Concerns Raised About Aaron Swartz's Prosecution And The Wikileaks Connection

from the fishing-expedition dept

Let’s state upfront that a lot of what’s in this post is conjecture based on a few pieces of information out there. I’m not convinced that it presents enough evidence of an actual connection. However, a bunch of folks have been talking about this (and submitting it here), so we wanted to raise the issue to see what people thought, and if there was any other information that could confirm or deny some of the conjectures in the piece. As far as we can tell, some of the timing is a bit odd, but it could very well be a coincidence. We’d love to have the full story if there was one, but federal prosecutors — especially those under media scrutiny — aren’t known for suddenly opening up about these sorts of things. Given that, we thought we’d post some of the details of the discussion for the sake of continuing the discussion and seeing if anyone had anything more conclusive, either showing a connection between Aaron Swartz’s prosecution and Wikileaks… or debunking it.

We’ve already discussed how Wikileaks bizarrely outed Aaron Swartz as a possible source, and that’s leading to other speculation as well, including a question as to whether or not the grand jury investigation into Swartz was really more about the fishing expedition against Wikileaks, rather than the whole MIT/JSTOR effort. The Emptywheel blog (linked above) notes that Swartz’s defense indicated it was aware of a much deeper investigation concerning Swartz that went beyond MIT and JSTOR to Twitter, Google, Amazon, the Internet Archive and possibly more — and asked the government to turn over such materials:

These paragraphs request information relating to grand jury subpoenas. Paragraph 1 requested that the government provide “[a]ny and all grand jury subpoenas – and any and all information resulting from their service – seeking information from third parties including but not limited to Twitter. MIT, JSTOR, Internet Archive that would constitute a communication from or to Aaron Swartz or any computer associated with him.” Paragraph 4 requested “[a]ny and all SCA applications, orders or subpoenas to MIT, JSTOR, Twitter, Google, Amazon, Internet Archive or any other entity seeking information regarding Aaron Swartz, any account associated with Swartz, or any information regarding communications to and from Swartz and any and all information resulting from their service.” Paragraph 20 requested “[a]ny and all paper, documents, materials, information and data of any kind received by the Government as a result of the service of any grand jury subpoena on any person or entity relating to this investigation.”

Swartz requests this information because some grand jury subpoenas used in this case contained directives to the recipients which Swartz contends were in conflict with Rule 6(e)(2)(A), see United States v. Kramer, 864 F.2d 99, 101 (11th Cir. 1988), and others sought certification of the produced documents so that they could be offered into evidence under Fed. R. Evid. 803(6), 901. Swartz requires the requested materials to determine whether there is a further basis for moving to exclude evidence under the Fourth Amendment (even though the SCA has no independent suppression remedy).


Moreover, defendant believes that the items would not have been subpoenaed by the experienced and respected senior prosecutor, nor would evidentiary certifications have been requested, were the subpoenaed items not material to either the prosecution or the defense. Defendant’s viewing of any undisclosed subpoenaed materials would not be burdensome, and disclosure of the subpoenas would not intrude upon the government’s work product privilege, as the subpoenas were served on third parties, thus waiving any confidentiality or privilege protections.

Given all of that, it’s leading some to wonder if this was more about the big fishing expedition a grand jury has supposedly been working on for quite some time, trying to sniff out anything that can be used against Wikileaks. There is no confirmed connection to the Wikileaks investigation, but Emptywheel notes some oddities in the timing — such as the grand jury investigation into Aaron seeming to ramp up just as it appeared that the big Wikileaks grand jury was coming up empty. In fact, as Emptywheel showed in a different post, it looked like the investigation into Swartz was going absolutely nowhere… until the grand jury suddenly showed renewed interest long after the arrest. The post notes that the Secret Service didn’t even bother searching the laptop onto which Swartz had downloaded the JSTOR material for weeks after getting involved in his case.

