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What Happens After You’re Cancelled

This is a highly personal account of what happens after a social media crowd destroys a life. It includes talk of mental illness, severe pain, trauma, and suicide. Stop now if that’s not for you. Also, it’s long. 


I was folding laundry with my partner one day when I looked up at him and said, “Do you think they’d be happy if I did kill myself?”

He looked at me, and took a long breath, and said, “No.”

“You’re right,” I said, “I know it. Nothing makes them happy.”

Taylor Lorenz, a staff writer at the New York Times told The Stranger: “In internet culture, being canceled is only good for your career. It usually results in going viral, which is default good in today’s broken world.”

I suppose it seems this way because you only see the people who survived it, who stayed in the public mind or their jobs. The rest of us, we cease, unpersoned and exiled. We are not in the observational data set, we are never spoken of when people talk about this mode of human life. To this day, as many articles as the New York Times has published about the phenomenon, never once has anyone mentioned my name.

The second time it happened, the bad time everyone remembers, I got a call in a movie theater. That was where I was when the internet wrecked my career, watching Black Panther, and my body still goes cold when I remember it. Katie Kingsbury called me, just before Killmonger died, just before he said “Bury me in the ocean with my ancestors who jumped from the ships, because they knew death was better than bondage” – I missed that part. As I was walking out, she asked me if I’d tweeted something, and I was confused by it. I said, “That doesn’t sound like me.” It turned out it wasn’t my tweet, it was a nine-year-old retweet of John Perry Barlow, an angry clap back at racists shortly after the first Obama election, and it contained the N word.

In the next hours, people would dig up tweets and display them out of context to paint me as an unrepentant racist and homophobe. I never had a chance, before I got home from the theater I was fired from my new job. The Times never asked me to explain the tweets. By the time the King of Wakanda was landing in Oakland, my life as I had know it was gone.

The only tweet anyone at the Times asked me about (after that initial call) was one where I was angry tweeting criticism of the Times’ coverage of the Michael Brown shooting. It was a tweet saying that I’d make a lot more money as a racist at the New York Time than I was making then, right after they’d published their “Michael Brown was no angel” article. I didn’t stop with the tweet. I wrote a satirical piece making fun of how the Times and other outlets covered Brown’s death and other police shootings, about how no one could be good enough to make the conventional media question the police, called Man Killed by Local Police in the Province of Judea.

I’ve spent a lot of my career weaving in elements of satirical bait-and-switch into my commentary and articles, and plenty of the bait without the switch was on display that day. I realized I couldn’t counter it, not all of it, and really not even a bit of it. No one was listening.

Online crowd stomping someone is like a sealioning of mythic proportions, where the crowd tempts you to think if you could just explain it would be OK, but it’s not true, it’s a lie that fucks with your head, a crowd screaming why are you hitting yourself while also telling you to kill yourself.

It’s not that the crowd used my weaknesses against me, it’s that they used my strengths. My pacifism, my work with weird and marginalized communities, my love of flawed people, my humor, my long thoughts and hopes about complicated moral topics, these were all used to reduce me to nazi sympathizer, a homophobe, a white supremacist.

So many of the things people brought up and threw at me weren’t my mistakes at all, but things I’m proud of, like trying to argue an anon out of making rape jokes at a feminist on Twitter.

And then my colleagues in American journalism did me dirty. They ran with the crowd, releasing fast articles without any more context than Twitter and Facebook, without talking to me or trying to understand what was happening. Not all, but most. Enough that I knew I wouldn’t get work again, that anyone who googled me would not speak to me again. And yes, they’ll complain I didn’t get back to them. But I was nine hours ahead of the west coast and overwhelmed. I had just been fired, I was preparing for spinal surgery, and I needed to sleep.Or at least, I needed to try to sleep.

The New York Times apologized for hiring me, but it would be years before anyone would apologize to me. It would be even more time before I found my anger. But it helped when I did.

You don’t know me, you assholes. You don’t even think that matters. All that matters is the last thing you saw, and feeling like you’re better than other people. You’re like the amnesiac goldfish of self-righteous hatred.  

But then, I also know why they did it, I spent years studying and trying to understand exactly the forces that wrecked me that day. I had written about them, had spoken to the situations in which they arise, had suggested ways of making the internet better. Education, mostly, and creating the cultures you want to see on the net through active moderation, among other things. Maybe someday I’ll be able to write about it again.

That February 2018,  I was in a level of pain hard to fit into words. I was struggling to type, I’d all but lost the use of my left hand and my right was starting to fail too. I had written about the pain the five months before,  but it hadn’t improved since then. That’s what the spinal surgery I was preparing for was supposed to fix. This was the final cut on top many years of agony, physical and emotional. I explained everything as best I could in those days following my firing. I wrote about my philosophy, I wrote about what the Times and the crowd had done to me, the how and the why. Often I wrote by dictating notes into my phone, because typing was so painful and difficult. I hoped someone in journalism would retract their claims about me, but no one did. Regular people did, they still do. Sometimes out of nowhere someone on Twitter will say, I was in the mob, and I’m sorry. Not every article was a hit piece, but mostly they were, and none, not a single one that I could find, ever criticized my writing as racist or homophobic. Just me, on social media, in snippets no one wanted to understand.

Publications I was talking to replied that obviously they couldn’t work with me now. People who knew me apologized quietly, but with a few exceptions, they just felt like if they stood up for me they’d be destroyed by the mob too.

Friends, horrified by what happened to me, retreated from the internet. I found myself comforting them. I’d say the internet was not all bad, it was mostly wonderful, and that I would be OK. The first was true, the second, I still don’t know.

When the chips were down I found out I was mostly alone. It wasn’t the first time I felt that. It wasn’t the first time a crowd came for me, nearly drove me to the point of self-harm.

I’d felt it five years earlier, when the media and public went looking for a bad guy to blame for Aaron’s suicide. There were bad guys, MIT and the prosecution, US Attorneys  Stephen Heymann and Carmin Ortiz, but they were safe behind the walls of institutional power. The crowd came for me for the same  reason Heymann did: because I was powerless and easy to exploit and they wanted blood.

I was at my girlfriend’s flat in London the morning Aaron died. I woke up and opened my laptop to see mails and messages from everyone saying to call them, and that it was about Aaron. I said something like “No, no, what did you do, you didn’t do it no no no” and, of all things, pulled up Wikipedia. There, on the page, was Aaron’s end date. As I recall it, I just rocked and cried and said “no no no you didn’t do it” until I had to explain it to my girlfriend. She fed me and looked after me while I booked my way back to New York and then Chicago for the funeral. I went to a conference and did a presentation on Anonymous. Everyone told me I didn’t have to, including the organizers, but I wanted the distraction. I wanted to go through the motions of a normal life I already knew was never going to be normal again.

I met a filmmaker friend of mine at the conference. He hadn’t known Aaron, but now he was surrounded by people who had, and he wanted to understand more. He did a few interviews with me and other people, and said he thought this might be a short film. I looked him in the eye and said, “this is a feature length film.” He was thoughtful and silent. Later, with the camera rolling, he asked me why so many people cared so much about Aaron, and I said, “He was the internet’s own boy, and the old world killed him.”

That film, Internet’s Own Boy, would be shortlisted for the Oscars.

