US Prosecutors Turned a Blind Eye to Drone Code Piracy

Posted by Bill Conroy They Chose Instead to Strap Digital Visionary Aaron Swartz to Their Buzzsaw

Aaron Swartz, a 26-year-old Internet activist and the co-developer of popular web tools like RSS feeds and Reddit, ended his life earlier this year at the end of a long battle with federal prosecutors in Boston — who had accused him of engaging in digital piracy.
Under the umbrella of the Computer Fraud and Abuse Act, the prosecutors in Swartz’ case, led by US Attorney Carmen Ortiz, piled multiple criminal counts on him that collectively could have locked him up for a quarter century. His alleged transgression: Stashing a laptop computer in a closet of a building on the Massachusetts Institute of Technology campus (where Swartz was a research fellow) and using it to download several million academic articles — many the product of taxpayer funding — from the archives of a nonprofit online library called  JSTOR.
Nobody was harmed in Swartz’ alleged crime, and JSTOR itself argued against pressing charges, but federal prosecutors pressed forward zealously, seemingly looking to make Swartz a stepping stone for their careers. However, US Attorney Ortiz, and her team of legal hounds, sparked international outrage for their actions when the target of their prosecutorial persecution, by then a cult hero in the tech world, on Jan. 11 committed suicide by hanging himself in his New York apartment.
But there is far more to this sordid tale of justice gone awry that so far has remained suppressed by the very powers that ultimately destroyed Swartz’ life.
It turns out that the same prosecutors who chose to bury Swartz under an avalanche of computer-fraud charges chose not to pursue prosecution of another far more serious alleged corporate computer crime that came to light only months prior to Swartz’ January 2011 arrest by MIT and Cambridge, Mass., cops. In the corporate caper, lives did hang in the balance, as did the financial fortunes of a major US corporation, IBM — where US Attorney Ortiz’ significant other was employed as an executive.

Predator Software

The corporate software-piracy intrigue was revealed via a lawsuit involving two Boston-area tech companies — high-speed computer maker Netezza Corp. (which was acquired by IBM in early November 2010 in a deal valued at $1.7 billion) and software developer Intelligent Integration Systems Inc. (IISI).
The initial pleadings in the breach-of-contract lawsuit were filed in Suffolk County Superior Court in Massachusetts in November 2009 (within days of US Attorney Ortiz assuming office). The case revolved around a series of claims and counterclaims related to a sophisticated, analytical software program, known as Geospatial, that was developed IISI.
The software is capable of integrating at extremely high speeds spatial data, such as maps and visual images, with non-visual data, such as names and phone numbers.
Netezza, in its pleadings, claimed that IISI, per contract, was required to upgrade the Geospatial software code to make it work on Netezza’s data-warehouse computer platform, called the TwinFin. IISI argued, and the court ultimately agreed, that it was under no such obligation.
In the wake of IISI refusing to adapt the Geospatial software to the TwinFin on Netezza’s timeline, IISI asserted in court pleadings that Netezza proceeded to develop a re-engineered (or pirated) version of the software that was flawed. The company then loaded that defective software on the TwinFin platform and sold it to the CIA for use in the agency’s Predator drone program.
Netezza’s actions carry potentially criminal implications. It in essence misappropriated sophisticated computer software developed by IISi; hacked that software to adapt it for use with its computer products; and then sold that computer hardware and hacked software, which did not work properly, to the US government — including the CIA, for use in tracking targets for drone missions. According to the court pleadings, that flawed software pirated by Netezza produces calculations that are “a little off, from 1 to 13 meters” (roughly up to 40 feet) — which is not of small significance in a drone program that makes use of Hellfire missiles in exterminating targets.
In late August 2010, the judge in the Netezza/IISI litigation issued a summary judgment in the case in favor of IISI
“Unbeknownst to IISI at the time, Netezza had already represented to the US Government that Geospatial was running and available on the TwinFin [computer], when in fact it was not, and had been representing, at trade conferences, that it had a geospatial product that ran on its new TwinFin computer, when in fact it did not,” the judge’s ruling states. “On September 11, 2009, at a time when IISI was still reporting that it needed physical access to a TwinFin to set up a proper development environment, Netezza received a purchase order from a company acting for the U.S. Central Intelligence Agency (‘CIA’) for a TwinFin priced at over $1 million, and a software product referred to as ‘Netezza GeoSpatial for Netezza TwinFin 12’ which in fact did not exist.”
The civil case was settled out of court on terms quite favorable to IISI on Nov. 10, 2010  — two months prior to the arrest of Swartz and a day prior to the closing of IBM’s purchase of Netezza. However, the underlying claims of software misappropriation, software hacking and fraudulent sale of that code to the US government, as alleged by IISI and substantiated in the judge’s ruling, were never addressed by US prosecutors — at least in public sunlight.

