The Government argued that the laptop, hard drive, and USB drive had evidentiary value regardless of what was recovered on them. The Government argued that the items were akin to burglar’s tools in a breaking and entering case: the computer and related data storage materials were an instrumentality used in the crime. The Government argued that, under such circumstances, authorities could retain the property as evidence regardless of what data was found on it, and there was therefore no urgency to conducting the searches. Moreover, the Government argued, Swartz did not ask for the return of the property during the period of delay. The Government also argued that his possessory rights in the equipment were attenuated due to the fact that he left them unattended for lengthy periods of time while accomplishing a download of the JSTOR material, creating a situation where MIT officials might seize his computer.
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