What I didn’t tell Brian that day was the complicated role I played in Aaron’s prosecution, or the complicated roles we played in each other’s lives. That would come out later, in the movie, and in articles, including my own. I would bring most of it out, but already under attacks from people who wanted someone to suffer for what had happened to Aaron. I’d been on and off in a romantic relationship with Aaron for years, and we had both struggled with depression in that time, even before he was arrested while riding my bike in Cambridge.

We’d gone through his arrest and investigation together. I was so angry at him, though you must understand, not for downloading journal articles. I was angry he hadn’t told me what he was doing. When I was being questioned by the Secret Service they couldn’t believe that I didn’t know, because we were so close. I wanted to pound on the table and explain that if I’d known they would never have. There wouldn’t be a laptop in Evidence, purchased with my credit card, there’d be a smoking crater where the JSTOR server used to be and not a shred of evidence that lead anywhere. Aaron wasn’t that kind of hacker. I, on the other hand, had done plenty of things no one ever caught me for.

My lawyers, who were terrible and sold me down the river, had advised me not to say that to the prosecution. They were probably right about that at least.

Aaron was so angry at me for meeting with them on my lawyers’ advice. He was right, but I didn’t know that. He was angry at me for betraying him, but not the way everyone thinks. I was the only one he told when he was suicidal, which was often during the investigation. One day I blurted it out to his lawyer on a speakerphone call. “Aaron is suicidal,” I told him, but he didn’t respond and Aaron hung up and yelled me that his lawyer wouldn’t care and it didn’t matter. I wouldn’t know that his lawyer had tried to act on that information until after Aaron died.

My life with Aaron started at the same time that my spinal problems started, and started with the loss of control of my hands and daily migraines. Just as my marriage collapsed, my body also started to collpase. In 2008 when the first MRI came back, the specialists explained that I could maybe control symptoms with physical therapy, Botox injections, and cortisone injected into my spinal neck, but that very little could be done for me, and when I had surgery, I’d lose mobility. That I would suffer a decline and my body would fail and that it would be terribly painful. “Maybe,” I was told. “Someone will invent a prosthetic.”

Ten years later, thousands of miles away in a country with more mercy for the ill, I was fired from my job, and waiting for that prosthetic to be inserted into three sections of my cervical spine, all while the crowd was trying to move into my mind.

Recovery was not easy. I had to cross Paris on the metro and take a train home, and it was a shockingly painful experience, even for someone as familiar with pain as I was. For the next weeks, I would patiently get up and reach up on the walls to feel them and push myself along. I’d shuffle my way along the edges of my room, trying to balance, trying to move. I didn’t have adequate pain medication, complained, and then I had too much. I became physically dependent on Fentanyl, and then wrote about the withdrawal.

I handed my Twitter account over to a group of friends for my recovery period, and they tweeted the details of my post-operative condition. “Every time I lose a follower, an angel gets its wings,” I joked with them. I was already retreating from the world, as I had when strangers had spent their time telling me I’d killed my beloved.

The weeks passed. I talked to a few publications, but no one  wanted to be seen with me. I felt like an unperson. My throat would tighten until it felt like I would choke, just sitting there. I was fighting to get my body back, and fighting the memories of being a pariah for all of my childhood. It had all welled up and poured over my psyche after the Times, along with the inadequacy I felt at not being able to save Aaron. I was barely keeping my grip on reality. I still had support on Patreon, which was both shocking and intimidating. I felt like I couldn’t produce, I felt broken down completely, and unsure how to rebuild myself, physically, mentally, or emotionally.

And then, a ray of hope. Out of the blue, a publication I dearly love offered me a column. It sounded like it would be coming home, and I said yes. They told me whom I would talk to next in the process to brought on board, and then there were no more mails. They ghosted me. I wrote and wrote asking for the next steps, and they simply never wrote back. I never learned why.

Some little thing in me snapped after that. It was too much. I fought back thoughts of suicide on a daily basis. I talked them through with friends and my partner, and defanged them, but always temporarily.

I was fighting my worst depression in years, and I was using everything I knew to fight it. I was exercising and doing mental work and trying to manage my sleep, but my PTSD was also out of control. I was dreaming every night of fights with Aaron, Occupy camp evictions, seeing my dead father’s body, being visited by all the people who had died, and sometimes just straight up monsters chasing and killing my people, both alive and dead. It had progressed to hallucinations that lasted up to a few minutes after I’d wake up. I’d bat at the air, fighting demons my mind dreamt of, until I realized what was happening, and stopped. I apologized when I woke up my partner.

When I’d dealt with every self-harming thought as well as I could cognitively, they retreated into urges, a feeling like my body would just act on its own, however I might fight it. I became scared to walk across bridges. I tried to not be alone too much. I hated feeling like a burden, I hated feeling like I couldn’t do or be anything helpful or productive for the world, but I had hung on, until the day came when I couldn’t.

I didn’t trust myself anymore. I walked over to the bus stop, and caught the last bus of the night that would take me to the Emergency Room. When they asked me why I had come, I said I was afraid I was going to hurt myself.

They asked me to sit down and before long had a staff psychiatrist talk to me. He spoke some English, but not well. He asked what had happened, and why I was feeling so bad, and I started to tell him about Twitter and the New York Times. I stopped, realizing that he didn’t understand much about this crazy story and I was going to get the wrong diagnosis if I wasn’t careful. I called my partner, and put him on the phone to explain in French.

I watched the psychiatrist. He was an older man with a trace of corrected cleft palate. This comforted me in ways hard to explain. He’d known pain, and flaws, and problems with society. He couldn’t really understand me or my world, but I knew he could understand the pain of being different, of people being thoughtless. He nodded with the phone to his ear and ask questions, and eventually handed my phone back to me. He suggested I take a bed in the hospital for the night.

My trust was not misplaced. Over the next few days we never had much of a real conversation, but he listened and tried to help.

I was admitted to the psych ward that night. It was not a great experience for me, but it was safe. And more than anything I felt like I’d pulled the emergency cord on my life. I’d stopped the whole train, just to say, I need help, I need something to change. I’m not going to survive this without help. I spent two days there, stabilizing and trying to figure out a long terms plan for care. It didn’t work out. Luxembourg, which had so wonderfully cared for me when it came to my spine, has next to nothing in terms of mental health care options. The only care they would pay for outside of the country was inpatient. A former NHS psychologist who had recently moved to Luxembourg was found to talked to me a few hours while I was in the ward, but there was no option to see her later.

Still, the few hours did help.

I went home two days later, in the strange and liminal mood that comes after you’ve done something that changes everything. Everything was a different color. I wasn’t better, but I had nothing on my to do list but survive.

I went back to America, where I knew I could see providers, but for a lot of money. I passed the hat — and old school gofundme — to pay for a couple months of therapy and a visit with a creative, young, and damn expensive psychiatrist. I walked into his office with a twenty-year history of drugs which either had unlivable side effects or hadn’t worked on my depression and PTSD. He took it, read through it, and said “You’ve taken all the drugs.”

I talked about the night terrors, which I never had before. He prescribed me a hypertension drug, which somehow someone realized controls PTSD related night terrors in overly high doses. I had to ramp up over six weeks, but I did. The night terrors aren’t completely gone, but they’re much reduced, and the hallucinations have almost disappeared. It was the second time a drug had actually helped me mentally, the first being taking Trazodone to help me with lifelong insomnia.

