Category Archives: History

Letter from Chelsea Manning to Judge Anthony Trenga

Index of Materials re: Chelsea’s Resistance to Two Grand Jury Subpoenas

Exhibit 1 to Chelsea and her legal team’s Motion for Reconsideration of Sanctions (Scribd) (SparrowMedia)

References cited in this letter.

May 28, 2019


Dear Judge Trenga,

During the contempt hearing on May 16, 2019, this Honorable Court directed me to take the opportunity during my confinement to reflect on my principles with respect to the institution of grand juries in the United States. This letter responds to that directive.

During the hearing, you stated that there exists “no dishonor” in providing evidence to a grand jury. You suggested that codification of grand juries in the text of the U.S. Constitution provided ample justification for this institution. In response to my suggestion of “preliminary” or “committal” hearings, you expressed skepticism over whether such publicly held hearings served the same purpose without damaging innocent people accused of crimes.

These arguments are raised frequently in discussions about the problems with grand juries. They are certainly not novel to me. Over the last decade, I frequently considered these and many other arguments while forming my opinions about the grand jury process. After spending the last two weeks reflecting on my decision not to testify before this grand jury, I wish to present my position in a more careful and complete manner than an impromptu colloquy can provide. After working with lawyers and researchers, I can also now cite specific sources that support my position.

First, I shall compare grand juries in their earliest form, including the ideals and practical problems they sought to address, to grand juries as they currently operate. Second I want to clarify that while my objection to grand juries emphasizes their historical use against activists, I also view grand juries as an institution that now undermines due process even when used as intended.

The drafters of the U.S. Constitution, despite their many flaws, possessed a sophisticated understanding of modern political theory. The framers did not set out to short-circuit due process protections. Obviously, to a contemporary reader, we now understand the many flaws and compromises in the Constitution, and see some as inherently cruel and indefensible: legal human slavery; the legalizing of subordinate civil status for women; segregation; and the disenfranchisement of those who did not own land come to mind.

Some such practices might have struck contemporaries of the Constitution as “normal” or “necessary,” but with the passage of time, and through the tireless work of millions of people taking bold and dangerous action, they are now obsolete. I am certainly not alone in thinking that the grand jury process, which at one time acted as an independent body of citizens along the lines 2 of a civilian police review board, slowly transitioned into the unbridled arm of the police and prosecution in ways that run contrary to the grand jury’s originally intended purposes.(1)

The 5th Amendment provides many of our most cherished procedural safeguards, concepts foundational to our criminal legal system, including ‘due process,’ a prohibition on double jeopardy, and the right against compelled self-incrimination. The grand jury is also enshrined in the fifth amendment, however, prior to the recent publicity surrounding the Mueller investigation, most Americans only knew two things about the grand jury.

First, people hear that a grand jury could indict a ham sandwich. Early grand juries acted independently, as investigations by citizens. Now, the grand jury process means the prosecutor decides what the grand jurors see – and what they don’t see. The grand jury imagined by the drafters of the fifth amendment – which did not involve a prosecutor – bears no resemblance to what we see today, where more than 99.9% of indictments sought are granted.

Second, we learn another, more sinister thing about grand juries: they don’t indict law enforcement. For example, in Dallas over a stretch of several years, more than 80 police shootings came before grand juries. Only one returned an indictment.(2) Grand juries have protected police officers since the slave patrols. They were used to indict abolitionists, but not people capturing and re-enslaving people seeking freedom from bondage. They were used to indict reconstructionists, while actively protecting lynch mobs. Both the ‘ham sandwich’ statement and selective indictment happen because of grand jury secrecy.

Also, a prosecutor’s presentation of a case is shaped by their own ideas and goals. There does not need to be any misconduct or bad intent on the part of a prosecutor to influence the grand jurors in a way that destroys their independence. If you look at legal scholarship about the history of the grand jury, you can see how today’s grand juries are unrecognizable from English and early American ones. The original grand jury was more than an investigator; they were supposed to protect citizens not just from unjust indictments but from unjust laws. In England, grand jurors who even allowed a prosecutor to come into the grand jury room were seen as having violated their oath.(3)

I am positive that the founders never intended the grand jury to function like those we see today. If grand juries were actually independent bodies that nullified unjust laws or their unjust application, to determine whether it was really in the public interest to decide who should be made “infamous” under the law, I would feel differently. Reading the history of grand juries, I have read of how during the American Revolutionary war, grand jurors refused to indict tax resisters against the crown, because while it was technically illegal, the grand jurors recognized that what made it a criminal act was a law imposed by an authority that most of them by that time did not recognize (4). Nonetheless, the grand jury once provided a modicum of due process, at least to the class of people to whom due process was made available.

In 2019, the federal grand jury exists as a mockery of the institution that once stood against the whims of monarchs. It undermines the Fourth Amendment’s protections against unreasonable search and seizure, and the Fifth Amendment’s guarantees of due process. Today’s grand juries do not safeguard such fundamental rights, and they are easily subject to abuse.

Secret proceedings lend unearned legitimacy to prosecutorial decisions that protect the powerful against accountability and over-punish the marginalized. It is not surprising that members of the defense bar are generally unsupportive of grand jury proceedings. Even the Department of Justice released a report acknowledging that “grand juries are notorious for being ‘rubber stamps’ for the prosecutor for virtually all routine criminal matters.” (5) Moreover, because prosecutors can compel people to show up and testify or produce documents to the grand jury without having to show probable cause, their unmonitored subpoena power functions to let them side-step the Fourth Amendment’s protections against unreasonable searches and seizures.

Imagine a world in which you were not a judge and were not connected to judges and prosecutors personally. If you or a loved one has charges brought before a grand jury, charges of which you or they were innocent, would you believe for one moment that the grand jury might not indict? What rights, specifically, would you consider safeguarded by the fifth amendment’s provision for a grand jury? Consider that it is more than six times as likely that you will be struck by lightning than that a federal grand jury will decline to indict. I object to grand juries even when used in the ways that are typically understood to be legitimate.

