The public lost another battle in the U.S. v. Aaron Swartz case, this one over transparency. On May 13, 2013, the U.S. District Court judge handling the prosecution sided with the government, the Massachusetts Institute of Technology and JSTOR and refused to make public any information in the case that any of these three entities wished to keep under seal. The ruling effectively grants the Department of Justice, MIT and JSTOR a veto over what the public gets to know about the investigation. 

The decision stems from the government's controversial prosecution of Aaron Swartz, the brilliant activist and Internet pioneer, who died in January. The government brought a myriad of charges against Swartz, most notably under the draconian Computer Fraud and Abuse Act (CFAA). After his tragic death, there were widespread calls for an investigation into prosecutorial misconduct and reform of the CFAA, and in response, Swartz's lawyers had asked the court to unseal the vast majority of evidence in the case since all charges have been dismissed for months.

The specific information at issue is identifying information for JSTOR, MIT and certain law enforcement personnel, along with any information "identifying and sentitive network information." As Swartz's attorneys have noted, the proposed redactions includes job titles and other information needed to understand who was talking to whom in the voluminous email traffic, and it's impossible to follow what happened in the course of the prosecution without it. This information is vital in understanding how involved MIT was in the prosecution and at what level in the institution, when and how JSTOR was involved and whether the Justice Department's repeated public assertions that everything in the prosecution proceeded normally were accurate.

The Court gave short shrift to the great public interest here, dismissing it as significantly less important than the vague and largely unspecified "incidents of harassment and retaliation" claimed by the government, MIT and JSTOR. The judge used these alleged incidents as justification for removing nearly all identifying information of those involved—regardless of how likely they were to be actual targets for retaliation. It is difficult to believe that this case posed a bigger threat of retaliation than other federal cases involving violent offenses or organized crime, such that broad witness secrecy is required even after the case has ended.

Similarly, it seems unlikely that in a prosecution say, for a burglary, the victim would be able to prevent public access to any facts about how the incident occurred (was a crowbar used? a fake key?). Yet, here the court allowed MIT and JSTOR to prevent any information from being released about the broad term "sensitive network information." 

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The big losers in this case are the countless number of Americans of who have raised legitimate and serious concerns about the prosecution of Aaron Swartz and who have urged Congress to reform the CFAA.  With the facts and identities locked away, and only selectively revealed to Congress by the three entities most interested in defending the prosecution, how can those of us pushing for reform lawmakers determine what changes are needed? How can we respond to the government's repeated claims that nothing went awry here?  The result of this decision excuses accountability by denying the public access to the facts it needs to engage in the democratic process and fix the law.

The Court did note that if Congress wishes to know more, it can ask JSTOR, MIT or the government "on a case by case basis." We hope that members of Congress, who just received a secret briefing from the DOJ, will take the court up on this offer and, to the extent they are thwarted, go back to the court for further relief.