MIT, JSTOR file motions delaying FOIA release

Secret Service estimate at least six months to process all Swartz documents for release

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 the day after.

The documents in question, originally estimated by the Secret Service to be around 8000 pages, apparently actually far exceed that number. (At least one document, the Department of Homeland Security wrote in an Aug. 5 status report, contains over 11,000 pages, and several files appear to be even larger, such that the Secret Service “has of yet been unable to open” them.) In the status report, the Secret Service requested to update the Court every 45 days until all the documents have been processed, which they anticipate will take at least six months. To date, the Secret Service has processed approximately 131 documents, and plans to immediately release the 104 documents that do not mention MIT, JSTOR, or their employees. The release of the 27 remaining already-processed documents is being delayed, pending the court’s decision on MIT and JSTOR’s motions.

The intervening 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 filed a notice addressing the issues raised by MIT and JSTOR’s motions, and all parties involved (including JSTOR and MIT) participated in an on-the-record telephone conference on July 23 at 2 p.m. MIT’s News Office has not responded to requests to explain 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. (Poulsen has not 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’s report on MIT’s involvement in the events prior to Swartz’s death was released on July 30. The Review Panel consisting of Abelson, Peter A. Diamond PhD ’63, Andrew Grosso, and Douglas W. Pfeiffer found no wrongdoing on MIT’s part, but raised questions regarding its policies. The report also redacted the names of some individuals, referring to them by their role or position instead. “Many of these individuals have already been identified in court filings and other public documents,… Even so, we see no need to further erode their personal privacy,” the Review Panel wrote.