The ability of grand juries to be abused or used for political ends is entrenched and perpetuated by the fact that jeopardy doesn’t attach with a grand jury, so prosecutors can repeatedly bring the same changes. Even though there are some laws that say prosecutors must either show they have new evidence or that it is in the public interest to extend or reconvene a grand jury, this is hardly an obstacle. For instance, Thomas Jefferson had to convene three separate grand juries in order to indict Aaron Burr for sedition – but he was able to continue to convene those grand juries until he obtained that indictment.

Additionally, in the Antebellum South, grand juries routinely indicted anti-slavery activists for sedition, while those in the North sometimes refused — but charges would re-presented to new grand juries until they stuck. In 1968, a San Francisco Grand Jury was asked by Mayor Alioto to investigate the Black Panther Party. They refused, and the foreman gave a press conference about political overreach. Unfortunately, in 1969, a new grand jury began an investigation.

These examples run to the political, but grand jury shopping is something that can be done with any kind of case. Grand juries can also be used to coerce defendants to give up their trial rights and take pleas, both by threatening to indict for more severe charges than are warranted (which we know can be done easily), or by threatening to call a defendant’s loved ones before a grand jury as witnesses. The very threat of the secret proceeding is in itself terrifying to people. The secrecy of grand jury proceedings fuel paranoia and fear, running contrary to our ideals of open courts and stoking our disdain for secret testimony. I find, when I explain the secrecy of grand juries, people are often truly shocked that they are constitutional, and frequently compare them to the Court of Star Chamber.

The Court of the Star Chamber existed in England from the 15th to 17th centuries. This court lacked the same procedures as normal courts, and often pursued political and religious dissidents, and others who “sinned” against the crown. It lacked evidentiary standards and proceeded on rumor and hearsay. It imposed all kinds of arbitrary punishments, except the death penalty. In 1641, Parliament abolished the Court of Star Chamber as a dangerous relic of the past for its brutality and capriciousness. The grand jury was once a progressive and protective replacement for things like the Star Chamber, but in its current incarnation it bears far more resemblance to the Court of the Star Chamber than to its intended role as a bulwark against arbitrary state power. Apart from the fact that the grand jury itself does not impose punishments, the biggest difference between the grand jury and the Court of the Star Chamber is that Star Chamber proceedings were in fact largely open to the public.

I am not alone in objecting to the grand jury as a dangerous relic that has evolved in ways that increase its power without increasing its protections. This is not even a partisan issue. For instance, even the Cato Institute has made statements critical of the grand jury:

Prosecutors defend their actions by reminding everyone that legislators have approved the procedures. Legislators defend what they have done by reminding everyone that the courts have approved the procedures. Judges defend what they have done by reminding everyone that prosecutors and legislators are free to do otherwise—and that the people seem content since they have not revolted against the elected officials who run the system. Citizens, in turn, too often assume that someone in the government is looking out for their welfare, including their constitutional rights. No one takes responsibility for the fact that constitutional rights are slipping away. (6)

During the hearing on the 16th, you pointedly asked me whether I had taken an oath to uphold the constitution. What is more important than my willingness to blindly follow that document is my commitment to its general principles of due process and fundamental rights. I refuse to participate in a process that has clearly transformed into something that violates the spirit if not the letter of the law. Since I reject the grand jury process, I am totally ready to propose alternatives to it and point out that such alternatives already exist.

Only two common law systems of justice use the grand jury: the United States and Liberia. Even within the United States, half of the states have dispensed with the use of grand juries. While they reliably end with indictments, they do not reliably end with justice. While the grand jury is anomalous in the world, other countries are nevertheless able to prosecute people, demonstrating that there are alternatives to the grand jury.

While the United States is one of two countries to maintain a grand jury system, countries that used to have grand juries include England, Scotland, Ireland, Canada, Australia, New Zealand, South Africa, France, Belgium, Japan and Sierra Leone. In those countries, grand jury proceedings have been replaced by an open and adversarial “preliminary” or “committal” hearing system. Additionally, the United States military, through the Uniform Code of Military Justice, 10 U.S.C. §801 et seq, sets forth procedures for preliminary hearings, rather than grand juries, providing service members with significantly more protections than the average person.

Preliminary hearings throw open the doors to the best of all disinfectants: sunshine. Nearly every country that used grand juries replaced it with these hearings, which save time and expense, don’t criminalize refusal to comply with prosecutorial whims, and better equip all parties to prepare for fairer and more balanced inquiries into the truth of matters. There exists no shortage of due process and nothing prevents a witness who wishes to remain anonymous from speaking to law enforcement or the prosecution. A common justification for grand jury secrecy is to preserve the reputation of those investigated. First of all, as noted, almost nobody investigated by a grand jury is not indicted. Moreover, in countries that have preliminary hearings, people have an opportunity to defend themselves, and simply being investigated does not end in ruin.

Now, I want to address my specific concerns about the ways in which grand juries can be used politically.

Across the world and throughout history, it has been common practice to incarcerate or even kill dissidents and political rivals on the mere suspicion of being a member of an opposition group. While in the United States we are perhaps less overt in our persecution of dissidents most of the time, the grand jury subpoena combined with compulsory immunity gives unrestrained powers to U.S. prosecutors to oppress activists and their communities. Generally, people have no obligation to cooperate with law enforcement investigations. But in the context of a grand jury subpoena, people who refuse to talk about their first amendment beliefs and associations can be locked away via contempt.

During the McCarthy era, when people were publicly interrogated about their beliefs and associations, the public was eventually outraged, and the McCarthy hearings are widely seen as a disgraceful episode of modern history. This kind of questioning, however, routinely happens under the grand jury system. Due to the secrecy of grand juries, the public is less aware of it, and less outraged, and therefore, it continues without interruption. However, this is because they are unaware it is happening and cannot feel its effects.

