The U.S. Secret Service is reopening all Freedom of Information Act (FOIA) requests it had previously denied regarding the late Internet activist Aaron Swartz.  The news was first broken via twitter by Truthout journalist Jason Leopold, who was one of the first reporters to request files from the Secret Service following Swartz’s death.  EFF independently confirmed the decision with the Secret Service, which had been investigating Swartz’ mass downloading of scholarly texts from MIT. 

This week MIT also announced that it will release its records pertaining to the investigation.  Once provided, the hope is the documents will shine a light on the federal government’s aggressive prosecution of one of the brightest innovators of the Internet age.  As Leopold told EFF via email:

I sought the Secret Service records for several reasons.  First, I was hoping to gain insight into how and why the Secret Service became involved in the Aaron Swartz investigation in the first place and whether the Secret Service was, in addition to Aaron Swartz, also probing other individuals in the hacking community and transparency organizations such as Wikileaks.  I am also interested in finding out what hardware the Secret Service sought from Aaron Swartz and whether the documents they have will provide any insight into Aaron Swartz's own FOIA request to the Secret Service in which he asked the agency on February 28, 2011, to turn over records to him about, "any records on the procedures the Secret Service uses for reading encrypted hard disks."  Why was he asking for that information? 

Swartz committed suicide in January as a prolonged and aggressive federal prosecution was coming to a head.  In the months since, EFF has doubled down on its efforts to reform the Computer Fraud and Abuse Act (CFAA), a 1984 law that was intended to defend the national information infrastructure from malicious hacker attacks but has since been used far more broadly.  On Monday, hacker Andrew “Weev” Auernheimer was sentenced to 41 months in prison under CFAA for revealing how AT&T failed to protect private data of its customers.  EFF has joined Auernheimer’s legal team in appealing the case. 

Visit EFF’s CFAA action center and send a letter to Congress using this link. 

Leopold filed his request on January 15, four days after Swartz’s death seeking “copies of all records,” including “emails, memos, audio files, photographs, subpoenas, reports” held by the Secret Service.  He later amended his request to include documents generated in response to Congressional inquiries. 

A little more than a month later, the Secret Service formally denied the request, stating:

With regard to your request to have access to [Swartz’s] file, we regret to inform you that we cannot comply.  Under provisions of FOIA, there are no records or documents available to you at this time.  Pursuant to 5 U.S.C. 552(B)(7))(A), [Swartz’s] file is being exempted since disclosure could reasonably be expected to interfere with enforcement proceedings. 

Backtracking on a denial of records, without the requester filing a formal appeal, is highly uncommon.  As Leopold said via email:

But this was an unusual case and it's what makes this situation a big deal, in my opinion.  Aaron Swartz is deceased.  The Secret Service claimed their investigation was still active, despite the fact that the case was dropped by the Justice Department after Aaron's death.  I wasn't about to sit around and wait months for my appeal to be processed by Secret Service.  I saw this as a delay tactic as well as an example of how dysfunctional some government agencies are when it comes to processing FOIA requests.  It actually took the threat of litigation to get the Secret Service to reverse its position and state that they will collect responsive records from its field offices. 

Leopold said the Secret Service told him it is in the process of collecting records to comply with at least three separate FOIA requests.  While the reversal is a temporary victory for transparency, there’s little room for optimism that the agency will be all that more forthcoming in the future in response to Leopold’s request.  Or, for that matter, in its response to a similar request filed by George Levines through Muckrock, an open-government organization (and EFF partner) that Swartz himself used to file FOIAs. 

“I am confident the records the Secret Service will process and turn over will be heavily redacted and there will also be records withheld in their entirety under a number of different exemptions,” Leopold said. “ This is such a sensitive case.  It will ultimately take a FOIA lawsuit against the agency to try and get records unredacted and force them to release records they will ultimately withhold.”