By Marcy Wheeler. Cross posted from emptywheel
Yesterday, the HuffPo caught up to reporting I did in January, reporting that DOJ used Aaron Swartz’ 2008 Guerilla Open Access Manifesto to justify their investigation of him.
A Justice Department representative told congressional staffers during a recentbriefing on the computer fraud prosecution of Internet activist Aaron Swartz that Swartz’s “Guerilla Open Access Manifesto” played a role in the prosecution, sources told The Huffington Post.
The “Manifesto,” Justice Department representatives told congressional staffers, demonstrated Swartz’s malicious intent in downloading documents on a massive scale.
Reich told congressional staffers that the Justice Department believed federal prosecutors acted in a reasonable manner, according to the sources. He also made clear that prosecutors were in part influenced by wanting to deter others from committing similar offenses.
When considering punishment, courts are supposed to impose an “adequate deterrence to criminal conduct” under federal statute. Swartz’s “Manifesto,” prosecutors said they believed, made clear that he intended to share the academic articles widely.
But there’s something the HuffPo is still missing.
Not only does the Guerilla Manifesto advocate doing a lot of things that may well be legal — the biggest exception is the one most applicable, downloading scientific journals and upload them to file sharing networks…
And look at the passage from the Manifesto they quote in the brief, which appears in this larger passage.
There is no justice in following unjust laws. It’s time to come into the light and, in the grand tradition of civil disobedience, declare our opposition to this private theft of public culture.
We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that’s out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. [my emphasis]
In context, much of the manifesto advocates for things that are perfectly legal: sharing documents under Fair Use. Taking information that is out of copyright and making it accessible. Purchasing databases and putting them on the web.
Aside from sharing passwords, about the only thing that might be illegal here (depending on copyright!) is downloading scientific journals and uploading them to file sharing networks.
But it’s the way the government used Swartz’ manifesto legally. They used it, as far as I’ve found, primarily to justify HOW they investigated Swartz.
They used it in a brief rebutting his effort to suppress a number of searches they had done in the investigation.
And that’s significant because of an oddity in the investigation. The government, at first, wasn’t all that quick to investigate Swartz. The let the actual evidence of the alleged crime just sit for weeks and weeks. And when they finally got around to looking into that stuff, they started with Swartz’ house, not with the hardware that offered the best evidence of a crime.
He was arrested very quietly on January 6; I suspect the reason few people knew about it was because no one expected it to amount to anything.
And for a while, it didn’t.
The Secret Service officer on the case, Michael Pickett, raised the issue of warrants on January 7–the day after Swartz was arrested. But the government didn’t get around to actually getting warrants to search this hardware until February 9, over a month later.
Here’s the warrant and supporting affidavit ultimately used for the hardware (except his phone, which was also seized).
But as this defense motion makes clear, there was a further delay after that first February 9 warrant. The Secret Service let the February 9 warrants for the hardware expire, and had to get new warrants on February 24.
Here, there was a 34-day delay in obtaining the February 9, 2011, warrant, which remained unexecuted, and a total of a 49-day delay until the obtaining of the February 24, 2011, warrant pursuant to which the items were ultimately searched.
On the other side of the balance, defendant knows of no conceivable reason which could justify a delay of this magnitude.
And while it’s not central to this post, in the motion Swartz’ lawyer cited a slew of Circuit Court opinions (though none from the First Circuit) throwing out searches on computers after this kind of delay.
In other words, after getting control of this investigation, Secret Service largely let it slide, potentially fatally so for any prosecution.
Which is why it’s interesting that, when the Secret Service finally summoned the energy (or got the okay from AUSA Stephen Heymann) to start this investigation, it was more interested in investigating Swartz’ home than in investigating his hardware–the stuff that directly tied to the crime purportedly in question.
This motion describes what happened with the investigation of Swartz’ home and then–after they didn’t find what they were looking for there–his Harvard office. Secret Service got the warrant to search Swartz’ house, which they executed on February 11.
On February 9, 2011, Secret Service S/A Michael Pickett submitted an affidavit in support of an application for a warrant to search Swartz’s home at 950 Massachusetts Avenue, Apt. 320, Cambridge, Massachusetts. Exhibit 34. A warrant authorizing the search was issued the same day. Exhibit 35. The search warrant was executed on February 11, 2011.
