MIT, JSTOR file motions delaying FOIA release of Swartz documents

On Thursday, July 18, MIT filed a motion intervening in the Freedom of Information Act (FOIA) lawsuit by Wired editor Kevin Poulsen against the U.S. Department of Homeland Security, filed on April 12. Poulsen had requested the release of any Secret Service documents regarding the late internet activist Aaron Swartz, who committed suicide in January following a federal indictment in July 2011 for using MIT’s network to download millions of JSTOR documents. Filed in the U.S. District Court of Washington, D.C., MIT’s motion asked the court to allow MIT to review and propose redactions, and will delay the release of the documents. JSTOR filed a similar motion on Friday.

The motions are similar to MIT and JSTOR’s March 29 requests that information including the names of employees be redacted, which U.S. District Judge Nathaniel M. Gorton’s May 13, 2013 order in U.S. v. Swartz agreed with.

On July 5, the court ordered the prompt release of all documents that had been gathered by the Secret Service and the production of any more documents it locates “on a rolling basis.” The first set of Swartz’s records were to be released Friday, July 19, the government informed Poulsen’s lawyers, but the process has been delayed by MIT’s and JSTOR’s motions. The plaintiff and defendant must each file a notice addressing the issues raised by MIT and JSTOR’s motions by noon on July 22. All parties involved (including JSTOR and MIT) will have an on-the-record telephone conference on July 23 at 2 p.m. As of publication time, MIT’s News Office has not yet explained the timing of the motion, which was filed one day before the planned release of the first batch of records.

MIT cites “the safety of its employees and security of its networks” as the primary concern in the release of these documents. As evidence, MIT’s motion refers to several incidents on campus following Swartz’s suicide on Jan. 11, including cyberattacks, a gunman hoax from an unidentified caller, and “individual employees believed to have been involved in the Swartz matter … [receiving] repeated threatening communications.”

The Tech received a letter from President L. Rafael Reif, responding to concerns that MIT is attempting to block the release of the Swartz documents. “We are simply asking for the opportunity to look at them carefully,” wrote Reif, “so we can be confident that the proper redactions have been made, so that releasing them does not pose a risk to MIT employees who became involved in the case in the course of simply doing their jobs.”

In his article on MIT’s motion, Poulsen writes, “I have never, in fifteen years of reporting, seen a non-governmental party argue for the right to interfere in a Freedom of Information Act release of government documents … It’s saddening to see an academic institution set this precedent.” However, in its filing, MIT cited a number of reverse FOIA cases with intervention by non-governmental parties, including Appleton v. FDA and SafeCard Services v. SEC. (As of the time of publication, Poulsen has not yet responded to The Tech’s requests for clarification.) But the online community has wondered what MIT aims to accomplish with the motion, as “it seems unlikely that MIT will find information redactable under FOIA that hasn’t already been redacted by the Secret Service,” wrote Ed Felten, former Chief Technologist for the Federal Trade Commission, on the Freedom to Tinker blog hosted by Princeton University’s Center for Information Technology Policy.

Within the MIT community, Professor Hal Abelson PhD’73 was charged with reviewing MIT’s involvement in the events leading up to Swartz’s death and producing a public report. That report, originally to be completed “a few weeks” after, is now scheduled to released at the end of the summer.

Peter Smith almost 9 years ago

Intervenors in FOIA cases are typically seeking to block release of information they originally submitted to the government. If MIT is not the submitter of the information, then it has no right under FOIA to see the information before Poulsen, the requester, does. Granting that would almost certainly be unprecedented in a FOIA case.

John A. Hawkinson almost 9 years ago

However, we have the strong expectation that in many cases, MIT is indeed the original submitter of the information.

For instance, in the DHS' position briefing on this, docket paper 19,

they state:

"[The Secret Service] believes that there is a likelihood of overlap between the documents

responsive to Plaintiffs FOIA request and the criminal discovery documents covered

by the Swartz protective order. Given its understanding of the scope and nature of the

Swartz documents, Defendant believes that some of the documents in its first partial

rolling release of records to Plaintiff will contain some of the Swartz discovery

documents that are subject to the Swartz protective order.


Defendant also anticipates that many of the remaining potentially

responsive records which the Secret Service is processing are the same documents

that are subject to the Swartz protective order."