The investigative grand jury as we know it was developed in the wake of McCarthy, during the Nixon years. It was developed purportedly to battle organized crime, but was promptly used to subpoena members of anti-war groups, the women’s movement, and black liberation groups. Prosecutors issued subpoenas in conjunction with grants of immunity, in order to compel testimony, and routinely had resistant activists imprisoned for contempt. For instance, while federal agencies were investigating the Puerto Rican independence movement, several community organizers refused to comply out of solidarity with their communities. They were arrested at gunpoint for contempt of court. 6 Senator Ted Kennedy was not shy about expressing his alarm:

“Over the past four years, under the present administration, we have witnessed the birth of a new breed of political animal — the kangaroo grand jury — spawned in a dark corner of the Department of Justice, nourished by an administration bent on twisting law enforcement to serve its own political ends, a dangerous modern form of Star Chamber secret inquisition that is trampling the rights of American citizens from coast to coast.” (7)

The tradition of using political grand juries to jail political dissidents and activists is long. The concept of a grand jury in which prosecutors subpoena activists and jail them for refusing to comply with the subpoena stands in stark contrast to the institution contemplated in the Constitution.

The foregoing is intended to give you a better and more nuanced understanding of my conscientious objection to the grand jury. I understand the idea that as a civil contemnor, I hold the key to my cell – that I can free myself by talking to the grand jury. While I may hold the key to my cell, it is held in the beating heart of all I believe. To retrieve that key and do what you are asking of me, your honor, I would have to cut the key out, which would mean killing everything that I hold dear, and the beliefs that have defined my path.

Each person must make the world we want to live in around us where we stand. I believe in due process, freedom of the press, and a transparent court system. I object to the use of grand juries as tools to tear apart vulnerable communities. I object to this grand jury in particular as an effort to frighten journalists and publishers, who serve a crucial public good. I have had these values since I was a child, and I’ve had years of confinement to reflect on them. For much of that time, I depended for survival on my values, my decisions, and my conscience. I will not abandon them now.

Sincerely,

Chelsea Manning

**end**

References:

1. District Judge Edward Becker concluded, without chagrin, that it is true, generally, that “the grand jury is essentially controlled by the United States Attorney and is his prosecutorial tool” Robert Hawthorne, Inc. v. Dir. of Internal Revenue, 406 F. Supp. 1098, 1119 (E.D. Pa. 1975) https://law.justia.com/cases/federal/district-courts/FSupp/406/1098/2143411/

2. A grand jury could ‘indict a ham sandwich’, but apparently not a white police officerThe Guardian, Tuesday 25 November 2014 – As reprinted in The Independent: https://my.independent.co.uk/news/world/americas/a-grand-jury-could-indict-a-ham-sandwich-but-apparently-not-a-white-police-officer-9882529.html

3. Roots, Roger, PhD, (2010) Grand Juries Gone Wrong

Roots, Roger, Grand Juries Gone Wrong (2011). Richmond Journal of Law & Public Interest, Vol. 14, p. 331, 2010. Available at SSRN: https://ssrn.com/abstract=1771994

4. The Improper Use of the Federal Grand Jury: An Instrument for the Internment of Political Activists, Michael E. Deutsch, 1984 Northwestern School of Law https://peopleslawoffice.com/improper-use-of-federal-grand-jury-michael-deutsch-political-repression/

5. Plea Bargaining: Critical Issues and Common Practices, by William F. McDonald, (U.S. DOJ, National Institute of Justice, 1985) https://digitalcommons.law.ggu.edu/nij-ojp/31/

6. W. Thomas Dillard, Stephen R. Johnson, and Timothy Lynch, A Grand Façade How the Grand Jury Was Captured by Government, Policy Analysis 1–18 (2003). https://www.cato.org/publications/policy-analysis/grand-facade-how-grand-jury-was-captured-government

7. Washington Post, March 14, 1972, at 2, col. 3

Editor’s Note: Reference #7, which we were unable to find an online copy of, is also mentioned in Reference(4) above:

Testifying before a House Judiciary sub-committee investigating the tactics of an ISD grand jury which had subpoenaed five pro-Republican Irish-Americans from New York to a grand jury in Fort [*1182] Worth, Texas, n105 Senator Edward M. Kennedy captured the essence of the Nixonian use of the grand jury:

Over the past four years, under the present administration, we have witnessed the birth of a new breed of political animal — the kangaroo grand jury — spawned in a dark corner of the Department of Justice, nourished by an administration bent on twisting law enforcement to serve its own political ends, a dangerous modern form of Star Chamber secret inquisition that is trampling the rights of American citizens from coast to coast.

“Property of the People” Lawsuit Proves Aaron Was Scooped Up In An FBI Investigation Back In 2007

We will be discussing this lawsuit and the Aaron Swartz Day Police Surveillance Project in general (its templates, latest results from Sacramento & other cities in California) at this month’s Raw Thought Salon on March 8th – from 7-9pm.

Then stay from 9pm-2am to dance and hang out in Grumpy Green’s super special Psychedelic Chill Room (an immersive art installation).

DJs include: Melotronix, Tha Spyryt, Ailz, & Cain MacWitish – with visuals by Projekt Seahorse – March 8th Raw Thought at the DNA Lounge in San Francisco! TICKETS

 

By Lisa Rein

A “Property of the People” Freedom of Information Act (FOIA) lawsuit has obtained documents proving that Aaron was scooped up in an FBI investigation as far back as 2007, even before the PACER project, in 2008. (Previously we thought the PACER project was the first time the FBI had concerned itself with Aaron.)

Aaron had been erroneously swept up in a 2007 terrorist investigation that, most likely, caused law enforcement agencies (FBI, DOJ) to treat him with rougher hands during its subsequent encounters with him afterwards.

His email was only scooped up because the Feds were probably using National Security Letters (NSLs) to get all of a University Department’s email headers, in bulk, from a computer science department that Aaron had emailed. (More on NSL’s here.) Long story short they enable the FBI to demand information from entities without court approval. (No warrants. No judicial oversight.)

