Homeland Security Has Not Sent Us A Subpoena

from the just-an-update dept

Thu, May 19th 2016 9:45am — Mike Masnick

A couple weeks ago, we wrote about a phone call (and follow up emails) we received from Homeland Security indicating an interest in sending us a subpoena, asking for any identifying information we had on a commenter. That commenter had posted a (somewhat ridiculous) comment, in response to another story, about a guy who had nearly a quarter of a million dollars taken by him by Customs and Border Patrol (CBP) under civil asset forfeiture rules. The commenter, somewhat weirdly, suggested that the guy who had this money stolen might "know people" who could murder the agents who took the money. It was clearly not a threat. It was random idle speculation.

But, for whatever reason, the sister agency of CBP, called Homeland Security Investigations (HSI -- which was formerly Immigration and Customs Enforcement, or ICE), decided that it wanted to subpoena the information on the commenter. Through our lawyer, we noted that we had serious First Amendment concerns about the chilling effects this might have if even weird comments like that lead to federal law enforcement knocking on people's doors. We explained that we were happy to look over the details, but in the absence of more information suggesting a real and legitimate threat, we were inclined to resist complying with the subpoena to protect our users. We also noted that we were publishing the info on Techdirt at the time, given a similar situation with Reason's website came with an almost certainly unconstitutional gag order, and we wanted to explain what was happening prior to any similar order.

Some people have asked for an update on the situation and it's this: nothing has happened. We haven't received any subpoena at all. In fact, we've received no further communications at all from Homeland Security. It is possible that something is still coming, but we hope that the agents at HSI and anyone else involved with this have realized that this is not a worthwhile activity. We'll keep you updated, should anything change.

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Filed Under: cbp, civil asset forfeiture, comments, dhs, first amendment, homeland security, subpoena

30 Comments

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Anonymous Coward, 19 May 2016 @ 9:59am

> We'll keep you updated if we are permitted to, should anything change.

FTFY. Once you get a gag order, your options are
1) civil disobedience and thus contempt for disobeying
2) challenging the order in court (and telling us if and when the court rules in your favor)
3) truckling to the government and remaining silent.
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Anonymous Coward, 19 May 2016 @ 10:09am

So does Techdirt have their own warrant canary?
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Anonymous Coward, 19 May 2016 @ 10:11am

Re:
4) be required to write a post like this.
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Someantimalwareguy, 19 May 2016 @ 10:14am

Re: FTFY
What would be the point of a gag order now as all the pertinent information on the potential who, why and what have been posted for the members of this site and the general public to review,

A gag order would be nothing more than trying to close the barn door after the horse had not only gotten out but had run down the road to hang out at the neighbor's place lol...
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Anonymous Coward, 19 May 2016 @ 10:20am

I bet the cheeky little bureaucrats are just letting the paperwork sit around in the hope of finding something else on Techdirt that'll allow them to get a big fat gag order.
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Anonymous Coward, 19 May 2016 @ 10:24am

The government may already have the info they seek.

If they "flashy thingy'd" Mike, he would not remember... now would he?
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Anonymous Coward, 19 May 2016 @ 10:26am

Re:
I was coming down to the comments to ask the same thing. Techdirt, can you set up a canary for this? Being that, once you receive a gag order and you comply, there would be no way for you to tell us. A canary would allow you to comply and tell us in a (probably) legal way.
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Anonymous Coward, 19 May 2016 @ 10:30am

Did they ask to meet you in a dark alley with no lawyer present as well, though, like with Isis Agora Lovecruft?
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Uriel-238 (profile), 19 May 2016 @ 10:35am

Forcing anti-gag canaries would be crossing a special line.
I'm pretty sure the courts can't legally force Mike to lie. But they could extralegally force him to lie.

Essentially at gunpoint.
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Uriel-238 (profile), 19 May 2016 @ 10:36am

Re: Forcing anti-gag canaries would be crossing a special line.
Crap! I've recently been bad with my html tags. Sorry all.
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Uriel-238 (profile), 19 May 2016 @ 10:39am

Man, the MiB movies...
...are super extra creepy in light of the current era of FBI overreach and secrecy abuse.

