In a criminal case that may have contributed to the suicide of Internet innovator Aaron Swartz, prosecutors made assertions in court papers that were undercut by an email they only later disclosed to Swartz’s attorney. These revelations were disclosed in federal filings submitted on Friday, the day Swartz died. In an interview with Patterico.com, Swartz’s lawyer described the Government’s arguments as “disingenuous and contrived,” and said that he had intended to use the recently disclosed email to show that the Government’s contentions were false.

THE SUICIDE OF A DEPRESSED BUT BELOVED TECH INNOVATOR

The Tech reports:

Computer activist Aaron H. Swartz committed suicide in New York City yesterday, Jan. 11, according to his uncle, Michael Wolf, in a comment to The Tech. Swartz was 26. “The tragic and heartbreaking information you received is, regrettably, true,” confirmed Swartz’ attorney, Elliot R. Peters of Kecker and Van Nest, in an email to The Tech. Swartz was indicted in July 2011 by a federal grand jury for allegedly downloading millions of documents from JSTOR through the MIT network — using a laptop hidden in a basement network closet in MIT’s Building 16 — with the intent to distribute them. Swartz subsequently moved to Brooklyn, New York, where he then worked for Avaaz Foundation, a nonprofit “global web movement to bring people-powered politics to decision-making everywhere.” Swartz appeared in court on Sept. 24, 2012 and pleaded not guilty.

Swartz appears to have been quite a talented young man:

The accomplished Swartz co-authored the now widely-used RSS 1.0 specification at age 14, founded Infogami which later merged with the popular social news site reddit, and completed a fellowship at Harvard’s Ethics Center Lab on Institutional Corruption. In 2010, he founded DemandProgress.org, a “campaign against the Internet censorship bills SOPA/PIPA.”

Based on Swartz’s history, his downloading of JSTOR documents was based on a philosophical view that information should be freely available. Before the JSTOR case, Swartz had engaged in another mass downloading of documents that existed behind a paywall, from PACER, the federal repository for documents from the federal court system. He used the documents to supplement the archive at RECAP, which seeks to provide federal filings for free, as contrasted with PACER, which charges 8 cents per page.

FAMILY AND FRIENDS BLAME PROSECUTORIAL BULLYING

In a statement, Swartz’s family blamed his suicide on his prosecutors:

Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims. Meanwhile, unlike JSTOR, MIT refused to stand up for Aaron and its own community’s most cherished principles.

Others besides Swartz’s family members have opined that his story is an example of overbearing conduct by prosecutors. On Instapundit, Glenn Reynolds links to a post by Lawrence Lessig titled: The Prosecutor As Bully. Lessig argued that, if the Government’s allegations were true, Swartz’s actions were wrong — perhaps legally wrong, and certainly morally wrong. However, Lessig said:

[T]he outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor’s behavior. From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed. Aaron had literally done nothing in his life “to make money.” He was fortunate Reddit turned out as it did, but from his work building the RSS standard, to his work architecting Creative Commons, to his work liberating public records, to his work building a free public library, to his work supporting Change Congress/FixCongressFirst/Rootstrikers, and then Demand Progress, Aaron was always and only working for (at least his conception of) the public good. He was brilliant, and funny. A kid genius. A soul, a conscience, the source of a question I have asked myself a million times: What would Aaron think? That person is gone today, driven to the edge by what a decent society would only call bullying. I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.

(Emphasis is Lessig’s.)

Swartz’s lawyer, Elliot R. Peters of Keker and Van Nest LLP, echoed these sentiments to me today in an interview. Peters refused to speculate about why Swartz committed suicide. He described Swartz as a “very sensitive and very smart person” who had been “very scared” by the Government prosecution. Peters told me that, in his opinion, the Government had been “awfully unreasonable” in their approach to the case. He said that they insisted that Swartz plead to all 13 felonies. They said that even if Swartz pled guilty, they were going to seek a prison sentence. They told Peters that if the case went to trial and Swartz were convicted, they would seek a prison sentence of 7 to 8 years. They told Peters that they thought the judge would impose that sentence. (Peters told me he didn’t agree; he thought the case was defensible and that even if Swartz lost, Peters didn’t think the judge would have sentenced him to custody time.)