But controlling the wider PTSD and depression symptoms wasn’t working. I sought out more group therapy as well as one-on-one, and started a short term treatment with ketamine in hopes that it would control my depression. I tried everything I could at the beginning of 2019.

It didn’t work. It wasn’t a total failure, my sleeping was better, but I was still struggling to live. I felt like I gave it all I could.

When I came back home everything was quiet, around me, and in my head. I felt allowed to do anything I wanted to get better, what was left? Who could say anything to me? I figured if I wanted to run off to a forest and drop acid to get better, so be it, I was going to do whatever I wanted. I had tried everything. I read the studies, saw so many clinicians, read books, tried apps, even taught myself a fair bit of neurology. I was allowed whatever I wanted at this point. I was allowed to call myself treatment resistant.

I didn’t run off to the forest and drop acid, that was mostly theoretical, I don’t even know how to buy acid. But I felt better thinking I could if I wanted to.

I started a new drug prescribed to me by a pschiatrist, new enough that it had to be brought in from France and wasn’t cover by my national insurance. Maybe it helped, I don’t know. It gave me migraines again, which we tried to control through more Botox and other drugs including heavy duty NSAIDs and triptans.

I let the days go by, mostly. I cooked and helped people where I could, I wrote when I was able. I felt time slipping away with panic again, just as I had when my hands stopped worked and every day was full of physical pain. There were ups and downs, but for a while, it seemed to be getting better. My doctor thought it was the new drug, I was not so sure. Trying to understand this stuff makes the three body problem look like child’s play. Controlling one variable is a fun game researchers play, while clinicians laugh at their theories. In the real world, you still have to throw things at the wall, and hope.

I started declining again. I stopped writing, and hated myself for it. I began reaching for anything — exercising, meditation, but everything just got worse. I went back on sleep medication, and upped my antidepressant, figuring I’ll just live with the migraines. I went looking for more ideas, more research, more anecdotes. The familiar gift of desperation was back, accompanied by the fireworks that heralded 2020.

I am out here on the peculiar edge of human experience: the hate of the crowd, in a peculiar era where the crowd can kill you and you still find yourself untouched, alive, and ill-equipped for this life.

Looking for ideas in one thing after another, I found research about holocaust survivors who, having told their story, started doing better. Their physical and mental health improved after they stopped holding in the stories of what happened and how awful it was. I looked at my blown deadlines, and my loving partner, my hesitant career, and all these secrets I was keeping about how much it hurt to get hated and driven out of my career, and I thought, well, what the hell do I have to lose? So here I am, saying what it’s like to try to rebuild a life after a cancelling, and so far, largely failing.

I’ve been harassed on the internet most of my life, but it has tried to kill me twice, a kind of civic death absent stockades or end dates. It nearly succeeded both times. Some days I’m still shocked by the absurdity of still being alive.

The first piece I was going to write for the Times was about how human proclivities and network math work together to sort us into strange crowds, and how hard they can be to escape from. It’s still here, on this hard drive, almost finished for years. I look at it occasionally, but I can’t find the strength in my fingers and mind to tie up its loose ends. I am one of those loose ends now. Every day is hard.


Thanks to my Patrons on Patreon, who amazingly keep trying with me,

even though I struggle and complain so much.

In Epstein’s Wake: MIT Media Lab, Dirty Money, and Swartz [UPDATE]

[NB: This is definitely not by Marcy; contains some speculative content. Update at bottom. /~Rayne]

MIT Media Lab is in upheaval after the disclosure that its organization accepted financial support from now-deceased pedophile Jeffrey Epstein.

Ethan Zuckerman announced Tuesday he was moving his work out of the MIT Media Lab by the end of May 2020. He’s been a highly-respected director of the MIT Center for Civic Media, a subset of the Media Lab. Zuckerman explained his decision in a post on Medium:

… My logic was simple: the work my group does focuses on social justice and on the inclusion of marginalized individuals and points of view. It’s hard to do that work with a straight face in a place that violated its own values so clearly in working with Epstein and in disguising that relationship. …

His moral and ethical clarity deserves applause; Zuckerman stands out against the highly compromised tech sector, in both academia and the private sector.

While his announcement was as upbeat as it could possibly be considering the circumstances, a faint sense of betrayal leaks through. It must have been painful to learn one’s boss has undermined their work so badly they have no choice but to leave, even if one enjoys their workplace and their boss.

Joi Ito, director of the MIT Media Lab, offered his apology for his having accepted funding from Epstein through organizations Epstein controlled.

The explanation in Ito’s statement and his apology sound banal and will likely be accepted by the wider technology community given how little reaction there’s been from Silicon Valley.

One glaring problem: Ito is an lawyer, a visiting professor at Harvard. There’s little defense he can offer for taking  dirty money from a convicted human trafficker. It matters not if the money was ‘laundered’ through funds if they were under Epstein’s control. The money mattered more than the appearance, more than Media Lab’s ethics.

Ito still has considerable explaining to do. It won’t be enough fast enough to stem the tide, though.

J. Nathan Mathias, visiting scholar working on the CivilServant project at the Lab, has also announced he is leaving:

As part of our work, CivilServant does research on protecting women and other vulnerable people online from abuse and harassment. I cannot with integrity do that from a place with the kind of relationship that the Media Lab has had with Epstein. It’s that simple.

Epstein’s money didn’t directly fund CivilServant yet any of his dirty money funded the Media Lab it supported the infrastructure for CivilServant.

There will be more departures. Worse, there will be people who can’t leave, trapped by circumstance. Epstein’s poisonous reach continues beyond the grave.

~ ~ ~

When I read that Zuckerman was leaving MIT Media Lab, it occurred to me there was a possible intersection between MIT, law enforcement, and another activist who lived their values defending the public’s interest.

Aaron Swartz.

The government was ridiculously ham fisted in its prosecution of Swartz for downloading material from MIT for the purpose of liberating taxpayer-funded information. The excessive prosecution is believed to have pushed Swartz to commit suicide.

What could possibly have driven the federal government to react so intensely to Swartz’s efforts? One might even say the prosecution was in diametric intensity to the prosecution of Jeffrey Epstein a few years earlier.

Why was Swartz hammered by the feds for attempting to release publicly-funded material while Epstein got a slap on the hands — besides the obvious fact women and girls are not valued in this society as much as information is?

At the time I wondered whether it was research materials that might pose a threat to the existing stranglehold of fossil fuel industries. There was certainly enough money in that.

But in retrospect, seeing how Epstein made a concerted effort to inveigle himself into science and technology by way of investment, noting that researchers were among the compromised serviced by Epstein’s underage sex slaves, was it really research that Epstein tried to access?

What might be the overlap between Epstein’s outreach and the DOJ with regard to MIT and to Swartz’s activism?

Is it possible that something else besides scientific research might have interested both Epstein and the federal government, incurring the wrath of the latter?

I can’t help but wonder if Swartz’s work to liberate federal court archive Public Access to Electronic Court Records (PACER) documents might have been that something else.

In 2008, Carl Malamud of Public.Resource.org worked with Swartz, receiving what PACER documents had been downloaded from behind PACER’s pricey paywall.

