Swartz hid behind helmet, but only after he was already photographed

5365 swartz jan04
Aaron Swartz enters 16-004T on Jan. 4, 2011, face exposed.
Source: U.S. Department of Justice; docket paper 81, Exhibit 13
5366 swartz jan06
Swartz enters 16-004T on Jan. 6, 2011, hiding behind helmet.
Source: U.S. Department of Justice; docket paper 81, Exhibit 14

Swartz hid behind helmet, but only after he was already photographed

On Friday, the government filed its consolidated reply to various motions to suppress evidence in U.S. v. Aaron Swartz. Swartz is being prosecuted for hiding a laptop at MIT and mass downloading millions of journal articles from JSTOR from 2010–2011.

The government’s reply included a panoply of 22 exhibits, which included several photographs of Swartz as he entered the Bldg. 16 telephone closet, as well as pictures of the closet, laptops, etc.

In one photo, from Jan. 4., 2011, Swartz is clearly identifiable.

In another photo, from Jan. 6, 2011, he attempted to cover his face with a bicycle helmet. He was apprehended later that day by the MIT Police.

The government’s reply plausibly argues that many of Swartz’s motions to suppress evidence are without merit. It argues he had no reasonable expectation of privacy in the laptop he left behind unattended on the MIT campus for months, including with respect to its network access logs (DHCP logs).

The government’s reply makes almost no mention of the network flow data cited by Swartz in his motion to suppress — that network flow data would record the precise web sites that Swartz tried to visit, and all connections made by his computer on the network, something much more sensitive and identifiable than DHCP logs. The government refers in passing to network switching data, but does not discuss its special sensitivity.

The government also notes several of Swartz’s suppression requests are moot, because they do not intend to offer the results as evidence. That includes the result of a port scan of his computer, packet capture data, and the result of searching his apartment and office (with search warrants).

Attempt to copy laptop RAM

The government’s filing attempts to justify an attempt that the FBI made to copy the active memory (RAM) of running laptop, without a search warrant.

The government argues that the RAM of Swartz’s computer might provide “decryption passwords,” and that the computer might be impossible to search later, even with a warrant.

As such, the government says, “exigent circumstances” justified their attempt to copy the laptop’s RAM.

Nonetheless, they failed to do so — after opening the laptop they were presented with a logon screen which defeated their attempt to copy the RAM.

Next steps

Swartz will file a reply brief of up to 55 pages in length by Dec. 3, 2012. The case goes to trial on Feb. 4, 2013.

John A. Hawkinson