A federal judge is set to explore whether to allow two groups, including the Massachusetts Institute of Technology, to intervene in a lawsuit seeking the public disclosure of government information about Internet activist Aaron Swartz.
MIT, represented by a team from Wilmer Cutler Pickering Hale and Dorr, last week filed a request to intervene in the Freedom of Information Act lawsuit in Washington. JSTOR, the online database of academic journals, has also asked to step into the litigation.
MIT's lawyers, Wilmer partner Patrick Carome and senior associate Laura Hussain, said in their filed papers that the university should be allowed to have a say in the scope of any information released about Swartz, who killed himself in January as federal computer crimes charges were pending against him in Boston.
Swartz was charged with illegally downloading millions of articles from JSTOR using MIT computers. The prosecution garnered substantial criticism as being over-broad and unfair. The U.S. Secret Service participated in the investigation of Swartz, who was involved in the development of the web feed service RSS.
MIT's attorneys argued that the university should be allowed to protect "two vital interests"—the safety of MIT community members and the security of the university's computer systems.
"The unique circumstances giving rise to this case and the threats already endured by members of the MIT community merit affording MIT the ability to conduct a brief but thorough pre-disclosure review," Carome wrote.
Attorneys for JSTOR, represented by a team from Debevoise & Plimpton including counsel Timothy Beeken, said in their request to intervene that JSTOR "supports the release of documents concerning Mr. Swartz. JSTOR seeks to intervene solely to ensure that the documents are redacted prior to release in order to protect the safety and security of JSTOR and its personnel."
U.S. District Judge Collen Kollar-Kotelly has scheduled a telephone conference for Tuesday at 1 p.m. to review the requests to intervene in the lawsuit, filed in April by Wired investigative reporter Kevin Poulsen. The conference will be held in open court.
A lawyer for Poulsen, David Sobel of the Electronic Frontier Foundation, filed papers today opposing the requests by MIT and JSTOR to get involved in the case.
"Mr. Poulsen is unaware of any authority that would grant to a private party the power to redact material from agency records subject to disclosure under FOIA, a power that is properly and exclusively held by the agency that maintains such records," Sobel wrote.
MIT and JSTOR long ago had an opportunity to assert any claim to confidentiality over the information in the government's possession, Sobel said. The defendant in the lawsuit, the Department of Homeland Security—the parent agency of the Secret Service—can "adequately represent MIT's and JSTOR's purported interests" in the case, Sobel wrote.
"A finding by the Court that the government is somehow unable to represent the interests of third-parties in FOIA cases could significantly alter the decades-long norm in which two parties—the agency and the requester—are deemed to adequately represent the competing interests," Sobel wrote.
The review process that MIT and JSTOR proposed, Sobel argued, "would bring with it the potential to significantly delay further proceedings in this case."
Peter Maier, a special assistant U.S. attorney in Washington, told Kollar-Kotelly in a court filing today that the government does not oppose the requests by MIT and JSTOR to review responsive records and propose redactions before the documents are released to the public.
He added, however, that DOJ does object to JSTOR's request that the redactions mirror those in place for discovery in the criminal prosecution of Swartz. Maier argued that "it would be premature to make that determination at this time."