 The Public Arena

The Netezza/IISI litigation, including the judge’s ruling for IISI, received extensive media coverage at the time. The lawsuit was covered in depth by a financial publication called thestreet.com and Narco News in the summer of 2010. That coverage was followed by a series of reports in mainstream publications that jumped on the bandwagon, including CNET News, Fast Company, the Register in the United Kingdom and the Washington Post.
In addition, a powerful Congressman had taken an interest in the Netezza/IISI litigation and was making inquiries behind the scenes, to the extent that Netezza’s attorneys from the connected and well-heeled law firm WilmerHale (which has headquarters in Boston and Washington, D.C.) also became aware of the Congressman’s involvement. As a result, WilmerHale attorneys peppered IISI co-founder and CEO Paul Davis with questions about the Congressman in a deposition carried out at WilmerHale’s offices in Boston in April 2010.
That Congressman is Adam Smith, D-Washington, who in early 2009 was appointed to the House Permanent Select Committee on Intelligence and in late 2010 became the Ranking Member of the powerful House Armed Services Committee. Smith also played an important role in the 2004 presidential campaign of then US Senator John Kerry, D-Mass., serving as chair of Kerry’s campaign in the state of Washington.
While the Netezza/IISI litigation was still pending, US Rep. Smith even contacted Davis in an effort to set up a meeting between IISI executives and the CIA, according to the April 2010 deposition.
“The only thing that he [Smith] said basically was he — he had the — you know, he had the impression that our software was valuable,” Davis states in the deposition, in response to a question from a WilmerHale attorney. “He [Smith] had indicated to them [the CIA] we were willing to meet and it was sort of in the CIA's court as to whether or not they were going to follow up.”
However, a meeting with the CIA never took place, Davis indicates in the deposition.
WilmerHale, which represented Netezza both in the litigation and also in the IBM acquisition deal, does know its way around Washington, D.C. In 2009, the Obama administration tapped WilmerHale partner William Wilkins to serve as chief counsel for the IRS and assistant general counsel for the US Treasury Department. Also, Stephen Preston, another WilmerHale partner, was appointed that same year to serve as chief counsel of the CIA.
And WilmerHale also is plugged into the US Department of Justice, where WilmerHale partner David Ogden served as Deputy Attorney General (second in command) from 2009 to 2010, after which he returned to the law firm’s Washington, D.C., office.
Given the media coverage and political reach of the Netezza/IISI litigation, it seems a stretch to accept that the US Attorney’s Office in Boston, or US Attorney Ortiz, were completely unaware of the case. And it also seems plausible that Ortiz’ husband, Tom Dolan, an IBM business development executive who works in the Boston area, also might have been clued into the lawsuit.
Dolan certainly was quite familiar with the Swartz case. He made a splash in the Boston-area media earlier this year after using the social media site Twitter to lambaste the Swartz family for blaming his wife for their son’s death.
From a Jan. 16 story in the Boston Globe:

In one tweet posted late Monday, on the eve of Aaron Swartz’s funeral, Thomas J. Dolan, an IBM executive who married Ortiz in July 2011, wrote: “Truly incredible that in their own son’s obit they blame others for his death and make no mention of the 6-month offer.”
Dolan was referring to a purported ­offer by prosecutors to recommend a six-month prison term for Swartz, who faced up to 35 years if he agreed to plead guilty to felony charges for using MIT’s computer network to download massive numbers of scholarly articles.