But what happened in between the arrest and the sudden decision to really look into Swartz? The DOJ drew a big, fat blank against Wikileaks. The timeline:

  • Swartz was arrested on January 6th, 2011.
  • On February 9th it was reported that the Justice Department had drawn a blank on anything it could use to go after Wikileaks.
  • That same day, February 9th, the Secret Service suddenly got around to issuing warrants to search Swartz’s hardware

Oh, and one other key date. Just a couple weeks before all of this, on December 27th, 2010, Swartz had filed a FOIA seeking information concerning the treatment of Bradley Manning. As is noted in the posts linked here, it’s not at all normal for the Secret Service to wait so long to get a subpoena.

I will say that I’m far from convinced there was a full connection here. There is way too much speculation and conjecture and it is quite possible (even probable) that the timing is all a coincidence. But the timing is at least worth noting, since it seems that more and more information keeps coming out about this.

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Companies: amazon, google, internet archive, jstor, mit, twitter, wikileaks

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Comments on “Concerns Raised About Aaron Swartz's Prosecution And The Wikileaks Connection”

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DMNTD says:

Dear mike

To see you hinge on the word “coincidence” so heavily worries me dude. So I leave you with the following.

Coincidence?as in an event (or something) that occurred (or exists) for no reason (or by accident, chance)?is non-sequitur and it is never a conclusion for anything, for it cannot conclude anything. For that reason nothing is mere coincidence. Many will deny this, but one can never prove this coincidence; it is like trying to prove that truth doesn’t exist. Therefore everything happens for a reason, even if we do not know this reason. Note that there is no middle man here.

Coincidence, then, is shown to be a word used merely for one’s convenience. It fills the gap in knowledge (though inappropriately) so as to maintain any disbelief the person may hold. It is not a word for anyone who seeks to know (the) truth, nor for one who seeks to remain in truth. For truth cannot be found within coincidence, as it follows from nothing. Therefore it cannot be said that life or existence as we know it bears no reason.

ChrisB (profile) says:

Re: Dear mike

You don’t understand what coincidence means. It doesn’t mean something exists for no reason. It means there is no relationship between multiple events. If I snap my fingers right now, a light somewhere goes on. Is their a casual relationship between those two events, or are they unrelated? If it is the latter, it is a “coincidence” that both occurred at the same time.

Jay (profile) says:

The take of Wikileaks

So let’s tell the story as we know it so far…

The WL version shows that Wikileaks has been heavily prosecuted for publishing information that makes all governments look bad. The US government has been the worst prosecutor, looking to make Assange a personal pariah and an enemy of the state. The reasoning is rather simple: thegovernment wants to maintain a hold on the release of information. They want to maintain a hold on what information is released and when. Every time a court has a chance to review what or government is doing, they reply that they have a state secret in their hands.

Further, our government seems to want to crack down on anyone that is not their version of a whistle blower. If you let go of information that would benefit the public, watch out. If you want to maintain the stasis quo though, you’re fine and very protected.

It bothers me though. Unfortunately, it seems that enriching the public about the government is a punishable offense. Our Supreme Court has made it so that corporations have more power in our government than people. There are some truly powerful interests looking to make an example of those that want to do good things.

No matter what happens, it seems that if you are trying to enrich the public, you are an enemy of the state.

When was it that the people the government was supposed to protect were not the people that voted you into office?

Anonymous Coward says:

Re: The take of Wikileaks

thegovernment wants to maintain a hold on the release of information.

So does Wikileaks…

There are some truly powerful interests looking to make an example of those that want to do good things.

There are some truly WIKILEAKS interests looking to make an example of those that want to do good things.

When was it that the people the government was supposed to protect were not the people that voted you into office?

When it was WIKILEAKS that WIKILEAKS was supposed to protect, were not the people that voted (YOU !!) THEM (wikileaks) into office.


US military

The Military Whistleblower Protection Act[25] protects the right of members of the armed services to communicate with any member of Congress (even if copies of the communication are sent to others).

Manning cannot use the Whisteblower act because the US Military law clearly states that for you to be a military whistle blower you can only make that information to CONTRESS, NOT the general public.

Anonymous Coward says:

Re: Re: The take of Wikileaks

“No the government is innocent because Wikileaks is just as bad! Manning is also a traitor because I can keep saying that it is!”

