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
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."