Appeal Over Former RIAA Lobbyist Judge Allowing Prenda To Get Info On Over 1,000 John Does Moves Forward

from the doesn't-that-look-silly-now dept

You may recall Judge Beryl Howell, the former RIAA lobbyist who helped author the DMCA, and also went against a very large number of other judges dealing with copyright trolling lawsuits by ruling that it was perfectly fine to lump over 1,000 John Doe defendants into a single lawsuit and then get discovery on them for the purpose of shaking them down for payment. While so many other courts have ruled that such lumping together is an abuse of the legal system in misjoining unrelated parties, Howell not only stuck to her guns, but then proceeded to blame ISPs for copyright trolls, suggesting that if they just did more to crack down on infringing, trolls wouldn't be a problem.

What you may not remember is that the key case in which Howell did this happens to be a case involving... you guessed it... AF Holdings and its "law firm" Prenda Law. Oh, and the "copyright assignment" that AF Holdings is using for this case was one of those supposedly signed by... Alan Cooper. While Judge Howell may be well served to pay attention to Judge Otis Wright in California and his actual investigation into Prenda/AF Holdings/Alan Cooper, the case is out of her hands for now, as the various ISPs who have the info in this particular case have appealed Howell's ruling and the EFF, ACLU, Public Citizen and Public Knowledge have stepped in as well with additional arguments in an amicus brief.

Both briefs are well worth reading, though you might be surprised that the amicus brief is probably the more reserved of the two. The ISPs who took part include: Bright House, Cox, Verizon, AT&T and Comcast -- with most of them (Verizon and Comcast being the exceptions) not even providing service in the jurisdiction of the district court: Washington DC. Comcast joining in is interesting, given that they own NBC, but we'll leave that aside for now. To put it mildly, the ISPs think the appeals court should put an end to these kinds of cases, noting that a majority of other courts have refused to allow joinder on so many defendants, and have blocked the discovery process. It points out, of course, that these cases are almost never taken to court, but are usually just used to reveal names and then offer settlement demands. Specifically, they feel that Howell made a pretty big legal mistake, in that a showing of "good cause" is required for discovery, and Howell ignored that.

The district court’s conclusion that rules governing personal jurisdiction and venue provide no impediment to pre-Rule 26 discovery of the ISPs is legal error. A showing of “good cause,” which is required for discovery ostensibly intended to identify defendants, requires an evaluation of whether the information sought from the ISPs would be used to name and serve defendants in the forum. See, e.g., Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352-53 & n.17 (1978) (where “the purpose of a discovery request is to gather information for use in proceedings other than the pending suit, discovery properly is denied”). The Copyright Act and the District of Columbia’s long-arm statute limit the court’s reach to defendants who reside in the district. And the uncontroverted evidence before the district court showed that few, if any, of the targeted Internet subscribers reside in the District of Columbia—as publicly available geolocation software used by Plaintiff’s counsel in other cases confirms. The district court’s decision to defer any consideration of personal jurisdiction or venue until after the subscribers’ personal information had been disclosed to Plaintiff requires reversal.

The court’s decision to permit discovery of the ISPs before deciding whether the 1,000-plus “Does” are misjoined provides an additional basis for reversal. Plaintiff, by routinely declining to name and serve defendants after obtaining the subscribers’ personal information, virtually ensures that Rule 20’s requirements for joinder will go unaddressed if not evaluated at the outset. And as a growing majority of courts have concluded, deferring a ruling on joinder deprives the courts of filing fees and encourages a proliferation of improperly coercive lawsuits. Given the groundswell of published opinions that disagree with the lower court and have severed or dismissed non-resident “Does” or all Does except for “Doe No. 1,” deferring a ruling on joinder in a suit that seeks nationwide subscriber information also encourages forum shopping—as the record here shows persuasively.

The ISPs also, quite reasonably, point out that if mass joinder and discovery is allowed in this case, the trolls will descend on the DC Circuit courts in a mass forum shopping situation:

The record reflects that Plaintiff’s counsel’s cases have migrated across the country, with the venues selected, not by the locus of the parties or situs of harm, but based on counsel’s perceptions of which forum is most likely to authorize the greatest discovery, at the lowest cost, with the least judicial oversight.

