A federal judge has ruled that the estate of late entrepreneur and Internet activist Aaron Swartz may release to Congress and the public some of the information gathered by the lawyers preparing his defense in his hacking case.
Swartz was charged in July 2011 in the District of Massachusetts with the unauthorized use of Massachusetts Institute of Technology networks to download millions of articles from JSTOR, a nonprofit online archive of scholarly literature. Swartz killed himself in January, reportedly despondent at the prospect that he would serve prison time.
In U.S. v. Swartz, U.S. District Judge Nathaniel Gorton ruled May 13 that Swartz’s estate could release some of its discovery materials, including MIT and JSTOR email chains, as long as most of the names are redacted. Those institutions want all names blocked except for the two assistant U.S. attorneys who prosecuted the case; the government’s expert; and three law enforcement officers.
"The estate’s interest in disclosing the identity of individuals named in the production, as it relates to enhancing the public’s understanding of the investigation and prosecution of Mr. Swartz, is substantially outweighed by the interest of the government and the victims in shielding their employees from potential retaliation," Gorton wrote.
He added that MIT and JSTOR should have the opportunity to review and redact discovery materials "which relate to the weaknesses of MIT’s computer network."
He gave the parties a May 27 deadline to produce a joint proposal to modify the November 2011 blanket protective order, which barred defense from revealing any documents, files or records to anyone except potential witnesses.
Gorton wrote that the parties generally agreed that most discovery materials should be released, except for grand jury transcripts, immunity orders, criminal history information, the downloaded JSTOR articles and computer code associated with those articles.
The Boston U.S. Attorney’s Office and Swartz’s lawyers at Keker & Van Nest in San Francisco and Michael Pineault at Boston’s Clements & Pineault did not respond to requests for comment. Neither did MIT’s lawyer, Jonathan Kotlier, who chairs the government investigations and white-collar crime practice group at Boston’s Nutter McClennen & Fish.
As for JSTOR, "We favor open review and discussion of this case and what occurred," spokeswoman Heidi McGregor said. "We intend to release our documents relating to these events with the limited redactions we believe are necessary, and we are glad that today’s ruling supports this approach." Jeremy Feigelson, a litigation partner at New York’s Debevoise & Plimpton, represents JSTOR.
Cindy Cohn, legal director of the Electronic Frontier Foundation, a group that advocates for personal rights and freedoms in the digital age, conceded that limited redactions might make sense, but was disappointed that the government, MIT and JSTOR must agree on the redactions. "There’s a huge community of MIT students and alumni who are quite concerned about MIT’s involvement and they deserve to know," she said.
She found it troubling that the court essentially said the public has almost no interest here, compared with the interests of the government, JSTOR and MIT. "The public has a tremendous interest in how its law enforcement tools are used against people like Aaron Swartz," she said.
The House Committee on Oversight and Government Reform is investigating the prosecution. A petition on the White House’s website seeking the removal of Boston U.S. Attorney Carmen Ortiz for overreach has gathered more than 55,000 signatures.
Additionally, the government reform group Demand Progress is circulating an online petition to garner support for Swartz. The Electronic Frontier Foundation has a related petition demanding reform of the Computer Fraud and Abuse Act in Swartz’s name.