Last I checked, Wikileaks wasn’t trying to cover up pimping little kids in Afghanistan at the expense of taxpayers. Or causing the deaths of thousands of civilians. But that’s okay, Wikileaks must be a huge untrustable pile of dirt unlike the good ol’ trustworthy United States government, right?

But no, it must be WIKILEAKS SPIES AND INTERESTS that are ruining people’s lives. Not the very real United States Government who is causing people to commit suicide over invasive judiciary abuse. Keep wearing that tinfoil, kid.

Anonymous Coward says:


have you heard about the new splinter group forming, it is being formed from a few ‘insiders’ from wikileaks, they are making a new web site that will be called wikileaksleaks

it is believed they will be releasing 100,000 documents detailing the internal operation of wikileaks and providing all the data free to the public at large.

It is believed my this group that all organisations should be OPEN and all data, memo’s, cables, and datebases have been copied onto a thumb drive and will be timed released.

Wikileaksleaks is following in the tradition of wikileaks.

Stay tuned for the first of the releases, being the names and addresses of all the people who have provided information to Wikileaks.

Wikileaksleaks is proud to follow the long tradition and hopes to make America better by forcing Wikileaks to be more open and honest.

Anonymous Coward says:

Re: New web site shillleaks

I sure do like it when someone points out the failings of a big, out-of-control government and the statists go completely ballistic. Like the concept that daddy government isn’t completely pure has ruined their fragile little worldview.

Yes, the operations of this little document release organization is really as important as a government committing war crimes halfway around the world.

Get help, kid.

The Ultimate Anonymous Coward says:

A form of justice at last?

It has come to my attention that the alt.usenet.kooks Usenet newsgroup has nominated the United States Department of Justice for their “Bobo Award”, which is the “highest” of their awards and is given only to those kooks whose online looniness leads to bad real-life consequences. The previous “winner” was Andrew Cheung, the starvation-diet proponent who ended up causing several deaths. The reason for the DOJ’s Bobo nomination is, of course, having driven Aaron Swartz to suicide.

The nominating post is available at Google Groups:
/alt.usenet.kooks/msg/8c4a53aec01d0af0 is the individual message link (minus hostname part), or you can search for “bobo justice 2013” and it is fourth on the list, titled “Major Dual NOMINATIONS”. (Warning: that thread has several trolls posting to it.)

People might be interested in voting for those clowns at the DOJ when the awards are voted on, I think in February.

You might also be interested that the author of the nomination extensively cites Techdirt’s own coverage of the story in support of her arguments.

(Note: voting would require making Usenet posts to a newsgroup known to harbor its own share of stalkers and nutjobs; you might want to take steps to protect your identity, not from the government but from other kooks. Free news server AIOE requires some configuration but obscures your posting IP and allows arbitrary “from” names, without signup; Google Groups is easy to use if you’re not familiar with Usenet, but exposes your posting IP, so you might want to use a proxy of some sort if you vote from there, or to post from a public WiFi some distance from both your home and work.)

orbitalinsertion (profile) says:

Moreover, defendant believes that the items would not have been subpoenaed by the experienced and respected senior prosecutor, nor would evidentiary certifications have been requested, were the subpoenaed items not material to either the prosecution or the defense.

Well, that is supposed to be the case, isn’t it? One isn’t supposed to be able to subpoena just anything, right?


Prokofy Neva (profile) says:

Those Other Clams Not Opening Up on Fishing Expeditions

I’ll tell you what other clams are not opening up to fishing expeditions and are tighter than the clams in the federal government — the hacker community in MIT. They know more than they are telling; they aren’t talking. They are scared.

I’ve studied all the blogs and chat and tweets on this and thought about it a lot, and my question now is this:

Did Aaron Swartz help Bradley Manning download all those quarter of a million cables and other files illegally by helping create for him a scraper script and/or helping him move and store the files?

After all, Swartz really got to be an expert at that sort of “movement” work — he dl’d the Library of Congress, PACER, and JSTOR files in record time and efficiently, although he did get caught. Even so, he was an expert.

Or did Swartz help Danny Clark do that, and Danny Clark helped Manning? Or some other MIT hacker?