Here’s the article by Dell Cameron for Gizmodo: https://gizmodo.com/fbi-secretly-collected-data-on-aaron-swartz-earlier-tha-1831076900

Highlights from the two documents are displayed below): (1) (2) These documents show the information that the FBI had in its database about Aaron, way back in February of 2007:

 

 

 

 

 

 

 

 

 

 

This document is from November 4, 2008:

 

 

 

 

 

 

 

 

 

From the Article:

How specifically the FBI came to possess Swartz’s email data remains unclear.

But after reviewing the document and other related files, several legal experts told Gizmodo the most likely explanation was that the FBI had used a National Security Letter (NSL), a ubiquitous tool for obtaining email header data at the time. An NSL would have enabled federal agents to demand access to the data and then impose a gag order to maintain secrecy around the investigation, all without a judge’s approval.

Authorized under the Stored Communications Act, in cases of suspected terrorism or espionage, these letters enable the FBI to seize a variety of electronic records under its own authority. While agents cannot use an NSL to acquire the contents of an email message, the FBI’s notes appear to show that, in Swartz’s case, it sought only “email headers,” data the FBI would argue falls well within the scope of its power to seize.

NSL Letters are over reaching, post-911 creations that we’ve all learned a lot about these last few years because Brewster Kahle at the Internet Archive went public with his experience with them, and then he worked with the ACLU and the EFF to challenge NSLs as being unconstitutional. Here’s a great story about it by Richard Koman for ZDNet, where Brewster Kahle offers a cookbook for fighting security letters:

Just talked to Brewster Kahle at the Internet Archive about their successful settlement with the FBI of a lawsuit over a National Security Letter. The FBI had demanded personal information on a user; the Archive replied with a lawsuit challenging the propriety of the NSL.

***

We will be discussing this lawsuit and the Aaron Swartz Day Police Surveillance Project in general (its templates, latest results from Sacramento & other cities in California) at this month’s Raw Thought Salon on March 8th – from 7-9pm.

Then stay from 9pm-2am to dance and hang out in Grumpy Green’s super special Psychedelic Chill Room (an immersive space for both dancing & chilling).

DJs include: Melotronix, Tha Spyryt, Ailz, & Cain MacWitish – with visuals by Projekt Seahorse – all at our March 8th Raw Thought at the DNA Lounge in San Francisco! TICKETS

 

 

A Little Information About the Vegan Pizza at our Q & A Event January 11th

TICKETS (or just RSVP to aaronswartzday@gmail.com)

A little update on the pizza we are serving for our Aaron Swartz Q & A Event.

It’s really really tasty — and not what you would expect.

There was a time, not too long ago, when the words “Vegan Pizza” struck fear into the hearts of many a pizza lover.

Well, friends, that time has past.

This vegan pizza is very very tasty pizza (from DNA Pizza) – you might not even notice – it just happens to be vegan.

I wanted to let folks know a bit about the “Vegan Pizza” we will be serving from DNA Pizza.

A gluten-free crust is available upon request. I’m not sure if it’s necessary, so, if you’d prefer it,  even require it, please do email me at aaronswartzday@gmail.com.

These are the three styles of pizza we’ll have on hand:

Vegan Potesto: vegan pesto, garlic roasted potatoes, roasted garlic

Vegan Shmegan: olive oil base, vegan ricotta (Note: It’s great! I tried it!), tomatoes, basil, chopped garlic

SFV: olive oil base, red onion, green onion, tomato, chopped garlic

Thanks! :))

Hope to see you from 7:30-9:30 pm – Here are more details about what we are doing then – with special guest Ryan Shapiro.

 

Aaron’s PACER Project Explained

Here’s a clip from the film “The Internet’s Own Boy”  – Directed by Brian Knappenberger – which explains the PACER project in more detail. [This is background for our Next Raw Thought Salon on March 8th.]

Clip on the Internet Archive

Clip on YouTube

PACER is the name of the website that lawyers use to retrieve legal documents from current and past court cases. These documents make up the precedents that make up “the law,” yet to access documents on PACER you must have a credit card and pay per page. (Costing a dime or more for *each* page, so you can see how it can add up quickly. )

You can understand why this “pay to see the law” system could present a problem for anyone who doesn’t have a credit card or is unfamiliar with the details of legal proceedings.

Aaron learned of a program which enabled free access to PACER via a small group of libraries across the country, and coordinated with a friend to download millions of PACER documents.

The FBI didn’t like it, and investigated him for a while, including surveillance at his parent’s home. But ultimately it had to let it go, because Aaron hadn’t actually done anything illegal.

Below is a transcription of the PACER Section of “The Internet’s Own Boy (Directed by Brian Knappenberger)

Brewster Kahle – Founder, Internet Archive:

“How can you bring public access to the public domain? It may sound obvious that you would have public access to the public domain, but in fact, it’s not true. So, the public domain should be free to all, but it’s often locked up. There’s often guard cages. It’s like having a National Park but with a moat around it and gun turrets pointed out, in case somebody might want to come and actually enjoy the Public Domain.

One of the things Aaron was particularly interested in was bringing public access to the public domain. It was one of the things that got him into so much trouble.”

Stephen Shultze – Former Fellow, Berkman Center for Internet and Society at Harvard:

“I had been trying to get access to Federal Court records in the United States. What I discovered was a puzzling system, called PACER, which stands for “Public Access to Court Electronic Records.

I started Googling and that’s when I ran across Carl Malamud.”

Narrative: “Access to legal materials in the United States is a 10 billion dollar per year business.”

Carl Malamud – Founder, Public.Resource.org

“PACER is just this incredible abomination of government services. Ten cents a page. It’s this most brain dead code you’ve ever seen. You can’t search it. You can’t bookmark anything. You’ve gotta have a credit card. And these are “public records.”