The specter of intra-district, judge-specific shopping in Plaintiff’s counsel’s cases further underscores the problem with the lower court’s approach. The ISPs raised below Plaintiff’s counsel’s practice of filing complaints and dismissing them vel non based on the judicial assignment—only to re-file in another court. When presented with the same facts, Judge Wilkins quoted with approval Judge Huvelle’s finding: “Plaintiff’s actions a[re] akin to ‘judge shopping.’… This Court could not agree more.” ...

The ISPs respectfully submit that the district courts in this Circuit should not be the destination for 1,000-plus Doe cases that are brought primarily to compile mailing lists—not to adjudicate actual cases or controversies.

The ISPs also go through, in detail, the accusations against Team Prenda, and the claims of Alan Cooper. As it notes:

AF Holdings and its counsel owe a duty of candor to the Court, and a duty of fairness to appellants.... The serious issues concerning attorney misconduct and potentially forged documents were not identified for the court below; they necessarily affect the “good cause” analysis and provide an alternative basis for reversal to address the evidence now being considered in the pending disciplinary proceedings in the Central District of California.

The EFF/ACLU/PK/PC filing is more focused on the specific errors in Howell's ruling, concerning the "good faith" standard for discovery and the mass joinder of over 1,000 people. They also point out the jurisdiction problems of the defendants who are clearly outside the jurisdiction of a DC court -- and the fact that these cases rarely end up in actual lawsuits means that the question of proper venue will not be "cured" later. Finally, the brief argues that Howell ignored key First Amendment issues concerning revealing anonymous internet users, and the higher standard for them to be revealed. This argument wasn't made by the ISPs, so we'll focus on that one here. It points to the key Dendrite standard we've discussed many times before concerning the revealing of anonymous users. This does not mean that you cannot identify those accused of copyright infringement, but rather that you can't go on a random fishing expedition to get names, as many copyright trolls have done.

Specifically, in a series of cases beginning with Dendrite Int’l, Inc. v. Doe No. 3, 775 A.2d 756, 760-61, 342 N.J. Super. 134 (App. Div. 2001), courts have adopted a balancing standard to assess requests for early discovery to identify anonymous online speakers that protects the right to speak anonymously while at the same time ensuring that plaintiffs who have valid claims are able to pursue them. Without such a standard, abusive plaintiffs could too easily use extrajudicial means against defendants from whom they could not, in the end, obtain judicial redress. See Levy, Litigating Civil Subpoenas to Identify Anonymous Internet Speakers, 37 Litigation No. 3 (Spring 2011).

The use of BitTorrent to select and share movies is expressive and, therefore, protected by the First Amendment. Call of the Wild Movie, 770 F. Supp. 2d at 350 (“[F]ile-sharers are engaged in expressive activity, on some level, when they share files on BitTorrent, and their First Amendment rights must be considered before the Court allows the plaintiffs to override the putative defendants’ anonymity.”).

Although the expressive aspect of the conduct alleged here – the posting of copyrighted movies to BitTorrent – is somewhat minimal, that does not mean that discovery to identify the anonymous user without adequate initial evidence that individual Doe Defendants committed the alleged infringement. The weakness of AF Holdings’ assertions of personal jurisdiction and proper joinder means that First Amendment concerns weigh more strongly here in favor of quashing the subpoenas. Certainly it was not appropriate for the district court to ignore the question altogether.

It will be interesting not only to see how the appeals court deals with it... but also Prenda's argument, since they seem to be getting more and more wacky lately.