The affidavit was based on somewhat flimsy stuff–including a tweet Swartz had sent 30 days before the warrant application from a Mac, which apparently supported the Secret Service’s suspicion that Swartz had a Mac at his home.
The affidavit also mentioned that neither the “ghost macbook” associated with the JSTOR downloading or the external hard drive which had been observed attached to the ACER laptop on January 4, 2011, had yet been recovered. Id. The affidavit further stated that on January 10, 2011, Swartz “broadcast a message via Twitter for Mac.”
After searching Swartz’ house, they decided they needed to search his office.
On February 11, 2011, Secret Service S/A Brett Seidel submitted an affidavit in support of an application for a warrant to search Swartz’s office at 124 Mount Auburn Street, Office 504, Cambridge, Massachusetts, the case-specific averments of which were virtually entirely derived from observations made by law enforcement officers during the search of Swartz’s home and statements made by Swartz which were a direct product of that search. Exhibit 36. The warrant was issued and executed the same day. Exhibit 37.
And while I actually think the warrants for the home search would not have been thrown out (because after all, the Magistrate had approved them), I do think the motion makes a decent case that Secret Service provided no particularly compelling reason to tie Swartz’ apartment–and from there his office–to the crime they were purportedly investigating him for, downloading a bunch of JSTOR documents onto a computer they had in their possession but were letting sit.
What the government effectively did with Swartz’ Guerilla Manifesto, at least in that brief, was use it to justify the way they had investigated him, including this bizarre 6 week delay, prioritizing investigating his house before actually investigating the hardware that served as best evidence of any crime.
While they didn’t say so in as many words, the brief the government submitted — arguing that this delay shouldn’t result in suppression of the evidence collected in this odd investigation — basically says the Manifesto makes the delay okay.
That is, an investigative approach that might otherwise result in the best evidence be thrown out was okay, the government argued, because Swartz wrote a document advocating for the largely legal but nevertheless incriminating, it claimed, sharing of information.
Threat Level reveals the government went so far as subpoenaing various versions of the manifesto from Internet Archive.
His attorney, Elliot Peters, said prosecutors were “very focused” on the manifesto Swartz penned from Italy.
“They were very focused on it, and appeared to be planning to use it as evidence of Aaron’s intent to take the JSTOR material and somehow post it online to make it available for all,” Peters told Wired on Friday. “They had spent a lot of energy investigating that document — who wrote it, whether it conveyed Aaron’s point of view, etc.”
The government, Peters said, “had also subpoenaed various versions of the document from the Internet Archive,” Peters said.
This was part of the fishing expeditions Swartz’ lawyer was trying to win discovery on back in 2012.
DOJ told Congress it believed the Manifesto would prove motive — that Swartz planned to share the journals widely. But that only underscores that had he used them for his own purposes — to collect data on who funded what studies and what kind of results they produced, as he had in the past — they would have had a hard time claiming this was a crime at all.
It appears that, only by researching the Manifesto, a First Amendment protected publication that largely espoused legal information sharing, did the government even get around to treating this as a crime.
The Swartz investigation and prosecution was only ever about intimidation of those who dared to challenge Washington corporatism. It’s really as simple as that. Washington, the DOJ, and the Southern District of New York don’t investigate Wall Street and the largest frauds and thefts in world history. They don’t investigate and prosecute a bipartisan Who’s who of the well connected who took money from the MEK and advocated despite its ongoing terrorist activities that it be taken off the government’s list of terrorist groups, even though this amounted to blatant giving material support to a terrorist group. The government didn’t even investigate conservative commentators a few years back who advocated shooting judges with whom they disagreed.
If the powerful and well connected break the law, nothing happens, or they are granted retroactive immunity (telecom immunity, torturers), or they pay a joke find admitting nothing. If you are of the 99% or are fighting for them, the Establishment will use the law like a sledgehammer on you. Doesn’t matter if what you are doing is legal. Doesn’t matter at all. The powers that be and their hatchetmen will find or invent some form of lèse-majesté to charge you with.