We'd be watching for changes in Mike's writing style for symptoms of neurolization.
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Anonymous Coward, 19 May 2016 @ 10:52am

Re:
I doubt there is any consensus on Techdirt among "the government" or "little bureaucrats". Most likely this has been a few guys at the CBP being uncomfortable and getting the stone rolling on a case.
After getting a legal counterclaim and news about the legal situation, the case is seen as shaky from their lawyers and either they have dropped the case or are looking at 1. ways around a subpoena 2. Better ammunition for a case.
In all instances I doubt we will be getting much more information in this case.
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Anonymous Coward, 19 May 2016 @ 10:54am

Why not promise to keep us updated should nothing change so that if something does change and you don't keep us updated we can assume something happened.
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That Anonymous Coward (profile), 19 May 2016 @ 11:18am

They are to busy filling in at TSA check points to follow up.
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streetlight (profile), 19 May 2016 @ 12:06pm

Would this be the canary?
Right now Mike has clearly said Techdirt has not received a warrant. What if he said, "We can't say whether we've received a warrant" be the appropriate canary? Isn't language fun.
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amoshias (profile), 19 May 2016 @ 12:19pm

For canary purposes...
Can you amend this and say something like "We will update on XX/XX/XXXX if we haven't received a gag order by then?"
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Anonymous Coward, 19 May 2016 @ 12:32pm

Re:
You're thinking of the Men Who Stare at Goats again, aren't you? They don't need no stinkin' flashy-thingy!
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Anonymous Coward, 19 May 2016 @ 12:36pm

Re: For canary purposes...
In a once free society we now rely on canaries to ensure freedom of speech.
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John Fenderson (profile), 19 May 2016 @ 4:07pm

Re: Re: For canary purposes...
No, we don't. We rely on canaries to ensure that we are made aware when freedom of speech has been curtailed.
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Pixelation, 19 May 2016 @ 4:17pm

I think you're lying. We know you've been forced to drop trow and make up a story. Did they provide vaseline?
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Anonymous Coward, 19 May 2016 @ 5:29pm

No subpoena cause they just hacked into the site and got whatever info they wanted.
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Capt ICE Enforcer, 19 May 2016 @ 6:47pm

Huh
Say what. You mean my name should be Capt HSI Enforcer.... Well crap.
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Anonymous Coward, 19 May 2016 @ 7:09pm

I don"t see him commenting
so I guess its safe to assume he's already at a black site
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Mike Masnick (profile), 19 May 2016 @ 11:45pm

Re:
I think you're lying. We know you've been forced to drop trow and make up a story. Did they provide vaseline?

FWIW, while the feds have been known to press ridiculous gag orders on people, forcing them to state false things goes beyond anything that they've been known to do. I highly doubt that's within the realm of things likely to happen.
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Coyne Tibbets (profile), 20 May 2016 @ 1:01am

Re: Re:
I think the DEA creating that fake Facebook account a while back counts.

True, they didn't actually force the person to set up the profile, but they sure forced the profile upon the person; forced words into the person's mouth.
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Hugo S Cunningham (profile), 20 May 2016 @ 6:33am

As a canary, this would work best if you promise an update on a *specific* date.
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Anonymous Coward, 20 May 2016 @ 7:53am

I just wanna give a big shout out to the Gestapo fucks at Homeland Security! o/
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Anonymous Coward, 20 May 2016 @ 8:13am

Re: Re:
Yes, but now that you've claimed nothing happened so far they can theoretically send you a gag order and then you might not be able to warn us of anything. Not warning us means nothing since you didn't tell us you were going to tell us if nothing happens within a given time frame. We would simply assume nothing happened after this post.
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Anonymous Coward, 20 May 2016 @ 10:28am

Re: Re:
FWIW, while the feds have been known to press ridiculous gag orders on people, forcing them to state false things goes beyond anything that they've been known to do.

But, might they seize a website and impersonate the operators? Nah, that would never happen.
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Anonymous Coward, 5 Jun 2016 @ 9:05am

Re: Re:
forcing them to state false things goes beyond anything that they've been known to do.

Yes, since we haven't actually seen the torture report.
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