Filed Under: appeal, beryl howell, copyright trolls, discovery, joinder
Companies: aclu, af holdings, at&t, bright house, comcast, cox, eff, prenda, prenda law, public citizen, public knowledge, riaa, verizon

FBI Still Doesn't Think It Needs A Warrant To Read Your Email, Despite Court Ruling To The Contrary

from the of-course-not dept

The ACLU has continued its campaign to explore whether or not the government gets a warrant before scouring your email. Last month, they discovered that the IRS doesn't believe in getting a warrant -- leading to the IRS promising to change that policy. Now they've received some documents from the FBI in response to a FOIA request that again suggest that, despite the ruling in US v. Warshak, in which the 6th Circuit said that a warrant is needed to compel an ISP to turn over emails, the FBI believes it can access emails older than 180 days without a warrant, under ECPA. As we've discussed at length, ECPA (the Electronic Communications Privacy Act) is a very outdated piece of legislation which considers emails on a server over 180 days to be "abandoned" because no one considered a cloud computing future.

What the ACLU found in these documents is that the FBI hasn't updated its Domestic Investigations and Operations Guide (DIOG) in response to the Warshak ruling, and it still suggests that agents can easily access such emails without a warrant. Instead, it says:

In enacting the ECPA, Congress concluded that customers may not retain a “reasonable expectation of privacy” in information sent to network providers. . . [I]f the contents of an unopened message are kept beyond six months or stored on behalf of the customer after the e-mail has been received or opened, it should be treated the same as a business record in the hands of a third party, such as an accountant or attorney. In that case, the government may subpoena the records from the third party without running afoul of either the Fourth or Fifth Amendment.

That's a... charitable interpretation of reality. That's what Congress felt back then, but based on a very different network setup. However, as the courts noted in Warshak, the 4th Amendment is still important and still rules.

The ACLU also asked different US Attorney's offices for their guidelines, and found that policies differed greatly based on location. Northern Illinois, for example, seemed to recognize the 4th Amendment. But others, including in Texas, still seem to think that no warrant is required. As the ACLU notes, this hodgepodge of rules and the fact that the FBI hasn't changed its guidelines in response to Warshak just highlights the need for comprehensive ECPA reform.

If nothing else, these records show that federal policy around access to the contents of our electronic communications is in a state of chaos. The FBI, the Executive Office for U.S. Attorneys, and DOJ Criminal Division should clarify whether they believe warrants are required across the board when accessing people’s email. It has been clear since 1877 that the government needs a warrant to read letters sent via postal mail. The government should formally amend its policies to require law enforcement agents to obtain warrants when seeking the contents of all emails too.

More importantly, Congress also needs to reform ECPA to make clear that a warrant is required for access to all electronic communications. Reform legislation is making its way through the Senate now, and the documents released by the U.S. Attorney in Illinois illustrate that the law can be fixed without harming law enforcement goals. If you agree that your email and other electronic communications should be private, you can urge Congress to take action here.

Filed Under: 4th amendment, ecpa, ecpa reform, email, fbi, privacy, warshak
Companies: aclu

Former DHS Official Says Boston Bombing Proves ACLU & EFF Are Wrong About Surveillance And CISPA

from the call-up-OED:-'crass'-needs-to-be-redefined dept

There have been a lot of kneejerk reactions to the Boston Marathon bombing. Between certain politicians and pundits quickly turning the horrific event into makeshift planks to support their pet legislation/conspiracy theories and the New York Post cranking out reports so "exclusive" they weren't even true, the internet and airwaves have been filled with the sort of stupidity we've sadly come to expect when tragedy strikes.

Then something comes along that swaggers right up to you and punches you in the face with its breathtaking imbecility. This is Stewart Baker's "contribution" to the national discussion, filed over at the otherwise esteemed Volokh Conspiracy under the heading "Fool Me Once..."

When people say, "The stupid! It burns!" they're usually referring to garden variety stupidity or the occasional bit of advanced moronics that momentarily derails entire comment threads. This thing that Baker has cobbled together out of the stuff he likes best -- surveillance and more surveillance -- towers over other moments of burning stupid like a Wicker Man made entirely from straw. The stupid here doesn't simply burn. It immolates the rational person's mind, replacing coherent arguments with searing, nightmarish pain that reduces responses to stunted internet-native declarations like "wat."