There is no rule of law in this county. Invocation of the “law” has now become a weapon of class war used to stifle dissent among the 99% and enable looting among the 1%. This is not law. It isn’t even injustice. It is evil. And the guilt and culpability for this evil does not lie only with the higher ups, like Obama and Holder. It lies with the agents, the judges, and the prosecutors who execute their will. Nor can they hide behind the defense that they were only doing their jobs or that if they did not do it someone else would. These are merely the excuses which explain how evil becomes institutionalized and banal. We and they must understand that by doing the bidding of the 1% they have declared and are prosecuting a war against us. There is no ignorance, no incompetence involved. It is a malevolent choice they have made and one they can never walk away from.
As I have said many times, kleptocracy is violent, violent in both the getting and the keeping of its loot. Kleptocracy can not be reformed away. It controls and owns all the levers of reform. It can only be overthrown. And its overthrow will entail great violence, and the principal source of that violence will come from those who say they work for us but do so in name only and, in fact, are loyal to and serve institutions which the kleptocrats own and control.
Saw “Ghandi” last night. The game remains the same.
Patriotic and powerful.
“kleptocracy is violent, violent in both the getting and the keeping of its loot. Kleptocracy can not be reformed away. It controls and owns all the levers of reform. It can only be overthrown. And its overthrow will entail great violence, and the principal source of that violence will come from those who say they work for us but do so in name only and, in fact, are loyal to and serve institutions which the kleptocrats own and control.”
Kleptocracy – “It can only be overthrown”.
“…the guilt and culpability for this evil does not lie only with the higher ups, like Obama and Holder. It lies with the agents, the judges, and the prosecutors who execute their will. Nor can they hide behind the defense that they were only doing their jobs or that if they did not do it someone else would. These are merely the excuses which explain how evil becomes institutionalized and banal.” ~Hugh
And, I would add, there is enough culpability to extend to every tax-paying American as well.
We know what is going on in this country, or should; we see it on the news every night. Aaron Swartz is persecuted while white-collar criminality is encouraged, families are stripped of their dignity and their homes while the President orders assassinations every Tuesday; and all the while wars rage on around the globe (both the ones we know about and the ones we don’t), stoked by greed and American (and British and Israeli) intelligence agencies.
We know all this. We know that over half of the Federal discretionary budget goes to pay for past, current and future military spending. We know that lobbyists rule Washington, we know that the rich get richer while the poor get nothing. We know, in other words, that we live in a kleptocracy, and yet people continue to pay their taxes, continue to hand over their hard-earned loot to Uncle Sam so that he can continue to ram us all up the bung-holes. Honestly, it blows my mind.
I wonder, were there ever any tax protests in Germany, before the sh*t got really bad? Did any Jew or any thoughtful Christian ever think to themselves, whilst filling out their tax assessment, “maybe I shouldn’t be helping to pay for this madness?”
There was once a writer who disapproved of his country’s actions. His country was invading another country so that some white men living there would be allowed to treat black people like animals. The writer thought this was evil, and he refused to support the war. He refused to pay his country’s government the tax it demanded from him. The government’s agents caught up to the writer and threw him in jail. The next day, one of the writer’s friends came and bailed him out and paid his tax for him. The writer was very upset. He didn’t mind sitting in jail, in protest. He thought truth and justice were more important than his own comfort.
Nowadays, nobody thinks like that writer any more. We don’t have people with the integrity of an H.D. Thoreau amongst us any more. If the Mexican-American War were held today, most everyone, even Noam Chomsky I imagine, would pony-up their share. People may not like what their government is doing, but they don’t ever consider not helping their government pay for it. If ever this hypocrisy is raised to the level of consciousness, fear of punishment and other “practical considerations” are offered as exculpatory factors for our lack of action. But are these not “merely the excuses which explain how evil becomes institutionalized and banal?”
Well, we did. Quoting Aaron from above:
Also, that not-paying-your-taxes thing. I’m not so sure.
Doesn’t MMT teach us that a sovereign government can make up all the money it wants? Adding zeros to Fed to feed banks, minting a trillion dollar coin? And isn’t fiscal cliff austerity teaching us that we people — labor — don’t matter as resources to sovereign governments? (Distinction being that state and local govts that don’t issue money do need to balance their books, hence need your taxes, while federal govt doesn’t.) Maybe we don’t matter. Maybe that’s exactly what TBTF says.