GOVERNMENT REPRESENTATIONS UNDERCUT BY DOCUMENTS LATER DISCLOSED

But the main reason I called Peters was not to talk about Swartz, but about representations made by the Government. Reviewing federal filings on PACER last night, I discovered that, this past Friday — the day Swartz committed suicide — Swartz’s lawyer and the Government both filed documents relating to what Swartz’s lawyer described as a “critical document only recently produced to Swartz by the Government.” The document, an email between the Special Agent in the case and the Assistant U.S. Attorney, appeared to undercut an argument that the Government had made in a response to a motion to suppress filed by Swartz. In the Government’s final filing, they admitted making a factual misstatement in their earlier motion, but argued that the discrepancy regarded only a trivial matter. But Swartz’s attorney told me he believed that the email showed that the Government had made representations to the court that were “disingenuous and contrived.” He believes he could have used the contents of the email to convince the court to suppress key evidence in the case.

The circumstances of Swartz’s arrest

In order to understand the significance of the email, it is necessary to explain more about the allegations in Swartz’s case, and the nature of the arguments made in the suppression motion. The basics are provided in Swartz’s arrest report and the indictment. The indictment alleges that, during a period of time from September 2010 to December 2010, Swartz went to MIT where he used an Acer laptop to “systematically access and rapidly download an extraordinary volume of articles from JSTOR.” MIT officials noticed the volume of downloads and took steps to block the computer’s access to the archive. Each time they blocked Swartz’s access, he took steps to get around the block and download more articles.

On January 4, 2011, Swartz according to the indictment, Swartz “was observed entering the restricted basement network wiring closet to replace an external hard drive attached to his computer.” According to the arrest report, police had discovered in the morning that the closet had been broken into and a laptop had been connected to a networking switch. Police left the laptop in place and set up a camera, which they apparently used to make the observations described in the indictment.

The indictment alleges that Swartz returned two days later to retrieve the computer and download more files. MIT police spotted him and tried to question him, but he fled with a USB drive. According to the arrest report, Swartz was located riding a bicycle nearby. He was apprehended and arrested, and charged by state authorities with breaking and entering. The docket shows that he was indicted in July 2011.

The motion to suppress

This past October, Swartz filed a number of motions to suppress evidence. In one of those motions, which you can read here, Swartz argues that the Government unreasonably delayed in obtaining a warrant to examine the contents of his laptop, hard drive, and USB drive. Swartz cited case law holding that even a seizure based on probable cause can become unconstitutional if the police act with unreasonable delay in securing a necessary warrant to examine the seized items. Swartz specifically cited cases where hard drives were seized, but evidence from them was suppressed because of police delay in obtaining a warrant for the examination of the hard drives. Swartz argued that, in his case, 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.” Swartz argued that the delay was attributable to the Government, as the investigation was “a joint investigation involving the Cambridge Police Department, the United States Secret Service and the MIT Police Department” and that the Special Agent from the Secret Service was in charge of the joint investigation.

The Government responded with several arguments. Many of those arguments are tangential to this post and are described here.

The most questionable part of the Government’s argument comes during the next section, in which the Government argues, in essence, that any delay should be attributed to the state authorities and not the federal government, because the property was in the custody of the state authorities before the warrants were issued:

In yet another aspect, Swartz’s assertion that the Secret Service infringed his possessory interests by delaying in obtaining a search warrant does not quite fit this situation or his legal theory. The Secret Service did not seize his laptop, hard drive, or USB drive on January 6, 2011: the Cambridge Police Department did. Nor did the Secret Service possess this equipment before obtaining the warrants: the Cambridge Police Department did. Thus, the United States did not affect Swartz’s possessory interests in his equipment until it executed warrants. For all the reasons given above, the Cambridge Police Department did not seize or hold onto the equipment impermissibly long. The Cambridge Police Department was supporting a valid investigation and prosecution by the Commonwealth. But if the Court disagrees, then Swartz cannot simply morph allegations that local police held evidence too long in a local prosecution into a claim that federal law enforcement officers did so in a subsequent federal case.

(Emphasis added.)

In essence, the Government is arguing that the federal government can’t be blamed if the state authorities had the laptop for a long time before a warrant was obtained. The feds got a warrant as soon as they had custody over the computer.

Swartz filed a reply brief which responded to certain of the Government’s more tangential arguments. Most important for purposes of this post, Swartz ridiculed the argument that delay in obtaining the warrant was permissible because the Cambridge Police, and not the Secret Service, had custody of the computer:

[T]he Government remarkably suggests the Secret Service cannot be held responsible for its lackadaisical attitude toward seeking a search warrant because the Cambridge Police Department, not the Secret Service, was in possession of the computer equipment during the thirty-four day delay. It is telling that the Government fails to cite a single case in support of this proposition. Accepting this argument would allow one government agency to end-run Fourth Amendment requirements in the easiest manner imaginable–by leaving wrongly seized evidence in the possession of some other, closely cooperating agency. Here, the Secret Service was plainly in charge of the investigation at MIT. It is absurd to suggest that it had no control over the seized computer.