Upon reading the downloaded content they found court documents rife with privacy violations, including

“names of minor children, names of informants, medical records, mental health records, financial records, tens of thousands of social security numbers.”

Malamud said they contacted

“Chief Judges of 31 District Courts … They redacted those documents and they yelled at the lawyers that filed them … The Judicial Conference changed their privacy rules. … [To] the bureaucrats who ran the Administrative Office of the United States Courts … we were thieves that took $1.6 million of their property. So they called the FBI … [The FBI] found nothing wrong …”

Was the harassment-by-excessive-prosecution intended to stop Swartz and Malamud from exposing any more confidential information exposed in federal prosecutions, shielded from the public by nothing more than a cost-prohibitive per page charge of eight cents?

Would politically-toxic sweetheart deals like the DOJ offered Epstein have been among those with privacy violations and poorly-/non-redacted confidential information?

Or given Epstein’s long relationship with senior members of MIT Media Lab, was Swartz cutting into someone’s turf by liberating data which might otherwise be salable — legally or illegally — if closely held?

~ ~ ~

Putting aside speculation, several things need to be dealt with immediately to remedy the mess post-Epstein.

First, all entities receiving public funding which also received contributions from Epstein-controlled funds must make full disclosure — ditto nonprofits which operate as 501(c)3 entities paying no taxes, like Epstein’s shady Gratitude America, Ltd. Who in each organization was approached, when, how did Epstein communicate his interest in funding their work, how were contributions made, and did any persons affiliated with the entities travel with, to/from an Epstein-controlled venue or Epstein-funded event? Everything these entities do is suspect until they are fully transparent.

It would be in the best interest of affected entities to make disclosures immediately; the court-ordered release of sealed documents from Virginia Giuffre’s defamation lawsuit against Epstein’s alleged procurer Ghislaine Maxwell is not yet complete. Only a portion has been published; failing to make disclosures ahead of the release has not helped Media Lab’s credibility. Nor has this:

MIT declined to comment on the money it received. “While donors, including foundations, may confirm their contributions to the Institute, MIT does not typically comment on the details of gifts or gift agreements,” MIT spokesperson Kimberly Allen told BuzzFeed News by email.

Second, in the case of MIT Media Labs in particular, a  complete narrative history and timeline of the Lab’s origin, work, and funding since it was launched is necessary. There isn’t one that I can find right now — not at the organization’s website, not even on Wikipedia. This lack of transparency is wretched hypocrisy considering the grief members of the Lab expressed upon Swartz’s death. Media Lab’s site Search feature offering content by range or years is inadequate and must be supplemented.

It’s not clear based on publicly available information what Marvin Minsky‘s exact role was and when with the Lab though he is referred to as a founder. Minsky, who died in 2016, is among those Virginia Giuffre has accused of sexual abuse. What effect including financial contributions did Epstein have on MIT Media Lab through his relationship with Minsky?

As Evgeny Morozov found when combing through papers, Epstein’s money could have been present as early as the Lab’s inception. Why can’t the public see this history readily, let alone the researchers, staff, students working in the Media Lab?

Even the work MIT Media Lab encompasses is not shared openly with the public. Mathias’ project CivilServant isn’t listed under Research — it can only be found through the Lab’s Search feature. How can the public learn what may have been shaped by Epstein’s funding if they can’t even see what the Lab is working on?

Third, Swartz’s work toward an Open Access Movement outlined in his Guerrilla Open Access Manifesto remains undone.

The effect of closed/limited access to publicly-funded information may be killing us and our planet. This can’t be stressed enough, based on one example from Malamud’s recollection:

… The last time Aaron had downloaded large numbers of journal articles was in 2008, when he downloaded 441,170 law review articles from Westlaw, a legal search service. He was trying to expose the practice of corporations such as Exxon funding a practice known as “for-litigation research,” which consisted of lucrative stipends given to law professors who in turn produced articles penned specifically so they could be cited in ongoing litigation. In the case of Exxon, they were trying to reduce their $5 billion in punitive damages from the Exxon Valdez Oil Spill. Aaron didn’t release any of the articles he downloaded, but the research he did was published in 2010 in a seminal article in the Stanford Law Review that exposed these ethically questionable practices in the legal academy. …

If Exxon did this for the Valdez Oil Spill, have they also done this with regard to climate change-related documents since the late 1980s?

Why isn’t this kind of work protecting the public’s interest against the malign use of corruptly-controlled data one of the Lab’s research programs?

Open access, too, must apply to MIT Media Labs. It must be as transparent as Swartz would have wished it to be.

You have to wonder how different the course of technology would have been as well as history had open access been baked into publicly-funded research at MIT Media Lab from the beginning.

UPDATE — 9:00 AM EDT 23-AUG-2019 —

Keep an eye on Evgeny Morozov’s Twitter feed as he’s been sharing more material on MIT Media Lab and Jeffrey Epstein.

Like this thread in progress by Media Lab fellow Sarah Szalavitz, who had warned against taking Epstein’s money. Alan Dershowitz pops up in that thread.

Note also community member foggycoast’s comment in which they share quite a few resources to help flesh out MIT Media Lab’s early years as well as Aaron Swartz’s papers.

I’d like to hear from more women who worked at Media Lab because I’m sure they won’t be as blind to predatory behavior as men have been. But then this asks people with less social capital, including some potential victims, to do the work of exposing this hidden form of corruption.

In Subpoenaing Chelsea Manning, the Government Picks a Likely Needless Fight with the Transparency Community Again

I’m bumping this post from earlier in the week. After refusing to answer questions before the grand jury under a grant of immunity, the Judge in this matter, Claude Hilton, held Chelsea Manning in contempt. She has been booked into the Alexandria jail until she either answers the questions or the grand jury expires. 

Here’s an interview Manning did just before going in for her contempt hearing. 

As NYT first reported, a grand jury in EDVA has subpoenaed Chelsea Manning to testify. She has said she’ll fight the subpoena.

Ms. Manning, who provided a copy of the subpoena to The New York Times, said that her legal team would file a motion on Friday to quash it, arguing that it would violate her constitutional rights to force her to appear. She declined to say whether she would cooperate if that failed.

“Given what is going on, I am opposing this,” she said. “I want to be very forthright I have been subpoenaed. I don’t know the parameters of the subpoena apart from that I am expected to appear. I don’t know what I’m going to be asked.”

The WaPo adds details about a grand jury appearance last year by David House. Notably, he appears to have been asked about the Iraq and Afghan war logs, not the State department cables that have been more central to public reporting based off WikiLeaks releases.

Last July, computer expert David House, who befriended Manning in 2010 at a hacker space in Boston he founded, testified for 90 minutes before the grand jury. In an interview, House said he met the WikiLeaks founder in January 2011 while Assange was under house arrest at Ellingham Hall, a manor house 120 miles northeast of London. Assange was fighting an extradition request by Sweden, where he faced an inquiry into allegations of sexual assault.

Assange asked House to help run political operations for WikiLeaks in the United States. “Specifically, he wanted me to help achieve favorable press for Chelsea Manning,” he said.

House, who testified in exchange for immunity, said the grand jury was interested in his relationship with Assange. “They wanted full insight into WikiLeaks, what its goals were and why I was associated with it,” he said. “They wanted explanations of why certain things occurred and how they occurred. . . . It was all related to disclosures around the war logs.”