When Stephanie Kelton was interviewed by Harry Shearer, they had an exchange about that, and it seems to me the point was that taxes are a means of controlling people and resources, but not necessary to sovereign government for funding:
And goes on from there. Kelton says euro took over from local currencies not because local currencies were withdrawn, but because government payments went to euros.
So not paying taxes, like Thoreau? I don’t know if the same money rules mattered then, fixed exchange pegged to gold, whatever. Doesn’t MMT date to 1971 when Nixon went off Bretton Woods, and doesn’t Bretton Woods date to WWII? Interesting context that I don’t understand.
Appealing to MMT is just avoiding the issue, imo. Yes, the government can fund whatever it wants, taxes or no, but doesn’t that just make the whole thing worse? They tell us they need taxes to pay for social programs but they don’t, they tell us they need taxes to pay for the war but they don’t. And we keep giving them our money (which is far from limitless for us individually) why? Just because, I guess.
But the larger MMT point about taxes, to my mind, is that the government’s ability to levy and enforce tax payments is what gives the currency value. Undermining the tax system, therefore, means undermining the legitimacy of the system that currently allows a handful of psychopaths to use the fiat currency power to fund their imperialist wet-dreams.
So far as I can tell, paying our tax bill is the closest any of us gets to signing the “social contract” we hear so much about. We are saying, in essence, “I agree to pay you (the government) X dollars in exchange for services rendered.” That is, voluntary tax payment implies acceptance of the deal government is offering. They will give us free education and roads and a minimal safety net, and in return we give them legitimacy and the sanction to carry out their crimes a home and abroad.
If the US government is in engaged in illegal, terrorist activities (which it is), then isn’t providing any type of support, financial or reputational, to the government abetting crime? Is it not providing aide and comfort to terrorists?
“we keep giving them our money (which is far from limitless for us individually) why?”
diptherio–why do we persist in thinking it’s “our” money? We have (digital or paper) Federal Reserve notes, not OURS at all.
We exist at the pleasure of the international banking cartel.
UNTIL…we succeed in either nationalizing our money OR creating effective cooperative currencies at the local level, OR some combination of both.
But until then, it seems to me that nothing about our money is actually “ours.”
In practice, the tax system will not be undermined by peaceful, principled tax resisters, but by the people buried under student loan debt who have to go off the books to avoid garnishment of wages. As a side effect they won’t pay income taxes or sales taxes either….
I disagree that violence is necessary. I think Aaron had the right idea, knowledge is power.
I am so sorry that Aaron Swartz is gone, because none of the things the DOJ threatened him with — the 35 years in prison, the branding of “felon” — could have been actualized without the assent of a jury. Any one of us, you or me, any twelve of us, had we sat on Aaron’s jury, could have stopped this. One of the purposes of the prosecution piling on charges and sentences to impossible heights is to pressure a defendant to plea bargain and keep the case away from a jury.
I wrote about my thoughts on juries here and here, before I ever heard about Aaron Swartz…
…and every thing I’ve read and seen since about Aaron makes me think what his trial could have meant to us all. Aaron was into analysis of root problems and how to get people on board to fix them democratically. Look what he was able to accomplish with stopping SOPA. Knowledge is power.
We had a violent revolution already, and the result was the Constitution, and a necessary component to Constitutional justice is juries. When memories of royal “justice” were freshest, the first Supreme Court sat with a jury, and the first Chief Justice, John Jay, gave the jury these instructions:
So it seems to me that the whole idea of civil “disobedience” and presuming that Aaron must pay an unfathomable sovereign penalty for doing it stands the Constitution on its head. And that’s presuming that what Aaron actually did could be “proven” in court to be illegal, which from Lawrence Lessig’s recent Harvard lecture seems to be a very iffy question. Even if it could, the way it was supposed to work in America was a prosecution had to pass another test — will I support it? The people as jurors are supposed to decide the law and what they will permit the government to do in their name, on a case-by-case basis. It’s not whether defendants measure up to unquestionable law, and it’s not that the jury writes new law, but it’s whether the law can measure up in actual practice to a test of a juror’s conscience and reason. Will I support it? Nonsense can be stopped. Injustice can be stopped. Abusive authority can be stopped. They’re supposed to be stopped, by a jury.
