March 16, 2018

MIT, JSTOR Filings Delay Release of Swartz FOIA Documents

Aaron Swartz at SOPA rallyCiting concerns about the privacy of employees and the security of their networks, both the Massachusetts Institute of Technology (MIT) and nonprofit JSTOR have filed motions intervening in the Freedom of Information Act (FOIA) lawsuit that seeks to obtain Secret Service documents regarding internet activist Aaron Swartz. Wired editor Kevin Poulsen brought the suit in April.

The motions, which would give MIT and JSTOR the opportunity to review the documents and suggest redactions of descriptions of their employees and networks, will delay the release of the first batch of documents, which were originally scheduled for July 20.

Swartz committed suicide in January. He had been indicted on charges of wire and computer fraud the previous summer for using MIT’s network to download JSTOR documents in bulk.

On July 5, the U.S. District Court of Washington, DC, ordered the prompt release of all documents gathered by the Secret Service, and the production of any more documents it locates “on a rolling basis.” But now MIT’s request, filed on Thursday July 18, and JSTOR’s, which was filed the next day, will mean the release will be delayed at least until August 23. At a hearing held on July 23, U.S. District Court Judge Colleen Kollar-Kotelly set that deadline for legal filings related to MIT and JSTOR’s involvement in the suit, according to Politico.

The Federal government consented to both motions. The government, however, did object to JSTOR’s request that the redactions mirror those in place for the discovery process in the criminal prosecution of Swartz, according to The American Lawyer. Poulsen’s attorney, David Sobel of the Electronic Frontier Foundation, opposed the requests in papers filed July 22.

According to the blog of LegalTimes, Kollar-Kotelly expressed concern about delaying the process, and asked MIT and JSTOR attorneys to assess the viability of a so-called “reverse FOIA,” in which a company or individual sues an agency to block the release of information. That process would also provide more information about whether either group sought to designate any records as confidential when they were disclosed to the government.

“We support the public’s interest in the events surrounding this matter and favor open review and discussion, including public review of the evidence that we provided under subpoena to the United States Attorney’s Office,” Heidi McGregor, vice president, marketing and communications for JSTOR parent ITHAKA, told  LJ. “We also feel strongly the need to protect the privacy and security of our staff and our systems.  A federal judge in Boston has already ruled that these redactions are appropriate, and we believe the same approach should apply to any documents being released in connection with this case.  We will make public our own copies of these documents shortly, and they will reflect the most minimal redactions necessary.  We are simply requesting the opportunity to do the same with the Secret Service files and are prepared to do so quickly.”

It is noteworthy that JSTOR and MIT seem to be in step on this aspect of the case, because their handling of the case against Swartz while he was still alive was very different. JSTOR dropped its charges and urged the government to do the same, while MIT did not take such a position. Hal Abelson, an MIT professor and a founding director of Creative Commons and the Free Software Foundation, has been commissioned to produce a report on MIT’s involvement; originally announced in January with an ETA of “a few weeks”, the report has yet to be released. MIT President L. Rafael Reif says it is “on track” for this summer.

“It seems unlikely that MIT will find information redactable under FOIA that hasn’t already been redacted by the Secret Service,” Ed Felten, Professor of Computer Science and Public Affairs at Princeton University, wrote in response to the filing. “But there are two things that MIT’s filing will more likely achieve. First, it will delay the disclosure of facts about MIT’s role in the Swartz investigation. Second, it will help MIT prepare its public-relations response to whatever is in the documents. MIT is acting like it has something to hide….What I fear most of all is that we will learn that MIT encouraged the U.S. Attorney to behave the way she did.”

Reif released a letter which takes issue with such speculation in the blogosphere and says, “We are not trying to stop the public release of these documents.” He did not address why MIT waited until just before the documents were due to be released to file. While MIT’s filing characterized its intervention as timely, since it was filed less than two weeks after MIT knew of the order to release the documents, Poulsen’s attorney pointed out that MIT and JSTOR were given the opportunity to designate material as confidential when it was first given to the government. MIT did not immediately respond to LJ‘s request for comment.

Citizens for Responsibility and Ethics in Washington raised a broader point. “If third parties are permitted to exercise a veto over what the agency can release, well-funded third parties could stall and tie FOIA litigation up for years, rendering the FOIA an ineffective tool.”

This article has been updated to remove the statement that MIT took legal action against Swartz.

Meredith Schwartz About Meredith Schwartz

Meredith Schwartz ( is Executive Editor of Library Journal.

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