The WaPo also argues that Manning will have a tough time fighting this subpoena, which is probably right, though I’m not sure how her legal exposure works given the commutation. She may have a real basis to challenge the subpoena (or at least invoke the Fifth) based off a double jeopardy claim.

Setting aside the legal questions though, I think this subpoena raises real tactical ones. Unless the government believes they need to show a newly-understood pattern of behavior on the part of WikiLeaks dating to before the time Julian Assange took refuge in Ecuador’s embassy as part of a bid to boot him, I think this move is likely to backfire, even from the most hawkish government perspective.

Subpoenaing people for stuff that happened nine years ago, when WikiLeaks’ actions are more immediately suspect in the context of the Vault 7 releases, only makes sense if prosecutors are pursuing some new theory of criminal activity. Contra what Steve Vladeck says to the WaPo (that Assange’s charges last year may be about a 10 year statute of limitations tied to the Espionage Act), prosecutors may be pursuing a conspiracy charge that has continued to more recent years, of which the 2009 actions were the first overt acts (which would also toll the statutes of limitation).

But it’s not just the US government that appears to have a new understanding of WikiLeaks’ actions. So do people who have been involved with the organization over the years, particularly in the wake of WikiLeaks’ 2016 efforts to help Russia elect Donald Trump. The public reversals on supporting Assange from Xeni Jardin, Barrett Brown, and Emma Best have been accompanied by a whole lot of reporting (some of it obviously based on leaks of communications from other former insiders) that lay out activities that go beyond the passive receipt of public interest documents and subsequent publication of them. More will surely be coming.

What journalists and activists are presenting about WikiLeaks doesn’t necessarily get the government beyond a First Amendment defense — certainly not one that might put a lot of respectable investigative reporting at risk. But it does undermine Assange’s claims to be a mere publisher.

And unless there’s a really good legal reason for the government to pursue its own of evolving theory of WikiLeaks’ activities, it doesn’t make sense to rush where former WikiLeaks supporters are headed on their own. In virtually all venues, activists’ reversed understanding of WikiLeaks is bound to have more credibility (and almost certainly more nuanced understanding) than anything the government can offer. Indeed, that would likely be especially true, internationally, in discussions of Assange’s asylum claim.

A charge against Assange in conjunction with Vault 7 or the 2016 election operation might accelerate that process, without foreclosing the government’s opportunity to present any evolved understanding of WikiLeaks’ role in the future (especially if tied to conspiracy charges including the 2016 and 2017 activities).

But getting into a subpoena fight with Chelsea Manning is likely to have the opposite effect.

That’s true, in part, because post-commutation a lot of people worry about the impact renewed pressure from the government against Manning will have, regardless of the legal soundness of it. The government wanted Aaron Swartz to become an informant when they ratcheted up the pressure on him between 2011 and 2013. They didn’t get that information. And his suicide has become a key symbol of the reasons to distrust law enforcement and its ham-handed legal tactics.

There’s even good reason to believe history will likely eventually show that FBI’s use of Sabu as an informant likely didn’t get them what they thought they got. And it’s not just Sabu. It is my strong suspicion that we’ll eventually learn that at key moments, the known instincts and habits of the FBI were exploited just as badly as the good faith efforts of transparency activists, even before the Bureau’s bumbling efforts played the perhaps decisive  role in the 2016 election.

We’re at a moment when, amid rising tribalism, both federal law enforcement and the transparency community are actually reassessing. That reassessment is key to being less susceptible to exploitation, on both sides.

But ratcheting up the stakes, as a subpoena of Manning at this moment amounts to, will reverse that trend.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

John Bolton Will Get to Start His Iran War Because Nine Iranians Stole Academic Dissertations

Earlier today, Rod Rosenstein rolled out a dangerously vague indictment of nine Iranians, allegedly tied to the Revolutionary Guard, for hacking hundreds of universities and some private companies and NGOs.

I say it’s dangerously vague because, while it’s clear the Iranians compromised thousands of university professors, it’s not clear precisely what they stole. But it appears that most of data stolen from universities (some privacy companies, government agencies, and NGOs were targeted too) consists of scholarship.

[M]embers of the conspiracy used stolen account credentials and obtained unauthorized access to victim professor accounts, though which they then exfiltrated, or transferred to themselves, academic data and documents from the systems of compromised universities, including, among other things, academic journalist, these, dissertations, and electronic books.

The indictment describes the stolen data benefitting (along with the IRGC) “Iran-based universities.” And it specifies that the hackers sold the information so that Iranians could access US academic online libraries.

Magapaper sold stolen academic resources to customers within Iran, including Iran-based public universities and institutions, and Gigapaper sold a service to customers within Iran whereby purchasing customers could use compromised university professor accounts to directly access the online library systems of particular United States-based and foreign universities.

The indictment claims the Iranians stole “academic data and intellectual property” which cost the affected 144 US universities “$3.4 billion to procure and access.” But that’s reminiscent of the Aaron Swartz case (to which several people have likened this), where the prosecutor justified pursuing Swartz because he had downloaded “intellectual property that cost millions to create,” something like 4.75 million articles and 87 Gigabytes of data (See the extensive discussion about cost and damages in this MIT report.) DOJ accuses the Iranians of stealing 31 terabytes of data.

As I said, this is a dangerously vague indictment. And, from the metadata, it appears that the indictment may be more than a month old. ( h/t z3dster)

There are also not dates on any of the signature lines, so it may be this indictment has just been sitting in a drawer in southern Manhattan, waiting to serve as a casus belli.

Perhaps there was more sensitive data stolen here. Perhaps the professors who got hacked were more selectively targeted than the sheer number of academics targeted — 100,000 got phished, with almost 8,000 responding — suggests.

But absent far more details, this indictment seems to make an international incident out of people in a very closed society trying to access academic information that is readily available here.

I’ve long written about the potential downsides of indicting nation-state hackers, which is effectively what these guys are — particularly the possibility that doing so will invite retaliation against our own official hackers. But in some cases — with the OPM hack, with hacks of national security information, with the Russians who targeted the election — that might make sense.

But indicting nation-state hackers for stealing dissertations?

Update: This confirms what z3dster noted: this thing has been sealed since February 7. Why? And why did it get unsealed the day after Bolton was hired?

MIT Releases Its Own Swartz Investigation After Stalling Release of Secret Service’s

MIT has just released its report on the university’s role in the investigation into Aaron Swartz.

Part of it explains how the Secret Service came to be involved in the investigation.

The MIT Police decided that the situation required expertise in computer crime and forensics, which they did not have. They therefore telephoned the Cambridge Police Department detective who is their normal contact for assistance with computer-related crime activity.19 The Cambridge detective they contacted was a member of the New England Electronic Crimes Task Force.20 When he received the call for assistance from the MIT Police, the detective was working at the Task Force field office in a federal building in Boston, together with other law enforcement officers whose agencies participate in the Task Force. He responded to the call, accompanied by two other Task Force members: a special agent21 of the U.S. Secret Service; and a detective from the Boston Police Department. They arrived at the Building 16 closet around 11:00 a.m.

We note that no one from MIT called the Secret Service. The MIT Police contacted the Cambridge detective by calling him on his individual cell phone. The special agent became involved because he accompanied the Cambridge detective. As a Task Force member, the detective would sometimes respond to calls alone, and sometimes respond in the company of other members of the Task Force. The MIT Police were aware that other members of the Task Force might accompany the detective, and that Task Force members included Secret Service agents.