Baker wants us to believe that the EFF and the ACLU are wrong... in both instances. What it actually shows is the EFF/ACLU's consistency on these issues. Unless Baker has heard otherwise, the EFF and ACLU are still against widespread surveillance (along with CISPA). This event, as terrible as it was, doesn't change that stance.

Only someone like Baker, a former DHS "company man" and freelance contributor to the underdeveloped "TSA porn" genre, would take the stance that the FBI's release of camera footage capturing the two bombing suspects' images justifies the massive amount of surveillance many in this country are subjected to in nearly every public space. (His take conveniently ignores the fact that the stills posted by the FBI appear to have been captured by cameras deployed by private businesses.)

Only someone who seems to detest the actions of privacy advocates would insinuate through a disingenuous headline ("What they said about street cameras before the bombing") that the EFF and ACLU would change their views on surveillance after an event like this. They won't. Only fair-weather friends of Constitutional rights and civil liberties change their stances after a tragedy like this. (See also: EVERYTHING THE GOVERNMENT HAS ENACTED SINCE SEPT. 11, 2001 THAT DEALS WITH NATIONAL "SAFETY" OR "SECURITY.")

And only someone who knows CISPA is a purposely flawed bill aimed at giving the government even more control and surveillance powers would have the gall to cheapen this tragedy by attempting to equate the two using a bullshit "conclusion" hastily MS Painted together and dropped unceremoniously into the blogosphere like a flaming bag of foul-smelling rhetoric on the doormat.

One question, though, Stewart, tied into Boston Marathon as you've done with yours: all of this surveillance, all these increased security measures, all this warrantless wiretapping, all these pat downs and scans at the airport, all of these drones flying all over the world, all these double-secret interpretations of super-secret laws, all of these redacted FOIA responses, all of this Cyber Pearl Harbor hand wringing, all of encroachment of the government into every aspect of American existence?

What did it prevent?

Filed Under: dhs, privacy, stewart baker, surveillance
Companies: aclu, eff

'No Photos From The Sky' Bill Trimmed Back, But Still Could Create Felons Out Of Kids Playing With Toy Drones

from the silly-law dept

A few weeks back, we wrote about an absolutely ridiculous bill that was proposed in New Hampshire that would have made it illegal to do any aerial photography, if the images showed any "residential dwelling." As we noted, this would make things like various mapping services illegal. Given the criticism, it appears that the bill's sponsor, Rep. Neal Kurt, decided to rewrite it, limiting it to just "drones," after admitting that the whole idea for the bill came after he saw a toy drone for sale in the mall. Kurt appears to have an overactive imagination when it comes to those toy drones, because he's worried about them firing lasers, if the text of the bill (HB 619-FN) is any indication:

II. “Drone” means an unmanned flying machine that is capable of:

(a) Capturing images or sounds of objects or people on the ground, in or about buildings or structures, or in the air;
(b) Intercepting communications on the ground, in or about buildings and structures, or in the air; or
(c) Firing a bullet, LASER-type ray, other projectile or any kind of lethal or non-lethal weapon.

Unfortunately, the bill is still way too broad. While mapping programs may be legal, any use of a drone to photograph a person or people becomes a felony. Also if you photograph the inside of a building. From the sky. Maybe that's via the lasers. The only way around this law is to get "prior, written consent" from the person photographed.

This is the kind of bill you get when you have a politician with an overactive imagination, who sees a toy drone and can only think "bad things will happen with this," and refuses to consider the many cool things that can be done with drones today. Chris Anderson built a whole company after being inspired to build drones with his kids. If this bill passes, and he's in New Hampshire with his kids, having fun, teaching them things about building things, physics, aerodynamics and more, they could all become felons if their drone takes a photo of someone without "prior, written consent." That's just silly.

Thankfully, it sounds like most of the people who went to a hearing on the bill spoke out against it -- including a Brigadier General from the US Army who pointed out that the federal government has "exclusive sovereignty" over airspace, and the State of New Hampshire does not.

