from the fishing-expedition dept
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:
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.
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.
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
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.