The email

After this response was filed, the Government disclosed an email that suggested that the federal authorities, and specifically the U.S. Attorney handling the case, had authority to take the items and obtain a warrant shortly after Swartz was arrested. Here is a screenshot of the email:

The email is dated January 7, 2011. Note that the Special Agent from the Secret Service tells the Assistant U.S. Attorney that the laptop and hard drive are going to be processed for prints that morning, and adds: “I am prepared to take custody of the laptop anytime after it has been processed for prints or whenever you feel is appropriate.” (My emphasis.) He adds that, to his knowledge, nobody had secured a warrant for the examination of the computer, or the cell phone and flash drive that Swartz possessed when arrested.

The significance of the email

Swartz’s attorney Peters told me that this email undercut the Government’s arguments regarding custody of the evidentiary items. Regarding the Government’s arguments, Peters told me:

I think they were disingenuous and contrived. I intended to prove that they were false.

Swartz filed a supplemental memorandum that described the email as a “critical document only recently produced to Swartz by the Government” that “directly refutes the Government’s Opposition to Swartz’s pending motion to suppress evidence obtained from the laptop, hard drive, and USB drive”:

The newly-disclosed email shows that the Government’s claim that it had no control over the seized equipment until on or shortly before February 9, 2011 is factually inaccurate. Agent Pickett’s email makes clear that the Government had actual control over all the computer hardware at issue as of January 7, 2011—the day after the seizure—and could have taken physical custody of that hardware at any time. Moreover, the email shows that the lead prosecutor in this case not only was aware of this, but was personally directing the Secret Service regarding whether and when to take physical custody of the hardware. Accordingly, this recently-produced email is not merely relevant to the pending motions to suppress, it directly refutes the Government’s excuse for the 34-day delay. It shows that the Government not only had control over the hardware as of January 7, 2011, but was fully aware at that point of the hardware’s evidentiary significance to this prosecution and its need to seek a search warrant. The Government could and should have sought and obtained a warrant promptly at that point. It certainly has no excuse for waiting over a full month to do so.

(My emphasis.)

Did Swartz know about the email?

This supplemental memorandum was filed on Friday, January 11 — the same day Swartz committed suicide. I asked Peters if Swartz knew about the email and he said he did. According to Peters, Swartz was present when the Government disclosed the email to Peters, just after a December court hearing. Peters expressed some irritation that he was given the email after the hearing, saying that it would have been more useful to have it before the hearing had started.

Also on Friday, the Government responded to Swartz’s memorandum. The Assistant U.S. Attorney admitted the prosecutors had previously misstated where the evidence had been kept. However, they argued, it made no difference:

Swartz claims that this contradicts the Government’s representation that “Nor did the Secret Service possess this equipment before obtaining the warrants [in February]; the Cambridge Police Department did.” Government counsel did, indeed, have this chronology slightly wrong. The equipment was held in evidence by the MIT Police (rather than Cambridge Police) from its recovery on January 6th until February 3rd, when it was picked up and transported by SA Pickett and Det. Joseph Murphy to the Cambridge Police (Ex. 1); the laptop and hard drive were fingerprinted by the Cambridge Police on February 10th (Ex. 2); and the Secret Service executed warrants on the Cambridge Police Department taking custody of the evidence on February 25th.

Although the Government admits making a misstatement regarding which department had custody of the evidence, this is not the real significance of the email, as Swartz’s supplemental memorandum makes clear. The greater significance is the fact that the Government argued that the Secret Service should not be blamed for the delay in obtaining a warrant — yet their own internal correspondence, undisclosed until the motions were filed, showed that the federal government had full authority over those items of evidence, even though they were nominally being held in the custody of the state police. The need for a warrant was plain from the outset, and the federal government could have picked up the evidence at any time.

The Government’s response

I sent emails to Scott Garland and Stephen Heymann at the U.S. Attorney’s Office for comment, and received this reply:

I understand that you reached out to AUSA Garland. We want to respect the privacy of the family and do not feel it is appropriate to comment on the case at this time. Thank you,

Christina DiIorio-Sterling

Peters believes that he would have won the motion to suppress based on the newly disclosed email. Reading the briefs, it is impossible to say what the judge would have done. In any event, on the same day that the matter was briefed, Aaron Swartz took his own life — making the issue, as the lawyers say, moot.