Life Inside the Aaron Swartz Investigation

Once your life is inside a federal investigation, there is no space outside of it. The only private thing is your thoughts, and even they don't feel safe anymore. Every word you speak or write can be used, manipulated, or played like a card against your future and the future of those you love. There are no neutral parties, no sources of unimpeachable wisdom and trust.

It is the loneliest of lonely things to be surrounded by your loved ones, in danger, and forced to be silent.

May you never experience a Federal investigation. I did, and it consumed me, and changed everyday that will come after it for the rest of my life.

It all began with a call from Aaron Swartz on a jail-room phone. This essay is my attempt to explain what happened between that call and my friend's suicide. This will not be the final word on Aaron's story, nor is it intended to be.

Two years later, these are the events as I remember them, and the feelings as I knew them.

* * *

Aaron and I were best friends. We'd been the voice in each other's ears and silent textual companions online for more than four years. We were a daily presence for each other, no matter the number of miles that separated us.

RELATED DOCUMENTATION

If you haven't been following the Aaron Swartz case, see the Editor's Note for context.
A letter from Quinn Norton to prosecutor Steve Heymann
Norton's reflection on the case shortly before meeting with prosecutors
Norton's subpoena
For the first year, we lived together. Being just roommates lasted less than a month, and we entered a powerful and sometimes difficult relationship which we decided would only last a year. We spent the next three years trying and failing to cleanly end our romance. He was an incredibly secretive person, private about our life together, his thoughts, and the events of his life. I was a nosy reporter, always trying to get things out of him. He would never tell me how much he was paid in the Reddit sale, and his reticence came a running joke between us: me prying, cajoling, pressuring, and Aaron, never giving in.

On January 6, 2011, I got a call on my mobile phone from a number I didn't recognize. Usually I don't answer unknown numbers. This time I did. I heard Aaron's voice: scratchy, distant, nearly inaudible. He'd been arrested. I didn't ask him what happened. I only asked him what he wanted me to do.

He needed bail. He had a lawyer, Andy Good, in Boston. I had to get a hold of this lawyer and find someone to bail him out. I found a local friend, who went and got out $1,000 to post Aaron's bail. I didn't ask any questions. Neither did my friend.

The rest of January went on in a strange haze. Neither of us seemed able to believe this was serious. Aaron eventually told me it was computer related, something about a wiring closet at MIT -- explaining only the contents of his arrest record.

I am a journalist of hackers. They are my beat and my friends, so I'd seen people harassed and persecuted. Some piece of research or conference presentation would suddenly become an investigation, phone calls and meetings with lawyers. We came to expect raids, surveillance, and threats from powerful men who couldn't tell the good guys from the bad in my world.

February brought the inevitable raid. The Secret Service came to his house and his office at the Harvard Ethics Center and took hard drives and computers. Aaron's phone was taken. He got an iPhone to replace it. I asked him if I could have his old phone when he got it back. He said, "Sure. It might be a while."

I knew that Law Enforcement could be terrible about getting things back in a timely manner. But I couldn't yet imagine it would be years, or that there might be a trial. Most of these cases, even the PACER affair that had interrupted life and scared us in 2009, resolved with the police simply going away.

In early March I was staying at a friend's loft in the Bay Area. Someone knocked at the door of the loft, and I ran downstairs, still dressed in my pajamas, and answered the door. It was a tall man and a short woman in blazers and unmatched trousers. They had the dowdy cleanliness of law enforcement. They said they were from the Secret Service and that they wanted to ask me a few questions. Shocked and unsure of myself, I let them in to talk to me. One should never, ever do this.

They asked about Aaron, I told them I didn't know anything. They pointed out that he'd called me, and asked what he told me. I told them I hadn't asked anything about his arrest, and they were incredulous.

Eventually I ran out of things to tell them, and they produced the real reason for their visit: a subpoena. The prosecution wanted my communications with Aaron, anything we'd shared, any time I'd talked about JSTOR or MIT or the case with anyone. It was pages of demands for my digital life with Aaron, the private world we'd shared. There was a grand jury date listed as well: "YOU ARE COMMANDED," it read.

I had to Google grand jury to find out what it was.

I did know I'd need a lawyer. I went to a lawyer friend and explained I was broke. She thought of someone she'd worked with once in Boston and gave him a call about helping with my case, pro bono. I didn't understand how any of this worked. In time, I would dub the case the "World of Shit I Don't Know."