U.S. District Courts are very important. That’s where a lot of our seminal legislation starts. Civil Rights cases. Patent cases. All sorts of stuff. And journalists and students and citizens and lawyers all need access to PACER and it fights em every step of the way.

People without means can’t see the law as readily as people with that American Express card. It’s a poll tax on access to justice.”

Tim O’Reilly, Publisher

“The law is the operating system of our democracy, and you have to pay to see it? That’s not much of a democracy.”

Stephen Shultze: “They make about 120 million dollars a year on the PACER system and it doesn’t cost anything near that, according to their own records.

In fact, it’s illegal. The E-government Act of 2002 states that the courts may charge “only to the extent necessary” in order to reimburse the costs of running pacer.”

Narrator: “As the founder of Public.Resource.org, Malamud wanted to protest the PACER charges.

He started a program called “The PACER Recycling Project.” People could upload documents they had already paid for to a free database, so others could use them.”

Carl Malamud: “The PACER people were getting a lot of flack from congress and others about public access. And so they put together this system in seventeen (17) libraries across the country, there was free PACER access. That’s one library every 22,000 square miles I believe. So it wasn’t like really convenient.

I encouraged volunteers to join the “thumb drive core” and download docs from the public access libraries and upload them to the PACER recycling site. People take a thumb drive into one of these libraries and they download a bunch of documents and then send em to me. And it was just a joke. In fact if you clicked on “thumb drive core,” the Wizard of Oz, ya know, the munchkins singing, video clip came up.

But of course, I get this phone call from Steve Shultze and Aaron saying “Gee, we’d like to join the Thumb Drive Core.”

Stephen Shultze: “Around that time, I ran into Aaron at a conference. So I approached him and said “hey, I’m thinking about doing an intervention on the PACER problem.”

Narrator: “Shultze had already developed a program that could automatically download PACER documents from the trial libraries. Swartz wanted to take a look.”

Stephen Shultze: “So, I showed him the code. And I didn’t know what would come next, but as it turns out, over the next few hours at that conference. He was off sitting in a corner, improving my code, recruiting a friend of his that lived near one of these libraries to go into the library and to begin testing his improved code, and at some point the folks at the court realized something’s not going quite according to plan.”

Carl Malamud: “And data started to come in, and come in, and come in. Soon there were 760 GB of PACER docs. About 20 million pages.”

Narrator: “Using information retrieved from the trial libraries, Swartz was conducting massive automated parallel downloading of the PACER system. He was able to acquire more than 2.7 million Federal Court Documents. Almost 20 million pages of text.

Carl Malamud: “Now, I’ll grant you that 20 million pages perhaps exceeded the expectations of the people running the pilot access project, but surprising a bureaucrat isn’t illegal.”

Aaron & Carl decided to talk to the New York Times about what happened.

They also got the attention of the FBI, who began to stake out Swartz’ parents’ house in Illinois.

Carl Malamud: “I get a tweet from his mother saying ‘Call me!’ And I’m like what the hell’s going on here? So, I finally got a hold of Aaron, and Aaron’s mother is like ‘oh my god FBI, FBI, FBI’ ”

Noah Swartz

Noah Swartz: “An FBI agent drives down our home’s driveway trying to see if Aaron is like, in his room. And I remember being home that day and wondering why this car was driving down our driveway and just driving back out. That’s weird. Like five years later I read the FBI file and I’m like my goodness – that was the FBI agent, in my driveway.”

Carl Malamud: “He (Aaron) was terrified. He was totally terrified. He was way more terrified after the FBI actually called him up on the phone and tried to sucker him in to coming down to a coffee shop without a lawyer. He said he went home and laid down on the bed, and was shaking.

Narrator: The downloading also uncovered massive privacy violations in the court documents. Ultimately, the courts were forced to change their policies as a result.

And the FBI closed their investigation without bringing charges.

Cory Doctorow

Cory Doctorow: “To this day, I find it remarkable that anybody, even at the most remote podunct field office of the FBI, thought that a fitting use for taxpayer dollars was investigating people for theft on the grounds that they had made the law public. How can you call yourself a “law man,” and think there can possibly be anything wrong in this whole world with making the law public.”

NY Times Article On Aaron’s Pacer Project

This is a reference for our post about Aaron’s Pacer Project Explained.

This was published in the New York Times on February 12, 2009.

An Effort to Upgrade a Court Archive System to Free and Easy

By JOHN SCHWARTZ

FEB. 12, 2009

Aaron Swartz used a free trial of the government’s Pacer system to download 19,856,160 pages of documents in a campaign to place the information free online. Photo:  Michael Francis McElroy for The New York Times

Aaron Swartz used a free trial of the government’s Pacer system to download 19,856,160 pages of documents in a campaign to place the information free online. Credit Michael Francis McElroy for The New York Times

Americans have grown accustomed to finding just about anything they want online fast, and free. But for those searching for federal court decisions, briefs and other legal papers, there is no Google.

Instead, there is Pacer, the government-run Public Access to Court Electronic Records system designed in the bygone days of screechy telephone modems. Cumbersome, arcane and not free, it is everything that Google is not.

Recently, however, a small group of dedicated open-government activists teamed up to push the court records system into the 21st century — by simply grabbing enormous chunks of the database and giving the documents away, to the great annoyance of the government.

“Pacer is just so awful,” said Carl Malamud, the leader of the effort and founder of a nonprofit group, Public.Resource.org. “The system is 15 to 20 years out of date.”

Worse, Mr. Malamud said, Pacer takes information that he believes should be free — government-produced documents are not covered by copyright — and charges 8 cents a page. Most of the private services that make searching easier, like Westlaw and Lexis-Nexis, charge far more, while relative newcomers like AltLaw.org, Fastcase.com and Justia.com, offer some records cheaply or even free. But even the seemingly cheap cost of Pacer adds up, when court records can run to thousands of pages. Fees get plowed back to the courts to finance technology, but the system runs a budget surplus of some $150 million, according to recent court reports.