Dolan and Ortiz were engaged to marry on Jan. 1, 2010, according to another Boston Globe story.
Narco News did attempt to contact IBM for a comment for this story, and in an effort to reach Dolan, but company officials did not reply.

The Great Dodge

So, it seems, the US Attorney’s Office in Boston chose to pursue extreme criminal sanctions against a young, powerless kid, Swartz, whose alleged crime was described by one Internet activist group as similar to “checking too many books out of the library.” Yet, at nearly the same time, it chose not to even investigate a case in which a corporation, through executive decisions, allegedly misappropriated and hacked software and then sold that faulty computer code to the US government for use in a deadly application — the drone program.
It should be noted that the financial stakes for Netezza and the company that acquired it in November 2010, IBM, were quite high had a criminal case been initiated. What IBM was acquiring with its $1.7 billion purchase of Netezza was, in large part, a major book of government business, which would have disappeared had Netezza been disqualified as a government vendor.
Netezza’s exposure on that front is outlined in an e-mail entered into evidence in the Netezza/IISI case, sent on Oct. 12, 2009, by Netezza CEO Jim Baum:

Our USG friends [among which is the CIA] have ordered 10 Mustang racks and 14 TwinFin racks (all but 2 are also delivered) since the deals started to flow last year around this time. Add that [to] the deal for TwinFin and SW-only systems that is brewing and I think that total’s getting close to $40 million. Not bad, considering the process only really got started about 18 months ago. Why couldn’t this be more like $100M by the end of 2010. I wouldn’t bet against it.

Netezza, then, had a lot riding on its vendor relationship with its “USG friends.” And by extension, so did IBM, which was still in the process of conducting due diligence for the Netezza acquisition when the judge’s ruling came down in the litigation in late August 2010.
The US Attorney’s Office in Boston declined to comment on what actions, if any, it took in relation to the Netezza matter.
“Department of Justice policy precludes us from commenting on your questions,” said Brandy Donini-Melanson, spokesperson for the US Attorney’s Office for the District of Massachusetts.
IISI’s Davis, though, isn’t convinced that US Attorney Ortiz’ office can so easily wash its hands of the Netezza case.
“I have reason to believe that the US Attorney’s Office in Boston [which Ortiz leads] was aware of the judge’s decision [in IISI’s favor] and chose not to investigate,” Davis told Narco News.
Davis added:

We expected that the decision of the Superior Court would appear to be very powerful to local prosecutors. The Court’s business litigation section [which heard the Netezza/IISI case] is praised by the downtown [Boston] corporate law firms.
The summary judgment in IISI’s favor met a standard that approaches a criminal standard as much as a typical civil one. Even with the facts viewed in a light most favorable to Netezza, their breach of contract action was dismissed and our counterclaim [alleging fraud and software misappropriation] was granted.”

Houston attorney Ron Tonkin, a former federal prosecutor who now represents government whistleblowers, told Narco News that given US Attorney Ortiz’ “intimate” relationship with IBM executive Dolan, and IBM’s business interests in Netezza, “a potential conflict of interest does exist” should her office be put in the position of being asked to act on any criminal implications of Netezza’s software misappropriation, hacking and subsequent sale of flawed code to the US government.
When asked about that conflict of interest, Ortiz’ spokesperson Donini-Melanson replied:

Please know that the DOJ has a recusal policy that is followed by all U.S. Attorney’s Offices. A recused person wouldn’t engage in a substantive review of a matter.