A week before the Secret Service came to the door, my car was rear-ended by a school bus. The car itself was totaled, but I thought there'd been no injuries, just a little soreness in my neck. Within a few weeks the stress of the case and the neck pain would develop into a cycle of torturous daily migraines, a pain so rich it blotted out thought for hours a day. It was the second time this had happened to me, the first being in 2007. In both cases the standard complement of migraine medications weren't very effective: only opioids worked, and my doctor put me on Vicodin.

And so, scared, naive, and in pain, I met my lawyers Adam and Jose, from the firm Fish and Richardson in a beautiful and shiny building next door to and towering over the federal courthouse. The building looked like a modernist space station, the Jetsons with cleaner lines and an endless sense of power and money. I am a hackerspace girl who has grown up broke, sometimes too broke to eat, with a drug dealing Vietnam vet dad. I felt immediately and continually out of place. I met my lawyers many times, but I never felt comfortable.

In that first meeting, I told them I would be a good client and that I was deeply grateful for their help. I was. They told me not to talk to Aaron, that I shouldn't stay with him. I did anyway. Sometimes we just needed to hold each other. Sometimes we needed to say something. But we tried to and mostly obeyed the proscriptions on talking abut the case.

As strange as it seems now, when I was first subpoenaed, Aaron was more worried about me than him, and both of us were worried about Ada, my seven-year-old daughter. She was the light of both of our lives, and we wanted to make sure none of this would touch her. The problem was my computer. It contained interviews and communications with confidential sources for stories going back five years. The subpoena didn't actually call for my computer, but materials on my computer. Jose and Adam implied that if the prosecutor didn't think I was being honest, he might move against me, seize things.

And if the prosecutor took my computer, I would have to go to jail rather than turn over my password. I had no choice. I'd been logging all of my communications for years, professional and personal. Aaron knew this, and he was furious at me for it when he read the subpoena. It was a kind of impersonal fury, not directed at me and my decisions, but the situation itself. "Why did you log?" he asked me repeatedly. I told him that it had kept me sane in my divorce. But he already knew that, he'd been there.

These days, I not only don't log, I refuse to talk to anyone who does. I often refuse to communicate without encryption. But I had to continue to log during the investigation. I was told that changing my behavior while being investigated could be held against me, because in an investigation it is suspicious to learn from your mistakes.

Aaron and I sat together in his place one night in March. He could see I was scared and he held me. He told me that Steve Heymann, the prosecutor, had offered a deal: three months in prison, three months in some sort of halfway house, and three months probation, and one felony count. He told me he would take it if I wanted him to.

We talked about it, about what a felony count would mean to him, to his life and his dreams in politics. I thought about my father, sent away to state penn when I was 17, and how it had crushed him. He'd not lasted long after prison.

To be a felon in this country is to be a pariah, to be unlistened to. Aaron wanted more than anything to speak to power, to make reforms in the very system that was attacking him now. In most states a felon can't even vote. The thought of him not voting was unfathomable.

But the truth is I wanted him to take the plea deal and end it. I wanted to not be scared anymore, to not deal with these people anymore. Nine months didn't seem so long, and I came very close to asking him to do it. But I looked at him, and I thought about PCCC (the first of his political action groups), Demand Progress, and Washington DC, and all the work he'd done. "If you want to fight it, you should fight it," I told him. I told him I would support him.

I've spent many nights this year, awake, wishing I'd been a little more selfish that day. We were at the mercy of a man we didn't know and who we'd never met. We were in his power, but we didn't know it yet.

Aaron said Steve had been furious when he turned down the plea. He sometimes screamed at my smiling and compliant lawyers over the phone until they visibly shrank in their seats, glancing uncomfortably at each other.

Despite this, my lawyers very much wanted to play nice. They explained there were two ways to approach a prosecutor, hostile and friendly. They told me they didn't know this prosecutor, but that they favored a cooperative approach.

I wanted to be friendly and cooperative -- it was how I got through life. I didn't know anything the prosecution cared about, and I thought that maybe I could talk Steve out of the prosecution, or at least into not being so harsh. This was so obviously a ridiculous application of justice, I thought. If I just had the chance to explain, maybe this would all go away. My lawyers told me this was possible. They nursed this idea. They told me Steve wanted to meet me, and they wanted me to meet him. They wanted to set up something called a proffer -- a kind of chat with the prosecution. Steve offered me a "Queen for a day" letter, granting me immunity so that the government couldn't use anything I said during the session against me in a criminal prosecution.

