On Friday, March 29, MIT filed a legal memorandum to “partially oppose” the March 15 motion by the Estate of Aaron Swartz to publicly release documents related to Swartz’s criminal prosecution. The documents, originally provided to the U.S. Attorney’s Office by MIT for pre-trial discovery, are kept confidential by a Protective Order. According to MIT’s memorandum, the U.S. Attorney’s Office required a Protective Order on the documents beginning November 2011 due to “sensitive information” they contain.
In the filing, MIT argued that it is not opposed to releasing the documents, but first wants to be able to redact names and identifying information of members of the MIT community as well as any information that may expose MIT network vulnerabilities, as MIT President L. Rafael Reif had previously announced in a letter on March 19. In a filing made the same day, JSTOR, the online academic journal library from which Swartz allegedly downloaded millions of documents, also supported the public release of the documents, but also requested the redaction of the names of its employees.
MIT employed several arguments when making its case for redaction. According to the memorandum, “The MIT community has been the subject of threats to personal safety and breaches to its computer network, apparently based on MIT’s involvement in the events relating to Mr. Swartz’s prosecution.”
In his March 19 letter, Reif wrote that MIT plans to release these documents at the same time as Hal Abelson’s report on MIT’s involvement in the investigation, but modifying the Protective Order could override this plan.
MIT noted that the documents were provided under condition of confidentiality. The memorandum stated, “After Mr. Swartz was indicted, the government produced the MIT documents to his defense counsel pursuant to the Protective Order, which provides (1) that the defense could not use MIT’s documents for any purpose other than in the defense of the criminal case, and (2) that such documents were to be destroyed at the end of the criminal case. The criminal case is now over; it was dismissed on January 14, 2013.”
MIT suggested that it would have a “strong argument” to not release the documents at all, pointing out that the only reason Swartz’s attorneys had the documents was as part of a now closed criminal case, following which, the documents should have been destroyed according to the Protective Order. It also claimed that the Swartz Estate does not have standing “to appear in the criminal case to which it is not a party,” which would mean the documents are still MIT’s alone. MIT suggested that it should release the documents on its own terms due to its “commitment to openness,” but that there was no case to remove the Protective Order without regard for its security concerns.
MIT also cited several recent events as examples of its security concerns. It mentioned the allegedly Swartz-related gunman hoax on February 23. It also published public Internet comments, including, “MIT deserves all the harassment they can get. They’re to blame for his death,” and “If the courts will not punish these killers, the people must.” MIT mentioned three separate attacks on the MIT network since Swartz’s death.
The March 15 motion by the Swartz Estate to which MIT’s filing is responding provides several arguments in favor of publishing the documents without redactions. The motions suggests that removing all identifying information would render the documents the meaningless and useless. Swartz’s Estate also said that MIT and JSTOR provided the documents without requesting the Protective Order that was requested by the U.S. Attorney’s office. Additionally, the motion stated that “most of the names and titles that the Government seeks to redact are already publicly known.” Examples of publications in which certain individuals were identified include The Tech and The New York Times.
As reported by The Tech, Congress and media outlets have requested the documents. Swartz’s Estate claims that the public interest in the information outweighs individual privacy concerns.