In fact, according to Justice Department policy, such a case would be referred to main Justice for review.
“When United States Attorneys, or their offices, become aware of an issue that could require a recusal in a criminal or civil matter or case as a result of a personal interest or professional relationship with parties involved in the matter, they must contact General Counsel's Office (GCO), EOUSA [Executive Office for US Attorneys],” the policy states.
If such a referral did occur, it appears nothing came of it.
“We never heard from anybody at the US Attorney’s Office or the Department of Justice,” IISI’s Davis says.

The Buzzsaw

The big question remains, then: Why didn’t US Attorney Ortiz or the Justice Department pursue a prosecution of Netezza’s actions in the drone-code scandal, or at least initiate an investigation?
There are several possibilities, though none of them appear to serve the interest of justice, which Ortiz used as the bludgeon in justifying, via the media, her pursuit of the Swartz case.
“Stealing is stealing, whether you use a computer command or a crowbar, whether you take documents, data, or dollars,” Ortiz said in the wake of Swartz’ arrest.
It would seem that justification for a prosecution, or at least an investigation, would apply equally well to the Netezza case, which involved pirated computer code. But Swartz, a popular but powerless computer geek, could not put into play the political muscle of an IBM, WilmerHale or the CIA — as could Netezza.
Could it be that one or more of those entities exercised their connections and leverage within the US Attorney’s Office in Boston, or DOJ itself, to assure Netezza did not become the target of a criminal prosecution? Or was their mere presence on the scene enough to dissuade any DOJ initiative on that front?
The answers to those questions are simply not known at this time, and may well be fodder for the Congressional committee now investigating DOJ’s handling of the Swartz case.
A former CIA counter-intelligence expert who spoke with Narco News did say that if the intelligence agency deems it has a vested interest in an issue, it can and will “leverage its power” in that matter. “If the CIA has equity in something, then the CIA is involved,” the former CIA employee said.
Clearly, the CIA did have an equity interest in the drone code it acquired from Netezza, even if that software was flawed. In fact, an argument can be made that the CIA may have been motivated to “leverage” its power within DOJ, including the US Attorney’s Office in Boston, simply to control the PR damage a criminal investigation of the Netezza affair would create for an already highly controversial drone program.
And in the case of Netezza, the line of separation in “equity interests” is quite blurred with respect to the CIA, IBM and the law firm WillmerHale. IBM acquired Netezza and has a history of working with the intelligence community, including the CIA; WilmerHale provided legal representation to Netezza in both the IBM acquisition deal and the IISI litigation while former partners of the firm have served or are serving in key posts at CIA, DOJ and Treasury; and the CIA put Netezza’s hacked, flawed computer code into play in the field of mortal combat through the drone program.
Swartz, by contrast, had no such institutional power on his side and, in fact, might be painted as a threat, via his digital disobedience, to exclusive institutional control of computer code. In that sense, the free pass for Netezza and the prosecution of Swartz makes perfect sense. In the web world we now inhabit, the distinction between criminal piracy and patriotic capitalism has become a moving line controlled by star prosecutors interested in advancing their careers.
A former federal agent who butted heads with the CIA more than once during his career, describes the lay of the land this way:

In my opinion (based upon my experience and logical conclusions drawn from that experience) the CIA would never hesitate to assert its power and influence to reach one of its objectives. They truly believe that their interests rise above all others. There really is no neutral or independent evaluator of facts. Not even the courts. The CIA will hold ex parte [closed, independent] meetings with the courts as well as prosecutors. [Emphasis added.]
In the face of resistance, the CIA takes the position that, "You just don't understand the big picture and the various modalities involved. Because of very sensitive and highly classified matters that you would not be able to fully comprehend anyway, you should simply adopt our position. Certainly you know that the CIA always operates in the best interests of the United States of America."
I know, it sounds arrogant, condescending and mildly intimidating. It is and they mean it to sound that way. That logic is their trump card. The law, morality and even good sense are mere inconveniences to be overcome. It is a win at all costs mentality.

And in such a National Security version of “too-big-too-fail,” little guys like Swartz, who dare to expose the system’s warts, don’t stand a chance once strapped to the US Justice System’s buzzsaw.