I went home and started researching what a proffer actually was, and how it might work. I learned that the "Queen for a day," or proffer, letter was often used by targets of the investigation to negotiate deals of lighter sentencing in exchange for information; in short, it was the mechanics of snitching. I was outraged and disturbed. I didn't want a deal, I didn't want immunity, I just wanted to sit down and talk about the whole terrible business, to tell them why this case wasn't worth their time, and Aaron didn't deserve their attention. I didn't need a deal, and in fact, given that I had nothing to offer the government's case, I didn't think I even qualified for it.

I asked my lawyers to refuse, and we fought about it, repeatedly. They brought up things from my past that could be used against me; not criminal behavior per se, even they admitted, but they wanted me to have immunity. I had a terrible headache, and eventually gave in.

Aaron was furious. He told me not to meet Steve. But no one, including Aaron, would tell me why. No one would tell me even how to get out of it. And still I had an unshakable belief that if I could just somehow explain all this it would go away. I delayed once, too sick to go. My lawyers told me Steve was furious at my medical delay. I might be arrested. I told Aaron, and others, that I wanted to talk to Steve human to human.

As I learned more and more about the proffer, I realized it wasn't the straightforward sit down and chat Adam and Jose had told me it was. There were different types -- some quite positive -- but there seemed to be no way to tell what I was walking into. Aaron told me his lawyer was angry too, that I was being an idiot. I began to wonder (stupidly, and to myself) if he thought my contempt arrest would help his case. He wondered, loudly, whose side I was on.

My lawyers were starting to get into fights with other lawyers, sometimes screaming fights, and the lawyers' stories weren't matching up. I was getting more ill, headaches everyday and unable to get properly treated due to insurance problems. My thoughts of talking the prosecutors out of this foolish attack on Aaron were fading, even as Jose and Adam still encouraged me to try.

Mid-April was our lowest moment together, but still Aaron would come to my place to read. This was so like him. He'd grab a book like we were touching Safe in an endless and bitterly exhausting game of tag, pull my arms around him, and read to me. Sometimes, we'd fall asleep like that. It felt as if these moments were what kept us both alive.

But other times, the case would come back, intruding on our touch, creating space between us and filling it.

I knew by the week of the proffer that it wasn't what I wanted, but I saw no choice. I thought that I would be raided or possibly arrested if I tried to back out, that my lawyers would terminate their relationship with me, that I would be out on my own. All the time I was trying to hold it together for the outside world.

Aaron was not just terrified for himself, he was terrified of something happening to me. We talked about how Ada would be if I went to jail. As the proffer approached, even he turned to helping me, trying to figure out how to make the best of it.

I insisted again to Aaron that I would be kept safe by my total ignorance on the matter. He was never comforted. We accused each other and forgave each other nearly daily. We were so angry: him at my proffer, the logs I'd kept, at the person closest to him being compromised. And me, I was terribly angry at the very thing I said would keep me safe: my ignorance of his JSTOR activities. Why hadn't he told me anything? Why had he let me get sideswiped by all of this? Why, above all and for the love of God, had he gotten caught?; It was always my first rule of doing anything that power might frown upon in any way: Don't get caught.

A friend in New York told me about an old Scandinavian word exported to Scotland -- fey -- that specifically referred to the sense of the doomed approaching their last battle, unable to do anything but go forward. I wandered around gently repeating it to myself. I would argue for Aaron with the prosecution, but I knew I was too weak and sick to make the showing I'd hoped for. I was fey.

* * *

On April 13th Jose and Adam and I went to the courthouse, finding our way to a small windowless fluorescent office stacked with disused file boxes in the corners. Our office chairs barely fit around a table. A friend had given me a tweed skirted woman's suit to wear for the day. It was slightly too big, and it made me feel small and awkward. We were trying to make me look respectable, non-threatening, like one of them. We were dressing me up to walk into the lion's den. (Apparently, lions call for tweed.)

We were six at the table: my two lawyers, Steve's two Secret Service men, me, and Steve. Everyone was in suits except for Steve, who kept us waiting for a few minutes, and came in dressed in fleece and plain pants, all casual power.

I made it clear to everyone before we started that I was on Vicodin, per my doctor's orders. I produced medical records, which everyone ignored. Steve said we could take breaks any time I needed to. One of the agents and Adam took out identical legal pads to take notes on at opposite ends of the table. I was given water, and we began.

At first they didn't ask me about Aaron. They were questioning me, trying to get me to admit I knew something. They made me retell everything Aaron had told me, but it was all taken directly from their own arrest record. The harsh questioning about me threw me off balance.