That changed, but not because the Constitution changed. It changed because the courts on their own decided we didn’t need to know our full function and power as jurors. Wikipedia used to have this description of Sparf:
Aaron was about spreading knowledge freely, in a country that now wants to privatize and own and sell and control knowledge. We now have corporate personhood that we see has absolutely corrupted our government — but how did that happen? There was no legislation, no election, no public discussion, no change to the Constitution, though corporate personhood was clearly outlawed at the time the Constitution was written. What changed? Where did corporate personhood come from? Well, like dumbing down juries, the courts just made it up. They didn’t do it with violence and physical force, they did it with a clerk’s erroneous headnote in Santa Clara 1886 and let the nation unravel from there. And without a jury to ever reality check and balance, and with the fourth Chief Justice’s decision in Marbury that the Supreme Court was above checking and balancing by the legislature or the executive branches — well, there’s the problem. It’s a Simon Says authority game now, a buy-and-sell control game, not a reasoning-together game. And broken stays broken.
Aaron, you left too soon.
sounds like you obtain information from sources other than television, the drug of a nation…..Breeding ignorance and feeding radiation….
T.V. is the reason why less than ten percent of our
Nation reads books daily
Why most people think Central America
Socialism means unamerican
and Apartheid is a new headache remedy
the populace, for the most part, are resigned “duct tape on the snooze button mode” and are sleeping through any sort of consciousness activation.
The rule of law is long dead as is any semblance of equal justice for all.
Mr,Swartz was targeted by the feds so as to provide an entry to Anynomous. Mr. Swartz was being groomed as an informant.
Totally agree with Hugh. There is a clear division of the power to be on on side and the, especially, young generation comfortable with both the technology and the concept of freedom on the other side. The government, especially DOJ under Holder’s class system, will not allow freedom to riegn in the daily life of the non rich. Resources, be it scientific publication, are owned by the rich and their use by the non rich is, therefore, criminal.
DOJ also demonstrates ignorance of todays technology and its implication. They still see the young guys grabbing donuts from the counter at the corner donut shop. The Internet and its related technologies changed the concept of ownership with DOJ failing to grow up from the McCarty era.
Why is the Secret Service involved in this? They’re supposed to investigate financial crimes.
Follow the money.
The FBI investigated Swartz for downloading a bunch of PACER files including court opinions and court filings. State the names of the multinational publishing companies that earn enormous sums for taking this same public information and making it available on proprietary databases?
The JSTOR scientific articles are published in print and on-line in very epxensive journals owned by a few very large multinational publishing companies. Most of the articles are the result of research by public institutions or public grants. Name these multinational publishing companies.
Join the sets of the answers to one and two above.
Research the political contributions by these companies.
Research contacts between these companies and federal judges who oversee access and pricing thereof to the court opinions and court files.
Why was the GPO behind the FBI investigation of Swartz, when the data came from the judiciary Pacer database?
Identify revolving door justice department officials who after leaving the justice department obtained significant positions with said companies.
JSTOR refused to press charges against Aaron and wanted the case dropped. There was no copyright violation. This was the DOJ on its own, pressuring MIT.
The FBI investigation of the Pacer case was closed years earlier.
Yes? I think.
Yes? What do you mean by “yes”?
You do understand, yes, that there is big business in “publishing” government published and financed documents.
Anyway, answer the questions posed.
And tell me, yes: who was pressing DOJ to terrorize Swartz and anoyone else who has the temerity to take these large collections of public information and download them wholesale so that others may provide the search and indexing to make them avaiable to the public in a variety of formats and using sophisticated searching/artificial intelligence to find information.
They’ve been answered elsewhere. I’ve posted this repeatedly. All Swartz did at most was exploit loopholes, see:
Sorry, I read your link. The questions are not answered.
Did not see the names of the multi-national publishing companies (British, Dutch, German, Canandian, and US) that see their business model threatened by the kinds of things Swartz was doing.
Maybe I missed it – MIT and JSTOR are not to whom I refer – they are tolerated because they provide info piece by piece in single coke bottles from soda machines and do not distribute wholesale.
You are choosing to be obtuse.
