February 24, 2019

MIT asks to intervene in Swartz FOIA suit

Yesterday MIT filed papers asking to intervene in journalist Kevin Poulsen’s Freedom of Information Act (FOIA) lawsuit seeking the Secret Service’s records of the agency’s investigation of Aaron Swartz. Poulsen had won a court order requiring the Secret Service to turn over its documents about Aaron, who took his own life while facing aggressive criminal prosecution for accessing MIT’s network to download large numbers of academic papers. Now MIT is asking the court for the right to review the documents before they are turned over to Poulsen.

This doesn’t look good for MIT.

One of the biggest open questions about Aaron Swartz’s case is what role MIT might have played in enabling and/or encouraging prosecutors to treat Aaron’s actions as a major offense. The possibility that MIT played an active role in Aaron’s persecution is a point of great concern for many in the tech community, especially in academic circles.

MIT’s filing yesterday said that it wanted to review the Secret Service documents to make sure they don’t contain sensitive MIT information. FOIA (and the court order) require the Secret Service to turn over all documents responsive to Poulsen’s request, but FOIA allows the Secret Service to redact certain enumerated types of information.

What MIT is arguing to the court, as I understand it, is that MIT wants to inspect the documents to make sure that there isn’t redactable information that the Secret Service isn’t trying to redact. But it’s a safe bet that the Secret Service will redact as much as it can—agencies complying reluctantly with FOIA requests always seem to err on the side of over-redaction. It seems unlikely that MIT will find information redactable under FOIA that hasn’t already been redacted by the Secret Service.

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. This is deeply worrying for people like me who think of MIT and American universities more generally as unique and valuable institutions.

What made MIT great is the way it made itself a mecca for the Aaron Swartzes of the world. Over the years, MIT was willing to make investments and take a few risks to build a community devoted to the creation and dissemination of knowledge. If someone broke the rules in a way that didn’t strike at the institution’s core values, they faced consequences that were proportionate and aimed to educate—not a relentless Federal prosecutor threatening decades in prison.

What I fear most of all is that we will learn that MIT encouraged the U.S. Attorney to behave the way she did.

After Aaron’s death, MIT appointed Prof. Hal Abelson to head a special committee to review MIT’s actions. Hal Abelson was a wise choice because he understands the MIT community’s values and has the stature to write a report that is loyal to MIT yet honest about its actions and their consequences.

What MIT did will eventually come to light. Many of us in the tech community are waiting, with fingers crossed, hoping that the truth is not as disappointing as it appears from the limited information we have so far. Regardless of what MIT did, what we want now to see now is an honest discussion of what happened and how to do better in the future.


  1. Kevin Kenny says:

    Calling MIT a ‘mecca’ for the Aaron Swartzes of the world is perhaps an unfortunate turn of phrase. Those who have already been convinced that Mr Swartz was a ‘terrorist’ will see the analogy to the holy city of Islam – and see the turn of phrase as conceding that MIT is a haven for (probably Middle Eastern) terrorists.

  2. This seems optimistic to me. The Secret Service may redact things that it considers sensitive or even merely embarrassing, but its interests and those of MIT do not coincide, so it is quite plausible that there are things the Secret Service would not bother to redact (or even that the Secret Service might want in the public record) that MIT would want redacted. What’s the law on release of ostensibly-proprietary information held in otherwise public records? I can’t imagine that such claims are unreviewable.