They leaned in and loomed over me physically, calling me a liar, scowling and pausing and narrowing their eyes at me. I was cowed. Much of the time I spent telling them the same things, that I didn't know what he'd been doing, that I never asked what the arrest was for when he called me. They told me that was unnatural; they didn't believe me. I wanted to say, "Of course I wouldn't ask! There was a chance I'd be dealing with you people."

They said I must have known something because I was connected with hackers. They knew this, they told me, because they'd read everything I'd ever written online. I bit my lip. I fought the urge to say "If I'd known, we wouldn't be here. There's no chance you would know a thing."

They said they knew we were close because they'd found a car seat in his apartment. I really did look at them like they were idiots at that point. We'd been together for years. A simple google query would show more than a car seat.

Steve asked if there was anything I knew of to suggest why Aaron would do this, or what he thought about academic journals. I cast around trying to think of something, something that made sense to them, when Aaron had just gathered these datasets for years, the way some people collect coins or cards or stamps.

I mentioned a blog post. It was a two-year-old public post on Raw Thought, Aaron's blog. It had been fairly widely picked up by other blogs. I couldn't imagine that these people who had just claimed to have read everything I'd ever written had never looked at their target's blog, which appeared in his FBI file, or searched for what he thought about "open access" They hadn't.

So this is where I was profoundly foolish. I told them about the Guerrilla Open Access Manifesto. And in doing so, Aaron would explain to me later (and reporters would confirm), I made everything worse. This is what I must live with.

I opened up a new front for their cruelty. Four months into the investigation, they had finally found their reason to do it. The manifesto, the prosecutors claimed, showed Aaron's intent to distribute the JSTOR documents widely. And I had told them about it. It was beyond my understanding that these people could pick through his life, threaten his friends, tear through our digital history together, raid his house, surveil him, and never actually read his blog. But that seemed to be the fact of it.

It was also beyond my imagination that they could find something generous and good and think this made their case, that this was what made this case more important than all the ones they hadn't pursued. I told them academics hated the system as it existed -- everyone did, except Elsevier. I even talked about the US government mandating open access. They looked bored. The manifesto was their one happy moment in a session of frustration, anger, and veiled threats of prosecution for me. All of it -- what they cared about, what made them angry, what made them happy -- made no sense to me at all.

Steve asked if I had any last comments. I said yes. I told them I'd done this because I believed that people should be able talk plainly and be able to resolve things. I told them they were on the wrong side of this case, of history. I told them that I was trying to behave with honor, and that despite all the insults they'd thrown at me, I still believed that they could understand and see the right thing to do. I told them Aaron was an amazingly good person, that his work touched their lives everyday. I told them this case was ridiculous, I told Steve not to do this. They listened in silence. At the end of the proffer, Steve asked if I had any questions. I said yes, that I wanted to know why he was doing this. He told me that he couldn't tell me yet, but that he had good reasons. Steve told me he would tell me eventually.

I'm still waiting.

Several hours after the proffer, as Aaron and I sat in the Luna Cafe in Cambridge, it had not sunk in that I'd accidentally betrayed someone I loved. It was so mind-numbingly stupid on the part of these powerful men, these elites of law enforcement, that I couldn't conceive that I'd actually harmed Aaron.

Aaron was incredibly angry with me. I pointed out that any journalist worth a damn would have the manifesto in no time; he agreed, but said these guys weren't as smart as journalists. I said the press would uncover it when the case went public. He told me, as he had so many times before, that the press wouldn't be interested in the case. We were both wrong.

"I just went in there to tell them you were a good person, and to not do this," I told him.

"Why didn't you?" he asked me, still angry.

"I did." He looked away.

I told him I couldn't live with the thought I'd hurt him. And once again I pleaded with him. Why didn't you talk to me, let me help? I could have kept him safe. I could have at least tried. He got up and walked out, angry.

What was done was done, and we had to learn to live with it. We fought, and I apologized for the proffer. I'd done the wrong thing. I was sorry. I wanted him to apologize back, not for doing it, not for the nightmare we were living through now which I never accepted as his fault. I just wanted him to say sorry for getting caught.

Aaron told me that Steve had been viciously gleeful to Andy about the manifesto, that he'd said Aaron would never get as good a deal as he'd turned down now that they had that bit of evidence.

Later I listened to Aaron on the phone with a journalist describe downloading 400,000 law journal articles to do text analysis revealing what kind of legal research was being funded by what kind of companies in 2008, and publishing an academic paper at Stanford about it, all as explanation of why he might have downloaded the JSTOR articles. It was the best answer legally to the question I'd been asked in that small fluorescent room surrounded by big men. Listening to him say that I felt my insides collapse.