First to testify was a Brigadier General from the US Army. He began by firmly reminding the committee that the airspace above New Hampshire was not owned by New Hampshire, but by the United States of America, and therefore controlled by the FAA. One of the committee members challenged him as to where that authority came from. The General was kind enough to quote chapter and verse. There were no more questions.

It's a bit disappointing to see that the ACLU is pledging "strong support" for the bill. Yes, I understand the concerns and worries about domestic drone use by governments for surveillance purposes -- and I support efforts by various groups to build transparency and clear rules around such usage -- but this bill goes way beyond that.

Filed Under: airspace, drones, new hampshire, photographs, privacy
Companies: aclu

Supreme Court Effectively Says There's No Way To Challenge Warrantless Wiretapping

from the but-of-course dept

This probably won't come as a surprise to anyone, but the Supreme Court has completely shot down the ACLU (and some activists and journalists') attempt to invalidate the part of the FISA Amendments Act that "legalized" warrantless wiretapping. As we guessed at the time of the oral hearings, it seemed like it was going to be difficult to convince a majority of the court that the plaintiffs had any standing to complain, since they couldn't show that they had been directly impacted. And, indeed the court ruled 5 to 4 that there was no standing here. So, basically, there is simply no way to challenge the constitutionality of warrantless wiretaps.

Doesn't that seem like a serious constitutional problem? The government can pass laws that it can spy on people in private, and there's no way to then challenge that law. Oh, and if you happen to discover (by accident!) that you've been spied upon the government can just claim sovereign immunity, and that's it. Case closed.

The full ruling is pretty depressing. The court basically says any harm is "speculative," and thus there can't be any standing at all.

We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors.

That's from the majority ruling, written by Justice Alito, and signed by Justices Roberts, Thomas, Scalia and Kennedy. Dissenting were Justices Breyer, Ginsburg, Sotomayor and Kagan. The majority also rejected the idea that merely having to take precautions not to be spied upon without warrants represents a real harm that gives standing:

If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear.

Perhaps a legitimate concern, but it still seems somewhat ridiculous that there is no actual way to test the constitutionality of a law that clearly has 4th Amendment consequences.

The dissent pointed out that it's crazy to suggest that the fact that this will be used on the plaintiffs was "speculative," and clearly worried about the implications of such a ruling and what it means for the government's ability to pass these kinds of laws without real judicial review.

The upshot is that (1) similarity of content, (2) strong motives, (3) prior behavior, and (4) capacity all point to a very strong likelihood that the Government will intercept at least some of the plaintiffs’ communications, including some that the 2008 amendment, §1881a, but not the pre-2008 Act, authorizes the Government to intercept. At the same time, nothing suggests the presence of some special factor here that might support a contrary conclusion. The Government does not deny that it has both the motive and the capacity to listen to communications of the kind described by plaintiffs. Nor does it describe any system for avoiding the interception of an electronic communication that happens to include a party who is an American lawyer, journalist, or human rights worker. One can, of course, always imagine some special circumstance that negates a virtual likelihood, no matter how strong. But the same is true about most, if not all, ordinary inferences about future events. Perhaps, despite pouring rain, the streets will remain dry (due to the presence of a special chemical). But ordinarily a party that seeks to defeat a strong natural inference must bear the burden of showing that some such special circumstance exists. And no one has suggested any such special circumstance here.

Consequently, we need only assume that the Government is doing its job (to find out about, and combat, terrorism) in order to conclude that there is a high probability that the Government will intercept at least some electronic communication to which at least some of the plaintiffs are parties. The majority is wrong when it describes the harm threatened plaintiffs as “speculative.”

They go on to point to a series of other cases where standing was granted based on "probable" injury. It also notes a bunch of scenarios that seem ridiculous, but which are logically implied by this ruling. And, indeed, the standard the Supreme Court ruling makes here is a very high bar that is going to deny standing in many cases, and often allow the government to act with impunity in cases where oversight is needed. This is very unfortunate. And, of course, it's unlikely that Congress will do its job and step in to fix this.