To Mr. Malamud, putting the nation’s legal system behind a wall of cash and kludge separates the people from what he calls the “operating system for democracy.” So, using $600,000 in contributions in 2008, he bought a 50-year archive of papers from the federal appellate courts and placed them online. By this year, he was ready to take on the larger database of district courts.

Those courts, with the help of the Government Printing Office, had opened a free trial of Pacer at 17 libraries around the country. Mr. Malamud urged fellow activists to go to those libraries, download as many court documents as they could, and send them to him for republication on the Web, where Google could get to them.

Aaron Swartz, a 22-year-old Stanford dropout and entrepreneur who read Mr. Malamud’s appeal, managed to download an estimated 20 percent of the entire database: 19,856,160 pages of text.

Then on Sept. 29, all of the free servers stopped serving. The government, it turns out, was not pleased.

A notice went out from the Government Printing Office that the free Pacer pilot program was suspended, “pending an evaluation.” A couple of weeks later, a Government Printing Office official, Richard G. Davis, told librarians that “the security of the Pacer service was compromised. The F.B.I. is conducting an investigation.”

Lawyers for Mr. Malamud and Mr. Swartz told them that they appeared to have broken no laws, noting nonetheless that it was impossible to say what angry government officials might do.

At the administrative office of the courts, a spokeswoman, Karen Redmond, said she could not comment on the fate of the free trial of Pacer, or whether there had been a criminal investigation into the mass download.

The free program “is not terminated,” Ms. Redmond said. “We’ll just have to see what happens after the evaluation.” As for the system’s cost, she said: “We’re about as cheap as we can get it. We’re talking pennies a page.”

Carl Malamud has been leading the effort to push the court records system into the 21st century. Photo: Heidi Schumann for The New York Times

Carl Malamud has been leading the effort to push the court records system into the 21st century. Credit Heidi Schumann for The New York Times

Meanwhile, the 50 years of appellate decisions remain online and Google-friendly, and the 20 million pages of lower court decisions are available in bulk form, but are not yet easily searchable. “I want the whole database in 2009,” Mr. Malamud said.

Mr. Malamud, 49, has a long record of trying to balance openness with privacy, and has also pushed the Securities and Exchange Commission and the Patent and Trademark Office to put their records online free. But the issue is a thorny one with court documents, which often contain personal information.

Daniel J. Solove, a professor at the George Washington University Law School, noted that marketers skim court records for personal data, and making records easier to troll will put even more data at risk. “It’s taking away this middle ground that offered a lot of protection, practically, and throwing it into this radically wide open box,” he said.

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But this argument for what is known as “practical obscurity” does not convince Peter A. Winn, a privacy expert who is an assistant United States attorney in Washington State. Noting that he was speaking only for himself, he argued that the courts developed rules over the last 400 years to protect privacy.

“It worked in the bricks-and-mortar age — it should work in the electronic age,” Mr. Winn said. The administrative office of the courts, he said, should take on the role of policing privacy on its databases. “This is going to take focus and a lot of hard work,” he said.

Mr. Malamud agrees that the court system needs to do a better job of protecting privacy. He found thousands of documents in which the lawyers and courts had not properly redacted personal information like Social Security numbers, a violation of the courts’ own rules. There was data on children in Washington, names of Secret Service agents, members of pension funds and more.

“They’re pretty spectacular blunders,” he said. He sent letters to the clerks of individual courts around the country. After some initial inaction, and repeated and increasingly spirited notices from Mr. Malamud, most of the offending documents were pulled from the databases to be redacted.

Ms. Redmond, of the administrative office of the courts, said the courts comb through the documents “on a regular basis” and tell lawyers to redact confidential information. The number of violations, she noted, was relatively small.

Mr. Malamud scoffed at that. “This is a large number of transgressions, and this is illegal,” he said. “The law doesn’t say that you should only publish a small number of Social Security numbers!”

Mr. Malamud said his years of activism had led him to set a long-shot goal: serving in the Obama administration, perhaps even as head of the Government Printing Office. The thought might seem far-fetched — Mr. Malamud is, by admission, more of an at-the-barricades guy than a behind-the-desk guy. But he noted that he published more pages online last year than the printing office did.

Mr. Malamud represents a perspective of openness and transparency that is much in tune with the new administration’s, said Lawrence Lessig, a law professor at Harvard who is a leading advocate for free culture. “The principles are those that Carl has been at the center of defining,” he said.

The idea also seems to have a measure of appeal for John D. Podesta, a longtime fan of Mr. Malamud and head of the Obama transition team, who stopped short, however, of anything resembling an endorsement. “He would certainly shake things up,” Mr. Podesta said, laughing.

Mr. Malamud says he is not counting on the new administration’s being quite that bold. Besides, he said, he keeps himself awfully busy doing what he believes the government ought to be doing anyway.

“If called, I will certainly serve,” he said. “But if not called, I will probably serve anyway.”

NYT Article About Persona Management Software & the GOP

This article – with the relevant parts highlighted below – is here as a reference to this blog post about Aaron and Barrett Brown filing a FOIA together.

Aaron Swartz Filed a FOIA request, in collaboration with Barrett Brown, asking about Persona Management software. (Read the full story here, but here’s the document obtained via Muckrock.)

On the first page of the RFP, it shows its for a $2,760,000 bid  (see page 1).

Note that I am not saying this RFP was directly connected to the NY Times article (it probably isn’t) – but it does look like this kind of software:

1) has become commonplace among state actors

2) goes for about 3 million a pop – as both the RFP and the NY Times’ reported that the price of the software was around that price.

The New York Times explains how this kind of software can be used to influence elections, was probably used in the 2016 election.

Rick Gates Sought Online Manipulation Plans From Israeli Intelligence Firm for Trump Campaign

From the article:

After scouring social media accounts and all other available information to compile a dossier on the psychology of any persuadable delegate, more than 40 Psy-Group employees would use “authentic looking” fake online identities to bombard up to 2,500 targets with specially tailored messages meant to win them over to Mr. Trump.

