar 2013 @ 12:43pm

Re: Re: Re:
Finally, being made of light, can you move at the speed of light, or are you still constrained to moving at the speed of us regular humans?

Also, when you say light, what kind of specturm are we talking about here: visible colour? Infra-red?
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Anonymous Coward, 20 Mar 2013 @ 12:47pm

Re: Re: Mike this is ridiculous... Fake out_of_the_blue is improving.
You are insane.
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Anonymous Coward, 20 Mar 2013 @ 12:48pm

Re: Re: Mike this is ridiculous... Fake out_of_the_blue is improving.
"EXACTLY what I wish to elicit on the site."

I have a hard time with this...because, honestly, you really don't elicit anything because no one takes you very seriously.
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Anonymous Coward, 20 Mar 2013 @ 12:49pm

Re: Re: Re: Mike this is ridiculous... Fake out_of_the_blue is improving.
To be clear, despite often not agreeing with you, I don't find it funny that your "chosen screen name" is being hijacked. I actually find it quite infantile and stupid.
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out_of_the_blue, 20 Mar 2013 @ 12:49pm

Re: Re: Mike this is ridiculous... Fake out_of_the_blue is improving.
I think one day.... say April 1, 2013.... we all post as OOTB or our favorite TD Troll character.

Hell Mike should make cute little Troll dolls by your names with your insane sayings on them. I would buy one.
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Anonymous Coward, 20 Mar 2013 @ 12:51pm

Re: Re: Re: Mike this is ridiculous...
I, Mike Masnick, do not milk. I present only that which represents the One True Way. Yes, I have published more words about Swartz than any mortal, and I have done so for the sole purpose of furthering my cause without regard for the truth, but that is not milking. Only mortals milk. I am Mike Masnick, the Infallible One. I don't discuss details. I am above truth, for I am truth.
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out_of_the_blue, 20 Mar 2013 @ 12:52pm

Re: Re: Mike this is ridiculous... Fake out_of_the_blue is improving.
I think one day.... say April 1, 2013.... we all post as OOTB or our favorite TD Troll character.

Hell Mike should make cute little Troll dolls by your names with your insane sayings on them. I would buy one.
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Anonymous Coward, 20 Mar 2013 @ 12:55pm

Re: Re: Mike this is ridiculous... Fake out_of_the_blue is improving.
Yeah. Meeting the demands of some guy whose sole purpose in life it is to harass me via my blog. Let me tell you how much of a priority that would be to me.
Watch and listen carefully below......
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Gwiz (profile), 20 Mar 2013 @ 12:56pm

Re: Re: Mike this is ridiculous... Fake out_of_the_blue is improving.
But as the clear intent is to silence me,...

Why would anyone want to silence you, Blue, when mocking you is much more fun?

Every village should have their own idiot and you have been chosen to be ours. You should be honored.
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The Almighty, 20 Mar 2013 @ 12:57pm

Re:
God, here. Going to need to ask for a citation on this.
"I am Mike Masnick, perfect being of light."
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RD, 20 Mar 2013 @ 1:26pm

Re: Re: Mike this is ridiculous... Fake out_of_the_blue is improving.
Shut the fuck up, troll! Aaron is dead, and you aren't, and believe you me, that situation should definitely have been the other way around. He contributed to the world, you contribute nothing but scorn, derision and ridicule, with your ludicrous fixation on Mike and this site, as if there are NO other more worthy ideologies to criticize (hint: there are, lots of them). Go do something useful with your miserable, worthless existence or SHUT THE FUCK UP!
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RD, 20 Mar 2013 @ 1:27pm

Re: Re: Re: Mike this is ridiculous... Fake out_of_the_blue is improving.
This should be done. I will definitely be doing it on April 1.
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out_of_the_blue, 20 Mar 2013 @ 2:27pm

Re: Re: Re: Mike this is ridiculous... Fake out_of_the_blue is improving.
Cool. All hail the copywrite troll.
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DOlz, 20 Mar 2013 @ 3:25pm

Re: Re: Re: Mike this is ridiculous... Fake out_of_the_blue is improving.
Nope we did not choose him. He yelled, screamed, pouted, and held his breath until we let him have the job.
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Anonymous Coward, 20 Mar 2013 @ 4:13pm

Masnick, I have news for you !!!

AARON IS DEAD.. there will be no court case, providing something to a court does not mean you give up your rights to that, generally material from a court case is returned to the people who submitted it.

Masnick you are also not a court, you don't know shit about this case, and you are clearly not willing to provide any form of balance or freedom from bias.

Masnick, this case WILL NOT BE HEARD, even by your half assed attempt at holding your own 'court'.

the only really notable thing Aaron did in his entire life was kill himself, that is what he will be remember for (if at all)..

I do note however his 'girlfriend' is doing her best to get her 15 seconds of fame from it. She could not even tell that he was suicidal !!!!..

sure, hiding computers in server cabinets, and running away from the police when they approach you, just makes him look like a dick.. now a dead dick..

but masnick, you live on, live long enough to fully milk this young mans death, are you living in hope that one day your children will follow this hero's footsteps ??

I expect masnick it's dicks like you who are trying to gain credits and gain advantage from this person to be the real sicko's. You care far more about his death that you EVER did when he was alive.

After all, he is so much more valuable to you having killed himself then he ever was in his entire miserable life..

Your not trying to celebrate his life, you are trying to cash in on his death.
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Anonymous Coward, 20 Mar 2013 @ 5:02pm

Re:
You act like you know so much, yet you struggle with the difference between your and you're.

Priceless.
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Pixelation, 20 Mar 2013 @ 5:14pm

This makes me wonder what MIT has to hide...
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William, 20 Mar 2013 @ 5:40pm

Re:
You mean the fact that their institution effectively pushed Aaron to suicide? Well of course they'd want to hide that.
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Digitari, 20 Mar 2013 @ 6:05pm

Re:
At least you got the coward part correct, the rest....

tl;dr
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Anonymous Coward, 20 Mar 2013 @ 6:48pm

Re:
Oh, right. So when someone dies there's going to be absolutely no court cases involved. Hm... what do you call trials over murder, again? Or were you drinking with your solar panel buddies because no other intelligent life wants to be seen standing next to you, darryl?
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Gwiz (profile), 20 Mar 2013 @ 6:59pm

Re: Re:
iD;dr
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Anonymous Coward, 20 Mar 2013 @ 7:53pm

Re: Re: Re: Re: Mike this is ridiculous... Fake out_of_the_blue is improving.
Wait, the rest of you guys let him have the job? I certainly did not approve of this!
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Hephaestus (profile), 20 Mar 2013 @ 9:22pm

Re: Re:
He probably took one of these pills

https://www.youtube.com/watch?feature=player_embedded&v=z9pD_UK6vGU
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G Thompson (profile), 20 Mar 2013 @ 11:48pm

Re: Re: Mike this is ridiculous... Fake out_of_the_blue is improving.
If it doesn't bother you why then did you put the word in all Capitals.. and then try to spin it as fraud (look up fraud next time first would be a good idea).

May be you are trying to obfuscate the issue?

As for the jeering you are getting.

Act like an idiot, get treated like an idiot and expect to attract idiots.
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Anonymous Coward, 22 Mar 2013 @ 1:47pm

Cover up of prosecutorial misconduct.
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