[snip]

During the morning’s activities in the basement closet, the special agent had asked for whatever electronic records MIT might have on the matter. As it is IS&T’s protocol to obtain approval from MIT’s Office of the General Counsel (OGC) before releasing information or materials to outside law enforcement agencies, IS&T contacted the OGC, which responded that it was appropriate to comply with the agent’s request in view of the fact that law enforcement was conducting an investigation into what was potentially ongoing criminal activity of unknown scope, and it did not appear to OGC that such information would disclose personally identifiable information.

The report also provides this far less convincing description of how an MIT cop just happened to see Swartz close to his home and the Secret Service Agent just happened to be present at the time.

At approximately 2:00 p.m. an MIT Police officer was driving to the Stata garage after his shift in an unmarked police cruiser. He was familiar with the investigation and had been informed by radio that the laptop had been removed from the basement closet. He had seen the January 4 video of the suspect, as well as stills made from the video, and he had a still with him in his cruiser. On Vassar Street, near Massachusetts Avenue, he saw a cyclist pass him heading in the opposite direction. Based upon the stills and video, and given the backpack and clothes the cyclist was wearing, the officer observed that the cyclist matched the description of the suspect from the basement closet. He made a U-turn to follow the cyclist, who turned onto Massachusetts Avenue and proceeded north towards Harvard Square. When the officer reached the cyclist and pulled alongside, he rechecked the still photos that he had in his car and concluded that the cyclist was in fact the person in the photos. He immediately called his department for backup. A second MIT Police officer, accompanied by the special agent, responded by car from the MIT Police station.

This may well be how the federal investigation into Aaron Swartz started and how it happened that the Secret Service immediately took the lead.

But I do find the timing of MIT’s report release rather interesting. After all, just 12 days ago, they successfully moved to prevent the imminent disclosure of the Secret Service’s own reports on the investigation to Wired’s Kevin Poulsen.

Aaron Swartz, Plea Leveraging & The Bordenkircher Problem

CryingJusticeAs Netroots Nation 2013 begins, I want to emphasize one of the best panels (If I do say so) of the event. It is titled: Beyond Aaron’s Law: Reining in Prosecutorial Overreach, and will be hosted by Marcy Wheeler. Joining Marcy will be Aaron Swartz’s attorney, Elliot R. Peters, of Keker & Van Nest LLP in San Francisco, Shayana Kadidal of the Center for Constitutional Rights in New York, and Professor Jonathan Simon of Boalt Hall at Berkeley. The panel goes off at 3:00 pm Saturday June 22.

As a lead in to the panel discussion, I want to address a topic that struck me from the first moment of the tragic loss of Aaron Swartz, the pernicious effect of the late 70’s Supreme Court case of Bordenkircher v. Hayes.

Paul Hayes was a defendant on a rather minor (involved $88.30), but still felonious, bad check charge in Kentucky. But Hayes had a bad prior criminal history with two felony priors. The prosecutor offered Hayes a stipulated five year plea, but flat out threatened Hayes that if he didn’t accept the offer, the prosecution would charge and prosecute under Kentucky’s habitual criminal (three strike) law. Hayes balked, went to trial and was subsequently convicted and sentenced to life in prison under the habitual offender enhancement charge. It was a prosecutorial blackmail threat to coerce a plea, and the prosecutor delivered on his threat.

Hayes appealed to every court imaginable on the theory of “vindictive prosecution” with the prosecutorial blackmail as the underlying premise. Effectively, the argument was if overly harsh charging and punishment is the penalty for a defendant exercising his right to trial, then such constitutes prosecutorial vindictiveness and degrades, if not guts, the defendant’s constitutionally protected right to trial.

Every appellate court along the way declined Hayes’ appeal until the 6th Circuit. The 6th, however, came up with a surprising decision, granting Hayes relief, but under a slightly different theory. The 6th held that if the prosecutor had originally charged Hayes with the habitual offender charge, and then offered to drop it if Hayes pled guilty, that would have been perfectly acceptable; but using it like a bludgeon in plea negotiations once the case was charged was impermissibly vindictive, and therefore unconstitutional.

Then, from the 6th Circuit, the case finally made its way to the Supreme Court of the United States. By that time, Hayes had long been in prison and the prison warden, Bordenkircher, was the nominal appellee in the caption of the case. The Supreme Court, distinguishing another seminal vindictive prosecution case, Blackledge v. Perry, reversed the 6th Circuit and reinstated Hayes’ life sentence.

Blackledge v. Perry is a famous case known in criminal defense circles as the “upping the ante case”. Blackledge was convicted of a misdemeanor and appealed, which in North Carolina at the time meant he would get a new trial in a higher court. The state retaliated by filing the charge as a felony in the higher court, thus “upping the ante”. The Supreme Court in Blackledge held that to Read more

Hailing Carmen Ortiz While Ignoring Several Amendments

Main Justice has a bizarre post suggesting that those who excoriated Carmen Ortiz for her treatment of Aaron Swartz (and Tarek Mehanna and Russ Caswell, though MJ doesn’t name them by name) are now hailing her aggressiveness.

“The criticism lately has been that they’ve overcharged some people and been overly harsh,” Peter Elkann, a Boston defense attorney, said in a recent interview with Reuters. Elkann went on to observe that “no one is going to accuse any prosecutor of making too big a deal out of this case.”

That would be a safe statement, considering that the April 15 bombing killed 3 people and wounded more than 280 others, many of whom lost legs, as it left blood on the street and horrified and infuriated millions of Americans.

Ahem.

Maybe Main Justice doesn’t read this blog, which has twice noted the needless prosecutorial irregularity of Dzhokhar Tsarnaev’s interrogation.

But I would hope that a site covering legal inside baseball has heard of a guy named Erwin Chemerinsky, who seems just as troubled by DOJ’s refusal to comply with Dzhokhar’s reported request for a lawyer as bmaz and I?

It has become increasingly evident that the Justice Department violated the constitutional rights of Boston bombing suspect Dzhokhar Tsarnaev. He apparently was questioned for hours without being given hisMiranda warnings, and the interrogation continued even after he explicitly requested an attorney. It is disturbing that the Justice Department would risk its criminal prosecution by ignoring such basic rules and even more disturbing for what this says as to its view of the Constitution.

Don’t get me wrong. I don’t think Carmen Ortiz made the decision to refuse Dzhokhar a lawyer through 16 hours of interrogation alone. I’m quite certain she did that because that’s the policy — generally and specifically — Obama’s DOJ wants to pursue.

But that’s true of her over-aggressive pursuit of the war on drugs, the war on hackers, and the war on Muslims, too, the wars she was fighting when she took down Aaron Swartz and Tarek Mehanna (and tried to take down Russ Caswell). The other abusive decisions she made all reflect the policy choices of the Obama Administration.

But denying someone his Fifth and Sixth Amendment rights is completely consistent with what we’ve seen Carmen Ortiz do in the past. And while Main Justice appears unphased by it, some of the same people who have noted her prosecutorial aggression in the past are noting it continues here.

