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Report to the President: MIT and the Prosecution of Aaron Swartz

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Report to the President: MIT and the Prosecution of Aaron Swartz Report to the President MIT and the Prosecution of Aaron Swartz Review Panel Harold Abelson Peter A. Diamond Andrew Grosso Douglas W. Pfeiffer (support) July 26, 2013 © Copyright 2013, Massachusetts Institute of Technology This worK is licensed under a Creative Commons Attribution 3.0 Unported License. PRESIDENT REIF’S CHARGE TO HAL ABELSON | iii L. Rafael Reif, President 77 Massachusetts Avenue, Building 3-208 Cambridge, MA 02139-4307 U.S.A. Phone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iv TABLE OF CONTENTS PRESIDENT REIF’S CHARGE TO HAL ABELSON (LETTER) ............................................................... iii INTRODUCTION ............................................................................................................................ 11 PART I: EVENTS LEADING TO THE ARREST ................................................................................ 16 I.A Downloading of JSTOR Articles .......................................................................... 16 I.B Discovery of the Laptop ...................................................................................... 20 I.C Events of January 6, 2011: The Arrest ................................................................ 24 I.D Events of January 6, 2011: Seizure of the Laptop .............................................. 25 I.E Access to the MIT Network ................................................................................ 26 I.E.1 Connecting to the MIT networK ............................................................... 26 I.E.2 JSTOR and eControl .................................................................................. 27 PART II: BACKGROUND ON AARON SWARTZ AND LEGAL EVENTS FOLLOWING THE ARREST .............................................................................................. 29 II.A Background on Aaron Swartz ............................................................................. 29 II.A.1 Aaron Swartz in Cambridge .................................................................... 30 II.A.2 Possible motives for downloading .......................................................... 31 II.B The Prosecutions and the Legal Defense: An Overview .................................... 34 II.B.1 The state prosecution ............................................................................. 35 II.B.2 The federal prosecution .......................................................................... 36 II.B.3 Plea discussions during the federal prosecution .................................... 38 II.B.4 Motions to suppress ............................................................................... 41 II.C Aaron Swartz’s Settlement with JSTOR ............................................................. 41 PART III: MIT’S RESPONSE TO THE PROSECUTION (JANUARY 2011–JANUARY 2013) ............... 44 III.A Events between the Arrest and the Indictment (January 2011–July 2011) ...... 48 III.A.1 MIT provides information to the USAO (January 2011–April 2011) ....... 49 III.A.2 MIT is informed about the prosecution (March 2011–June 2011) ........ 51 III.A.3 MIT adopts and maintains a posture of neutrality ................................. 52 III.A.4 MIT discusses possible public statements with JSTOR (June 2011) ....... 56 CONTENTS | v III.B Events around the Time of the Indictment (April 2011–September 2011) ....... 58 III.B.1 Early overtures to MIT in support of Aaron Swartz (April 2011–June 2011) .......................................................................... 59 III.B.2 The indictment: Unauthorized access .................................................... 60 III.B.3 MIT as “victim” ....................................................................................... 62 III.B.4 Robert Swartz meets with MIT’s Chancellor .......................................... 62 III.C MIT’s Contacts with Prosecution and Defense (October 2011–September 2012) ....................................................................... 64 III.C.1 Responses to defense inquiries are slow (May 2012–August 2012) ...... 64 III.C.2 Robert Swartz writes to MIT’s President ................................................ 66 III.C.3 MIT’s outside counsel speaKs with the lead prosecutor (August 9, 2012) ..................................................................................... 67 III.C.4 Robert Swartz meets again with MIT (September 2012) ....................... 69 III.C.5 Other contacts on behalf of Aaron Swartz ............................................. 70 III.D Events in Anticipation of Trial (August 2012–October 2012) ............................ 72 III.D.1 The defense asKs MIT to oppose jail time (September 2012–October 2012) .......................................................... 73 III.D.2 The defense moves to suppress evidence (October 2012) .................... 74 III.D.3 Effect of the suppression motions (October 2012–December 2012) .... 76 III.D.4 Final weeks (December 2012–January 2013) ......................................... 77 PART IV: DECISION POINTS FOR MIT ........................................................................................... 80 IV.A The Investigation and the Immediate Post-arrest Period ................................. 81 IV.A.1 Locating the laptop and performing a packet scan ................................ 81 IV.A.2 Informing the MIT Police and notifying the Cambridge Police ............... 82 IV.A.3 Providing information to law enforcement pre-subpoena .................... 82 IV.B Neutrality: Issuing Statements; Providing Information to Prosecution and Defense ................................................................................... 83 IV.B.1 Issuing public statements about whether to prosecute ......................... 84 IV.B.2 Issuing public statements about the criminal charges ........................... 85 IV.B.3 MaKing private statements to the prosecution about the criminal charges ..................................................................................... 85 IV.B.4 Providing prosecution and defense with documents and access to MIT employees ....................................................................... 86 IV.B.5 Taking non-neutral positions for people with MIT associations ............ 87 CONTENTS | vi IV.B.6 Becoming more informed about the charges ........................................ 87 IV.B.7 Engaging more deeply with issues around the Computer Fraud and Abuse Act ........................................................................................ 88 PART V: QUESTIONS FOR THE MIT COMMUNITY ...................................................................... 89 Question 1: Should MIT develop additional on-campus expertise for handling potential computer crime incidents, thus giving the Institute more flexibility in formulating its responses? ............................................................................................ 90 Question 2: Should MIT policies on the collection, provision, and retention of electronic records be reviewed? ...................................... 92 Question 3: Should an MIT education address the personal ethics and legal obligations of technology empowerment? ........................... 92 Question 4: Should MIT increase its efforts to bring its considerable technical expertise and leadership to bear on the study of legal, policy, and societal impact of information and communications technology? ............................................................... 93 Question 5: What are MIT’s institutional interests in the debate over reforming the Computer Fraud and Abuse Act? ................................... 94 Question 6: Should MIT strengthen its activities in support of open access to scholarly publications? .......................................................... 95 Question 7: What are
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