Lawyers for the Massachusetts Institute of Technology and the digital library JSTOR continue to press their fight to intervene in a public records lawsuit to assert control over the scope of information the government is planning to release about the late Aaron Swartz.
In the dispute in Washington federal district court, MIT and JSTOR argue they should have some say over the ability to keep certain details secret before the government provides any information to the public. Wired investigative reporter Kevin Poulsen sued the Department of Homeland Security in April under the Freedom of Information Act. The suit now tests just how big a voice a third party can have in a public records case.
MIT's attorneys at Wilmer Cutler Pickering Hale and Dorr said in a court filing Tuesday night that the university, which provided information to law enforcement in the investigation of Swartz in a computer crimes case, "manifested an expectation" that the government would refrain from disclosing confidential information.
Much of the information MIT provided to the authorities, Wilmer lawyers said in their court filing, was in response to grand jury subpoenas amid the Swartz investigation. Swartz was ultimately charged in Boston federal court in connection to his downloading of millions of JSTOR articles via MIT networks. In January, while the case was still pending, he committed suicide.
In particular, MIT's attorneys said they're concerned the disclosure of certain details could jeopardize the security of the university's computer systems. "MIT believes that the sensitive nature of this information ought to be apparent to DHS," Wilmer partner Patrick Carome wrote yesterday.
JSTOR's attorneys at Debevoise & Plimpton, including partner Bruce Yannett, said that intervention—rather than a lawsuit called a "reverse FOIA," to block the government from releasing particular details—is the most efficient way for the library to protect its interests. JSTOR's latest court filing is here.
"All the parties and proposed intervenors thus agree that the documents should promptly see the light of day, and that the privacy and security interests are legitimate," Yannett wrote. "The only question is how to protect those interests in a way that is legally appropriate, sensible and efficient."
Attorneys for MIT and JSTOR both argued that a reverse FOIA action—a separate lawsuit that would be filed against the government—is not a viable alternative.
JSTOR's lawyers noted in their papers that the government hasn't yet finished processing the records request for information about Swartz. (Prosecutors last week told U.S. District Judge Colleen Kollar-Kotelly that some 8,000 pages must still be reviewed.)
"Since it is unclear whether JSTOR could file a reverse-FOIA action at least as to those documents for which DHS has not yet made final decisions, the ultimate release of the documents could be delayed further by use of the reverse-FOIA mechanism," JSTOR's lawyers wrote. "JSTOR supports prompt access to information about the Aaron Swartz matter, as confirmed by its voluntary release today of its own documents in redacted form."
Attorneys for MIT argued that "requiring the filing of a separate action would only increase the time and resources it takes to resolve these issues. Such a delay would disserve both the parties and the public."