Stephen Heymann Involved in Swartz Investigation before Arrest

Ryan Reilly reports that Aaron Swartz’s last attorney, Elliot Peters, filed an Office of Professional Responsibility complaint against Swartz prosecutor Stephen Heymann in January. The complaint covers three things:

  • Delaying the disclosure of an email showing the Secret Service was involved in the investigation from the start and therefore should have gotten a warrant for Swartz’s computer before a month had elapsed
  • Pressuring Swartz to plead guilty with threats of inflated prison time
  • Delaying the disclosure of when Heymann first got involved in the prosecution and hiding other pertinent emails and reports

Reilly discusses the substance of the first item — which pertains to issues I covered in this post on Secret Service’s belatedly disclosed early involvement in the investigation and this post on the six week delay before actually searching Swartz’s computer.

Peters argued that the government failed by waiting more than a month to obtain the warrant. Heymann countered that he couldn’t get a warrant because he didn’t have access to the equipment. But an email in Heymann’s possession, which was written to Heymann himself, showed that assertion to be untrue.

In an email that was not provided to the defense team until the last minute, Michael Picket, a Secret Service agent, wrote to Heymann on Jan. 7, “I am prepared to take custody of the laptop anytime after it has been process for prints or whenever you feel is appropriate.

Reilly’s report (and the complaint) provide more substantiation for Peters’ claim that Heymann waited until after a status conference on whether or not the judge would hold a hearing on the suppression issues to hand over the email. The key complaint against Heymann, then, is that he didn’t turn over a key document until he knew the judge would actually investigate the issues around that document.

But I’m just more interested in the part of the complaint that is current hidden, the context of which is provided in the complaint.

Meanwhile, on December 21, 2012, AUSA Heymann produced yet another, much larger set of documents relevant to Mr. Swartz’s motion to suppress. This voluminous, disorganized production consisted of hundreds of previously-undisclosed emails, as well as hundreds of other documents, including undisclosed investigative reports, photographs, spreadsheets, and screen captures. Many of the newly-disclosed emails and reports further illustrated that the Secret Service was in control of investigating Mr. Swartz, and that AUSA Heymann was himself involved in the investigation even before Mr. Swartz was arrested on January 6, 2011. See, e.g.,

[paragraph-long redaction]

Upon review of the December 21 discovery, it became apparent to use that AUSA Heymann was well aware of the Secret Service’s investigation of Mr. Swartz’s case from its inception. This made AUSA Heymann’s misrepresentation about the Secret Service’s involvement in the seizure of Mr. Swartz’s electronic devices all the more troubling, because the misrepresentation could not have been made accidentally. Rather, because the December 21 documents had never before been disclosed to the defense, Mr. Swartz and his attorneys did not have the opportunity to consider and argue their relevance in Mr. Swartz’s motions to suppress, which had been filed months prior to disclosure.

While DOJ is clearly hiding the most interesting part of this, even this passage is telling. It reveals that:

  • Heymann was involved before January 6
  • DOJ withheld emails, documents, investigative reports, photographs, spreadsheets, and screen captures
  • Heymann was aware of Secret Service’s investigation “from its inception”

The least damning potential issue here is that Heymann was brought into the investigation on January 4, along with the Cambridge police and Secret Service, and that the belatedly disclosed reports showed a great deal of Secret Service investigation that had not been turned over. Given the language used in the complaint and the fact that the Secret Service technically handcuffed Swartz, it also seems to suggest that Secret Service was not just brought into the investigation (as suggested by what we’ve seen so far), but what the lead from the very start.

But there are other far more interesting possibilities which, if true, would explain a lot of questions I’ve had about the investigation. Here are some possibilities — and note, these are just wildarsed guesses:

  • Was Secret Service involved before MIT called the Cambridge police on January 4? Did they (or a contractor like Carnegie Mellon’s CERT team) provide the data flow reports that first identified the location of Swartz’s computer? Are those data flow reports included in the late discovery? Did Secret Service know the identity of Swartz before they conducted the flow, or before they caught him in the network closet? 
  • Did MIT call Secret Service before they called CPD? Did they call Secret Service before January 4, 2011? Did Secret Service call MIT first?
  • Did the photos in the belated discovery include photos of Swartz used to stake out Swartz’s apartment the day he was arrested? Had they already been staking out his apartment?
  • Peters has said DOJ subpoenaed Internet Archive for multiple versions of the Guerilla Open Access Manifesto. That seems to contradict what DOJ told the defense in earlier discovery motions. Were those subpoenaed reports part of the belated discovery?

Aside from these WAGs about what the hidden material might include, there are larger questions about whether they piggy backed an investigation into Swartz onto larger investigations of Cambridge hackers and/or other open access activists. Remember: past statements by the government left open the distinct possibility that they had emails “not relevant to this case.” I wonder whether those were among the emails turned over after DOJ learned the judge would hold a hearing into improprieties of the searches into Swartz.

Those are questions DOJ doesn’t want to answer.

Who Turned over the Google Group Conversations Involving Aaron Swartz?

The legal documents on the investigation into Aaron Swartz show three signs of witnesses cooperating with the prosecution.

Most of the public attention has focused on this detail, which in September 2011 publicly indicated Quinn Norton had been provided immunity to testify before the grand jury.

Promises, rewards, or inducements have been given to witness Erin Quinn Norton. Copies of the letter agreement with her and order of immunity with respect to her grand jury testimony are enclosed on Disk 3.

Norton’s account of her testimony is here.

That same motion to compel discovery reveals that an MIT student IDed Swartz in a photo lineup.

Defendant Aaron Swartz was a subject of an investigative identification procedure used with a witness the government anticipates calling in its case-in-chief involving a photospread documented by MIT Police Detective Boulter. Relevant portions of the police report of Detective Boulter and a copy of the photospread used in the identification procedure are enclosed on Disk 3. In both instances, the name of the identifying MIT student has been redacted to protect the student’s continuing right to privacy at this initial stage of the case.

There are hints elsewhere that an MIT student gave Swartz some tips on how to get around MIT (someone must have told him about the accessible network closet, after all); I’ve wondered whether this student, or someone else, is who IDed Swartz.

Finally, a discovery motion dating to June 2012 reveals there are personal communications involving him, including both emails and Googlegroup conversations.

Swartz has received in discovery internet memoranda and chats purporting to be from him. For example, the discovery contains a number of chats on googlegroups.com which contain entries which facially indicate that Swartz was a participant in the communications. The discovery also contains a number of emails which on their faces indicate that they were either to or from Swartz. Swartz requires the additional information requested – the source of these statements and the procedure used by the government to obtain them – to enable him to move to suppress such statements if grounds exist to do so, which he cannot determine without the requested information.

And in response to Swartz’ motion for the source of the communications involving him, the government said everything was either turned over willingly or accessed from a public site. It also said it would not turn over the identity of the people who had turned it over because that would identify its witnesses before it had to. Read more

Quinn Norton’s Testimony

The docket of Aaron Swartz’ prosecution made it clear that Quinn Norton, Swartz’ ex-girlfriend, testified with immunity. It also made it clear that someone — or some people — handed over communications, including LISTSERVs, to DOJ. [See update]

In the Atlantic, she provides her side of the story. While it includes a range of useful details, the most significant revelation is that — she believes — she was the first to alert Prosecutor Stephen Heymann to the Guerilla Open Manifesto.

