UPDATED: EFF: MIT was not "neutral" on Aaron Swartz; actively assisted in his prosecution

The Electronic Frontier Foundation's Legal Director Cindy Cohn writes in detail about the MIT report on its involvement in Aaron Swartz's prosecution. She criticizes MIT's claim to neutrality in the matter, showing the way that the university went to great, voluntary lengths to help the government prosecute Aaron, and eventually siding with the government in motions to keep the evidence that it turned over to the prosecutor admissable. Cohn shows that MIT's likeliest motivation for this was saving face. Ultimately, Cohn says, "MIT's actions in helping the government prosecute Aaron are shameful, and betray the institution's commitment to technologists."

Update: Cohn wrote in to add, "The prosecution turned on whether Aaron's access to JSTOR via the MIT network was 'unauthorized' and MIT had tremendous power over which way that decision went in the case. The report acknowledges this but simply repeats MIT's assertion that it didn't actually realize it without criticism or noting how unreasonable (or not believable) this assertion is. The CFAA isn't unknown or unknowable and the folks handling this are in the General Counsel's office. 'Unauthorized access' is the statutory language. And of course MIT's belief that Aaron's access might be unauthorized (as in violation of MIT's policies or maybe JSTOR's) is why they called the police and why he was arrested at their instigation. The idea that after they called the cops they didn't understand what law might have been broken or why their network openness and policies mattered to that determination, such that they never even volunteered the information or asked the prosecution for its theory or more importantly gave information about this to the defense, just isn't believable."

But based on the report itself, we don't think MIT was actually even "neutral," by any reasonable definition of the word. Apparently MIT assisted the government from the very beginning — offering documents to the prosecution before being subpoenaed and allowing multiple interviews of MIT personnel, including without having counsel present. It did nothing similar for the defense, which it didn't even seriously talk to until June, 2011, five months after Aaron's arrest and then shined on for months at a time thereafter. In a particularly heart-wrenching example, the report notes with mild concern that MIT's general counsel and outside specialist counsel incorrectly assumed the government would give documents MIT provided to the prosecution to the defense in a timely fashion. That's not even true — federal law doesn't require all documents to be turned over, just those deemed exculpatory, material to the defense, or that the government intends to use at trial. MIT's inside or certainly its outside criminal counsel should have known this. But regardless, Aaron's defense counsel fought with the prosecution to obtain even the required disclosures, which were essential to Aaron's defense, up until Aaron's death. The government's gamesmanship with documents greatly increased the pressure on Aaron and MIT couldn't even be bothered to call the defense to check on its faulty assumptions.

Eventually, the report admits that even the semblance of neutrality was abandoned when the defense filed motions to suppress some evidence and had the audacity to criticize MIT's investigative processes. Yet the report just meekly states that the motions "had the effect of aligning MIT's interests more with the prosecution than with the defense." At that point, MIT's counsel actually helped the government respond to the suppression motions and decided to let the government have ongoing access to its employees without counsel present through trial.

Let's be clear: MIT faced no likely consequences from the suppression motions except perhaps a modicum of (perhaps deserved) embarrassment. Even if it bought the unconvincing claims of neutrality before this point, the report should have criticized the university harshly for abandoning its "neutrality" and directly aiding the government in this prosecution.

MIT in Aaron Swartz Case: Not Neutral, Not Leading, Not Standing Up for Technologists

(Image: MIT Dome, a Creative Commons Attribution (2.0) image from extrudedaluminiu's photostream)