The feds were absolutely right to fish in these waters, because Bradly Manning, who is properly arrested and will be appropriately tried, regardless of any issues with his mistreatment, did go to the MIT hacker community in 2010 with his then-boyfriend while on leave during his service in the Iraq war, and did then eventually reach Assange at WikiLeaks and did from all accounts leak the files he had obtained. I always thought he had to have had help.

The narratives at Empty Wheel and other sites where people ask a lot of questions to try to prove their case that the “feds are overreaching” in fact help create the plausible set of suppositions that Swartz and/or others helped WikiLeaks. Certainly Jacob Appelbaum was front and center helping WikiLeaks and was properly questioned by the grand jury.

Once you suspend the hagiography, there really are a lot of questions to ask about Swartz, and you could sadly conclude that he killed himself precisely because he realized that he had either inadvertently or deliberately helped prosecute Manning, or sent someone else to the grand jury, or worse. We’ll never know. But it’s more likely he committed suicide over the despair and shame of such a thing, than fear of serving a mere six months in jail, in the plea bargain. That’s never been a persuasive reason for his suicide. (Naturally, his suicide could be completely unrelated to his Internet causes and his hacking case, but based on sheer depression or personal matters.)

You have to ask what it was that his ex-girlfriend told the grand jury as well, she’s mentioned in the court documents.

My operating theory is that WikiLeaks, with this accusation that Swartz was their source, was hoping to act quickly to pin the blame that might accrue to any hacker at MIT or anywhere else in the Manning loop on a dead man who wouldn’t talk. I also assume they’d like to distract attention from Jacob Appelbaum — again, to a dead man. They are opportunistic thugs. This is in keeping with their character.

One of the things that is tripping you up here is your certitude that the Feds “drew a blank” back then on these connections. You don’t know that because the trial hasn’t taken place. That’s just something some prosecutor or other party leaked to the Wall Street Journal and which you reported because it fit your theories of fishing and overreach. You don’t know that they leaked that as a false flag operation or just because there are wars among them on the theories of the case. It means nothing.

There is nothing to say that the Lamo chat logs published in Wired in fact will be used in the trial. They don’t quite rise to the test of “trial truth,” in my view, but this is a court martial. Furthermore, investigators said they found further proof of Manning’s contact with Assange during the hearings, and we haven’t seen that this was somehow “thrown out,” or “countered” by the lawyer, who actually hasn’t really made much of a robust defense on “I am a political prisoner!” grounds, preferring to lurch from “my transgender made me do it!” to procedural wrangles and admissiblity wrangles that haven’t worked — to simply gutting out his client’s time in solitary so he can book it against his sentence to have him serve less time. What a strategy! 900 days! That’s like the Siege of Leningrad. He should have been holding press conferences daily on the court house steps. He wasn’t.

Remember David House? He wouldn’t talk to the grand jury. But he published his notes. His notes let us know that the grand jury asked House whether Danny Clark had breakfast on the morning following the BUILDS open house with Bradley Manning at the Oxford Spa. So that means there is testimony about that or an allegation about that or something. He pleaded the fifth. But David House got mugged on Twitter and accused of all kinds of Bradsploitation by bloggers, and he seems rather quiet lately. The grand jury wanted to know about the girl with the purple hair, too. Who *is* the girl with the purple hair?

I think you nervously posted this blog because you think there might be something to it and you just want to be on the record as admitting it in case it comes out later. But you and Empty Wheel and other leftwing bloggers want to convert your analysis of “the fishing expedition” into a “prosecutorial overreach” narrative, even if in fact it may have been justified. You all want to liberate stuff and hack stuff, but committing treason big time, you might want to stop short there, and begin to mumble piously about “crossing a line” as Lessig has been doing about his dead protege.

Swartz’s FOIAs were made not out of concern for Manning — he didn’t really campaign for Manning. They were made for concern about what Bradley told House in the brig in Quantico during his visit, to see what in fact House may have given them or may have said that they monitored or something.

Bradly Manning is going to allocute (confess). That means he might name names. There may be no way to get those people he named because maybe the feds can’t pin it on people. Maybe it’s not a crime for you as a script kiddie to give scraping tips to Bradass87. But maybe if you did you might want to consider moving to Canada now.

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