JSTOR allows its database to be used free of charge by many libraries. Thats’ because it is ultimately based on information that is in the public domain, court filings.
This has nada to do with business models that involve copyrighted information.
In all due respect, the subject is made to be obtuse and I definitely am not being obtuse.
First, you cannot disregard Pacer – which first initiated the FBI investigation against Swartz and then he had become a target. The library access to Pacer was a palliative to academics and naive journalist – so the federal courts could claim there was free access to the Pacer database – as long as you could find one of the few participating library site and could get to the site. How would that help a night owl as your are?
The underlying issue has to do with private companies converting public data to private use.
So, name the private publishers who would have cheered on the government efforts against Swartz and only shed crocodile tears as to his demise, if they even did that. Join the sets. Contact me off-line if you wish.
And, the federal courts are still charging for access to Pacer – though RECAP is driving them nuts.
Further to my comments, see today’s editorial in the New York Times:
We Paid for the Research, So Let’s See It
Published: February 25, 2013
Too bad they do not also ask for free Pacer!!!!
Man that warrant is such BS. It is entirely made out of unsubstantiated hearsay.
This agent witnessed nothing. He talked to no one that witnessed anything. He probably doesn’t even know the name of the party he collected the log of the network traffic.
This rubber stamping of defective warrants happens all day every day.
robosigning of warrants is what we have here.
One more comment while I’m PO’d.
ANYONE can access JSTOR for free. Just get a Boston Public Library card. it’s open to residents and non-residents . Even via the mail. Once you get yours. Log in to JSTOR via the BPL webpage and DL to your hearts content.
This case was a joke.
What we’re seeing is the result of the total financialization/Wall-Streetification/plutocratization of everything. Mortgages are turned into cesspools of robosigning, roboloans, robofraud and robobailouts of the 0.1%. Public schools are turned into for-profit test-mills. The police are turned into agents of the for-profit carceral-surveillance economy. Healthcare turns into subsidies for mega-greedy insurers and Big Pharma. And now the reading of books is criminalized in order to fatten up yet another parasitic, brain-destroying pigopoly.
True story: Aaron was hounded to his death (35 years in Federal jail is no joke) for the crime of reading a public library book. Because that’s what JSTOR is, a non-profit public library.
RIP, Aaron. You will not be forgotten. We will remember you as the digital Mohamed Bouazizi. We will contine to resist, to create, to innovate, and to fight. The time has come for the democracy of the 7 billion to override the plutocracy of the 700,000.
“the only thing that might be illegal here (depending on copyright!) is downloading scientific journals and uploading them to file sharing networks.”
Even that might not be illegal. Even before internet became available, students (and professors) have been going to libraries and spending loads of coins to photocopy Journal articles for studying and sharing.
The DoJ is one useless goon-squad. The criminals running the banks are the biggest threat to the state since the Soviet-Union — no, since the Civil War, and the DoJ wastes its time raiding the homes of hippies hackers who downloaded too many files.
The response to this is very clear. The entire team responsible for the Aaron Schwartz investigation should be immediately laid-off. They clearly have no useful work to do, or else are unable to perform any. Let alone, they will simply make mischief as they did in this case.
So fire the entire office. All of them. The DoJ is increasingly little more than an expensive welfare harem, stocked with the work-shy and the incompetent. It’s the perfect place to make some savings.
Yves, I forgive you in advance if you want to trash this as being too speculative or inflammatory an interjection into the finest set of comments I can recall, anywhere, but . . .
The very first thing I thought when I heard of Aaron’s suicide was “He is way too smart to have hanged himself”. Even I know several far better ways to go if that time ever comes. Doubters might also want to see his explanation of his role in the demise of SOPA/PIPA, and his wonderment that even at the last minute, “We won” with people power. Having experienced that kind of miracle once, why kill yourself (clumsily, inexpertly) when the next battle has barely begun? http://www.youtube.com/watch?v=Fgh2dFngFsg
I place Aaron in the same category as Dr David Kelly, who also died (officially) from a couple of suicide methods that no doctor would ever consider, but that provided headline-deep cover for the death. Both individuals were inconveniences to power who had to be removed.
Worst of all, from the authorities’ viewpoint, Aaron could have inspired and led a generation.