The messages would describe Mr. Cruz’s “ulterior motives or hidden plans,” or they would appear to come from former Cruz supporters or from influential individuals with the same background or ideology as a target…

Each approach would “look authentic and not part of the paid campaign,” the proposal promised. The price tag for the work was more than $3 million…

A third document emphasized “tailored third-party messaging” aimed at minority, suburban female and undecided voters in battleground states. It promised to create and maintain fake online personas that would deliver messages highlighting Mr. Trump’s merits and Mrs. Clinton’s weaknesses or revealing “rifts and rivalries within the opposition.”

References:

1. Rick Gates Sought Online Manipulation Plans From Israeli Intelligence Firm for Trump Campaign By By Mark Mazzetti, Ronen Bergman, David D. Kirkpatrick and Maggie Haberman for the New York Times. https://www.nytimes.com/2018/10/08/us/politics/rick-gates-psy-group-trump.html

2. RFP that Aaron Swartz filed while working with Barrett Brown. (Courtesy of Muckrock)

Brewster Kahle at Aaron Swartz San Francisco Memorial 2013

Come to our Raw Thought Salon from 7-9 pm, with DJs afterwards till 2am :) – TICKETS

Originally posted on January 11, 2016:

Brewster Kahle at the Internet Archive, January 24, 2013
Brewster Kahle at the Internet Archive, January 24, 2013

From the San Francisco Aaron Swartz Memorial. January 24, 2013.

Link to Video on the Internet Archive.

Brewster does a great job of explaining to us about Aaron’s “Open Source Life,” and how “bulk downloading” (although it got Aaron into trouble) is in itself, is not only “not a crime,” but a desirable action with outcomes that benefit the public.

He also sheds light on Aaron’s ongoing quests to make U.S. legal court documents (via PACER) and works in the Public Domain (via GoogleBooks) more publicly accessible (rather than locking both up  behind paywalls or with cumbersome downloading restrictions).

Brewster Kahle:

I learned from Aaron what living an Open Source life was like. I think he really did live that way. He floated and helped others. He gave everything away. He really wasn’t tied to an institution. He really was not a company man in any sense. He was really quite pure in his motivations, and it made him incredibly effective at cutting through a lot of the stuff that most of us deal with.

An open source life.

He was able to keep his self interests at bay, which is kind of remarkable for a lot of us. But he was able to do it. And he was able to communicate well with an open smile and a kind heart. He had a way of communicating with this energy on things that mattered and he had a genius at finding things that mattered to millions of people. There are lots of things to work on, but the things that he worked on were incredibly effective.

We first met, I think, in 2002 at the Eldred Supreme Court case in Washington DC, where we drove a Bookmobile Across, celebrating the Public Domain by giving away books that kids made, and also then at the Creative Commons Launch. But I really got to know Aaron when he said ‘I’d really like to help make the Open Library website with the Internet Archive’ to go and give books and integrate books into the Internet itself. And he said “I’ve got this cool technology, called “Infogami,” it really made it possible to make Reddit happen. Let’s use it again for this other thing.”

And it was wonderful to work with him, but it was really unlike working with anybody else I’ve ever met. You certainly couldn’t tell him what to do, he just kind of did what was the right thing to do, and he was right certainly a lot more often than I was. We also worked together in other areas, when he was a champion of open access, especially of the Public Domain. Bringing public access to the Public Domain.

Most people think that’s kind of an obvious thing. Doesn’t “the Public Domain” mean that it’s publicly accessible? Of course all of us say “No!” It’s sort of like there are these National Parks, with moats and walls and guns turrets sort of pointing out, in case someone wanted to come near the Public Domain. And Aaron didn’t think this was right. And he spent a lot of time and effort freeing these materials.

One of the first ones that we were actively working together on was freeing government court cases, so that anybody could see this without having to have special privilege or money, and also to make it so you could data mine it, and go and look at these things in a very different way. So he freed and liberated a lot of court cases from the PACER system, and uploaded them, in bulk, to the Internet Archive, so that people could have access to these. There are now 4 Million documents, from 800,000 cases that have been used by 6 million people, because of the project that Aaron Swartz and others helped start.

It was an interesting project because it went over many different organizations, each playing a role and all cooperating in a very non-corporate way. It was a very Aaron style way of making things happen. And the idea of making court documents and legal documents available more easily struck a chord with me because, in college, I was trying to figure out how I was gonna try to get out of the draft. And my college didn’t have a legal collection, and the only way that I could try to get to legal court documents was to get an ID from my professor and break in to the Harvard Law Library to go and read court documents. That sucked! It really makes no sense, and Aaron not only sort of saw that it doesn’t make sense. He decided he was going to try to help solve this. Not just for himself, but for everyone.

Then there was other Public Domain collections like the Google Books Collection. Google Books was a library project to go and digitize lots and lots of books. A lot of them were Public Domain. Google would make them available from their website, but really really painfully. It would make it so if you wanted one book, you could get one book. If you wanted 100 books, they would turn off your IP address forever. This is no way to have public access to the Public Domain, and the Internet Archive started getting these uploads of “Google Books.” Going faster, and faster, and faster. Like well, where are these coming from? Well it turns out it’s Aaron. He and a bunch of friends figured out that they could go and get a bunch of computers to go slowly enough to just clock through tons of Google Books and upload them to the Internet Archive. Interestingly, Google never got upset about it. The libraries, on the other hand, grumbled. Which is so… Well anyway. They’ll get over it.

So, when this started happening, we said “Ok. What’s going on? Should we be concerned?” The answer was “No, it’s Public Domain.” We just made sure that we got the cataloging data right, and we linked back to Google, so that if you’re on the book, you can go back to the original page and see the da da da da da. And it all worked well.

But there it was. Aaron doing it again; bringing access to the Public Domain.

What is crushing to me is that Aaron got ensnared by the Federal Government for doing something that the Internet Archive actively encourages others to do for our collections, and we think all libraries should encourage, which is: Bulk downloading to support data mining and other research using computers. This is just the way the world works.