Steve asked if there was anything I knew of to suggest why Aaron would do this, or what he thought about academic journals. I cast around trying to think of something, something that made sense to them, when Aaron had just gathered these datasets for years, the way some people collect coins or cards or stamps.

I mentioned a blog post. It was a two-year-old public post on Raw Thought, Aaron’s blog. It had been fairly widely picked up by other blogs. I couldn’t imagine that these people who had just claimed to have read everything I’d ever written had never looked at their target’s blog, which appeared in his FBI file, or searched for what he thought about “open access” They hadn’t.

So this is where I was profoundly foolish. I told them about the Guerrilla Open Access Manifesto. And in doing so, Aaron would explain to me later (and reporters would confirm), I made everything worse. This is what I must live with.

I opened up a new front for their cruelty. Four months into the investigation, they had finally found their reason to do it. The manifesto, the prosecutors claimed, showed Aaron’s intent to distribute the JSTOR documents widely. And I had told them about it. It was beyond my understanding that these people could pick through his life, threaten his friends, tear through our digital history together, raid his house, surveil him, and never actually read his blog. But that seemed to be the fact of it.

I’ll come back to this Manifesto; I think people keep forgetting that almost all of what it espouses is legal. That while the government treated it as a Rosetta Stone, it didn’t do all they claimed it did.

But before I do that, consider the terms of Norton’s testimony. She was first interviewed without counsel, then served a subpoena, in San Francisco.

They said they were from the Secret Service and that they wanted to ask me a few questions. Shocked and unsure of myself, I let them in to talk to me. One should never, ever do this.

They asked about Aaron, I told them I didn’t know anything. They pointed out that he’d called me, and asked what he told me. I told them I hadn’t asked anything about his arrest, and they were incredulous.

Eventually I ran out of things to tell them, and they produced the real reason for their visit: a subpoena.

At this point, Norton would have been locked into the testimony she gave the Secret Service — including her claim that when Swartz called her to help arrange bail after he was arrested, he didn’t tell her why he had been arrested — or risk false statement charges. (I’m not saying she didn’t tell the truth, just that interviews without counsel can prove sticky going forward.)

In addition, in the guise of seeking her communications with Swartz, the Feds were getting close to her computer, with all her reporting on it.

As strange as it seems now, when I was first subpoenaed, Aaron was more worried about me than him, and both of us were worried about Ada, my seven-year-old daughter. She was the light of both of our lives, and we wanted to make sure none of this would touch her. The problem was my computer. It contained interviews and communications with confidential sources for stories going back five years. The subpoena didn’t actually call for my computer, but materials on my computer. Jose and Adam implied that if the prosecutor didn’t think I was being honest, he might move against me, seize things.

And if the prosecutor took my computer, I would have to go to jail rather than turn over my password.

Norton had been reporting on a range of hacker culture, including Anonymous and WikiLeaks. So while the subpoena only mentioned CFAA and wire fraud violations (see page 4), I can see why she — and the lawyers she first got, who didn’t challenge the subpoena as a violation of DOJ’s rules on subpoenaing journalists — might have been worried. I can see why Swartz would have been worried: by going after Norton, DOJ was going after someone who might have real evidence on the other more serious crimes they were trying to investigate. And by going after her, they may well have been trying to tie Swartz, by association, to that blacker hat hacker culture.

They eventually talked her into taking an immunity deal.

They told me Steve wanted to meet me, and they wanted me to meet him. They wanted to set up something called a proffer — a kind of chat with the prosecution. Steve offered me a “Queen for a day” letter, granting me immunity so that the government couldn’t use anything I said during the session against me in a criminal prosecution.

[snip]

I was outraged and disturbed. I didn’t want a deal, I didn’t want immunity, I just wanted to sit down and talk about the whole terrible business, to tell them why this case wasn’t worth their time, and Aaron didn’t deserve their attention. I didn’t need a deal, and in fact, given that I had nothing to offer the government’s case, I didn’t think I even qualified for it.

I asked my lawyers to refuse, and we fought about it, repeatedly. They brought up things from my past that could be used against me; not criminal behavior per se, even they admitted, but they wanted me to have immunity. I had a terrible headache, and eventually gave in.

And in fact, that appears to have been how Heymann looked at Norton. In the proffer session, they described Norton as “being connected to hackers.”

They said I must have known something because I was connected with hackers. They knew this, they told me, because they’d read everything I’d ever written online.

This, then, is the background to why she testified. She was a broke single mother, relying on pro bono lawyers who had probably been warned about Norton’s purported ties with hackers, under a tremendous amount of stress.

I’ve long noted that Swartz’ story, awful as it is, is in some ways far better than what most people experience with prosecution, because he had the financial wherewithal, at least at first, to fight back. Norton did not.

One thing that’s not clear is what would have happened if these first lawyers had complained about what amounted to a very broad subpoena to a journalist.

I found out it was DOJ policy to subpoena journalists last, yet I had been subpoenaed first. Jose didn’t seem to know that the journalist rules might apply to my hard drive, despite being a former federal prosecutor.

Norton started to pursue these questions only after she had gotten new counsel. It’s not clear it would have made any difference. Aside from the fact that they were demanding stuff partly outside of her journalistic work (the LISTSERVs presumably would overlap her personal relationship with Swartz and her work), by the end of the year DOJ would formalize a policy that offered freelance journalists and bloggers almost zero protection as journalists. Norton didn’t have — and still doesn’t — the institutional affiliation and the  million dollars to fight a subpoena that association with the NYT would have brought.

I am, however, curious whether her first lawyers discussed this, because it’s pretty clear DOJ doesn’t believe any journalist with ties to hacker culture, as Norton has, counts as a journalist. It would have been nice to test that belief legally.

Also note: the very first thing the subpoena asked for was any computers Swartz may have given Norton.

All computers, hard drives, USB drives, DVDs, CDs and other electronic and optical Storage devices currently or previously owned 0r possessed by Aaron Swartz at any time from  September l, 2010 to the present. These shall include, without limitation, all computers and hard drives transferred to you by Aaron Swartz, loaned by you to Aaron Swartz, loaned to you by Aaron Swartz, or stored by or on behalf of Aaron Swartz at any premises over which you have custody or control.

Remember, by that point of the investigation (and to this day, as far as I’ve been able to tell from the public record), DOJ had not found the Macintosh Swartz had used remotely in some of the earlier downloads. I’ve long assumed that Mac was one of Swartz’ personal computers, with a mix of JSTOR files and his personal business (including, just as an example, records from Demand Progress and the SOPA/PIPA fight), though for all we know it could have been someone else’s computer. It appears they believed Norton might have that computer.

So rather than call his lawyer after getting arrested, Swartz called his girlfriend, who just happened to have extensive professional ties to the hackers DOJ would love to nail. The fact that he used his one call to call her made DOJ believe that she could verify Swartz’ motive. And they clearly suspected he had given her the Mac that might tie the JSTOR downloads to larger issues.

I’m still not convinced the focus on the Manifesto is evidence of anything so much as DOJ’s criminalization of open source culture. It incriminates DOJ more than it ever did Swartz.

But (presumably though not definitely in addition to personal communications), that’s what they got by hammering on someone far more vulnerable than Swartz.

Update: Via Twitter, Norton says she did not turn over any LISTSERV material. Someone else must have.