The first step is for a computer to read and analyze materials is to download a set of documents. When Aaron did this from one library, JSTOR, they strongly objected, and demanded that MIT find and stop that user, which then led U.S. Prosecutors to pull out their worst techniques.

Did anybody stop to ask if bulk downloading is a crime? I say “No. Bulk downloading is not, in itself, a crime.” Let’s stop this practice of discouraging bulk downloading, because there are encouraging projects that are learning amazing new things by having computers be part of the research process. Let’s not stop this and discourage young people from coming up with new and different ways to learn things from our libraries.

What resulted, in this case, was tragic, and not necessary. Really, what we want is computers to be able to read. Aaron knew this. We’re all building this, and he got ensnared anyway. Let’s let our computers read.

Because of this tragedy, JSTOR, whom I talked to this morning, and the Internet Archive, have agreed to meet to discuss the broad issue of data mining and web crawling. I hope that we really make progress. At least there’s reasons to be positive.

This assault on Aaron would disillusion, discourage and depress any principled young man, and if there ever was a principled young man, it was Aaron Swartz.

We miss you, and we will carry on your important work.

Link to Brewster’s talk on video at archive.org

All Speakers, SF Memorial, at archive.org

Open Mic Portion of memorial (Includes John Perry Barlow and many other incredible talks)

Barrett Brown and Trevor Timm at Aaron Swartz Day 2018’s Evening Event

Link to YouTube video Internet Archive VideoAudio (.wav)

Trevor Timm and Barrett Brown

Partial transcription:

Trevor Timm: Could you tell us a little bit about what the theme is of your memoir…What are you trying to get across to readers?

Barrett Brown: There are a couple sort of overlapping issues. One is that, these institutions that we’ve inherited. We should not be surprised when they fail. They weren’t invented by philosopher kings with unlimited resources and the ability to implement their vision. They grew up haphazardly by very imperfect people and are frequented and designed and maintained by certain subsets of people that sometimes are outright psychotic. And other times, when they are noble, have their hands tied.

So, we have these institutions crumbling and proving themselves to be less solid than we once assumed them to be. That’s important.

The other important aspect of our age is that we can no longer look back on the 80s and 90s or 60s or anytime prior to determine what’s possible. To determine what’s viable or probable. The framework, the environment in which human collaboration occurs has changed so fundamentally and drastically in a historically short period of time that we cannot base our course of action, or the experiments we undertake, or the things we do on what others were able to pull off. We just can’t. What we can do, is always keep in mind that all human collaboration; Human collaboration is where all this comes from. All of our states. All of our laws. All of our problems. And so when the means change, and the possibilities suddenly increase in ways that we can’t understand yet, we have to explore all of these options. And I think it’s viable to really be able to do that in an effective way in the next decade or so, with Pursuance and all of these other things that are coming out.

Trevor Timm: Absolutely. (pause) With this being Aaron Swartz Day, I’d love to hear from you; Did you actually know Aaron personally? If you did or if you didn’t: How do you think about his legacy?

Barrett Brown: I didn’t really know him. I think I encountered him once or twice online.

He (Aaron) once offered to do an FOIA request on persona management. One of my interests back then. One of these disinformation propaganda methodologies that have come out of the intelligence contract industries, and had been encouraged by various states. Something that I think is very dangerous. So he offered to do his thing on that. To explore the possibilities and see if we could get some information on it. And the interesting thing about that is that I’d sort of forgotten about it until very recently. I’m not sure where that was left. I’m not sure if he got some results back. Someone asked me about it.

But it showed Aaron Swartz knew what was important. He agreed with me on this one aspect of these propaganda methodologies being important, and he also anticipated all of us in envisioning a different kind of internet that we didn’t accept from last year, that we’d actually build from the ground up according to our values…

(Yes, the sound mysteriously goes out for 15 seconds at the end, but probably it was just operator error as there were many errors throughout the broadcast – many apologies and I PROMISE we’ll have a professional webcaster next year :,-(

The Kitchen Sisters Profile Aaron Swartz Day Co-Founder Lisa Rein as “The Keeper of the Day”

Aaron Swartz Day as told by Lisa Rein

Aaron Swartz Day co-founder Lisa Rein talks about about her work with the annual hackathon. Founded in 2013 after the death of activist and programming wunderkind Aaron Swartz, the event draws attention to Aaron’s story in hopes of protecting others from similar circumstances and offers a yearly showcase of the many projects initiated by Aaron as well as new projects inspired directly by him and his work.

Lisa also talks about her background as archivist for Chelsea Manning: “When I learned more about Chelsea, without getting into whether you agree with what she did or what she didn’t do, she definitely followed her heart and wanted to improve the world and that’s an Aaron Swartz Day thing.”

The original tracks by Lisa used in this piece include: Hiding, Slipping Away, and It’s Alright.

Produced by Michal Wisniowski and The Kitchen Sisters

Lisa Rein, Co-Founder, Aaron Swartz Day. Chelsea Manning’s Archivist, Dr. Timothy Leary’s Digital Librarian (Photo: Kevin Footer – Art Design/Concept: Kenneth Bryan Smith)

Live Stream Link and Everything You Need To Know About This Year’s San Francisco Event

LIVE STREAM: https://tinyurl.com/ASDLiveStream

Here’s a little index that we’ll keep adding to over the next day or two:

TICKETS                           Located at: The Internet Archive

Projects to Hack On at the Conference (so far – as people can invent their own projects at any time over the course of the weekend!) (Including projects for non-programmers!)

Speaker Schedule (Saturday and Sunday)

VR Faire (new page coming soon), featuring:
-The EFF’s “Spot the Surveillance
Noisebridge‘s BCI (Brain Computer Interface) Application,
(new page coming soon)
GameBridge‘s VR Tour of Noisebridge

Awesome plant-based food by LeCupboard

Opening Night Party at the DNA Lounge