Filed Under: 4th amendment, harm, standing, supreme court, warrantless wiretapping
Companies: aclu, amnesty international

Do You Live In The Constitution-Free Zone Of The US?

from the 2/3rds-of-americans-do dept

Earlier this week, we wrote about the latest defense by Homeland Security of their laptop search policies that (they claim) give them broad coverage to search laptops within 100 miles of the border. The latest bit of news was that an internal review found that there was minimal benefits to one's civil liberties in not searching their laptops, so it was okay (think about that sentence for a bit).

The 100 mile "buffer zone" part of that story gets most of the attention, but it isn't a new thing. They've been claiming that for a while. It's just that this is yet another attempt by them to give themselves additional support for those kinds of searches. In our comments, someone pointed us to a useful (and horrifying) map that the ACLU put together highlighting just how much of our country is within 100 miles of border/coastline, creating the Constitution-Free Zone Map -- which happens to cover about 2/3 of all American citizens. Click through for the ACLU's interactive version. This isn't a new map, and, no one is claiming that these regions don't have any Constitutional protections, but it does effectively make the point of just how incredibly ridiculous it is for them to make these claims when it comes to laptop searches, which were already questionable enough at the border, let alone 100 miles into the country.

Filed Under: 4th amendment, constitution, privacy, searches
Companies: aclu

Justice Department 'Complies' With FOIA Request For GPS Tracking Memos; Hands ACLU 111 Fully Redacted Pages

from the the-answer-is-none;-none-more-black dept

Just recently, we learned that the EFF had been handed what appeared to be several pages of severe formatting errors and faulty Morse code in response to its FOIA request for the secret interpretation of the FISA spying law. There were also the "sobering findings" faux-released by the NSA, which left in only enough unredacted wording to open speculation on these "sobering findings," as well as to publicly lament the surely misguided public debate on the super-secret agency's actions. Now, the news comes to us that the FBI has handed the ACLU a stack of papers that would make any toner supplier very happy.

The ACLU filed a FOIA request last July in hopes of receiving some insight into the FBI's tracking of US citizens via GPS devices. Two months later, it filed a lawsuit against the FBI, forcing the issue. At long last, the FBI has responded... with 111 pages of black ink.

Two key memos outlining the Justice Department's views about when Americans can be surreptitiously tracked with GPS technology are being kept secret by the department despite a Freedom of Information Act lawsuit filed by the ACLU to force their release. The FBI’s general counsel discussed the existence of the two memos publicly last year, yet the Justice Department is refusing to release them without huge redactions. 

The word "see" is obviously some sort of joke because there's absolutely nothing to "see" here, unless you consider To, From and Subject fields to be the "smoking gun." Oh, and this one paragraph that leads into 56 straight pages of black ink.

In United States v. Jones, 132 S. Ct. 945 (2012), the Supreme Court affirmed the suppression of location data generated by a GPS tracking device surreptitiously affixed to a car without court authorization and monitored continuously over a 28-day period.

Yep, that's the power of the FOIA. All the black ink (or blank pages) you could possibly want, delivered months after they're requested. The redactions on these two documents obviously goes far beyond simply protecting sensitive information that might jeopardize ongoing investigations. This is nothing more than the DOJ covering up unconstitutional practices.

The Justice Department's unfortunate decision leaves Americans with no clear understanding of when we will be subjected to tracking — possibly for months at a time — or whether the government will first get a warrant. This is yet another example of secret surveillance policies — like the Justice Department's secret opinions about the Patriot Act's Section 215 — that simply should not exist in a democratic society.

The ACLU is asking the court to order the DOJ to release these memos in full. The Fourth Amendment's reasonable expectation of privacy is undermined by these secret memos, which limit knowledge of law enforcement tracking efforts solely to the executive branch.

The implications of these withheld documents go even further than discussing GPS tracking. FBI General Counsel Andrew Weissman's explanation of the second memo ("Guidance Regarding the Application of United States v. Jones to Additional Investigative Techniques") leaves the door open for tracking via other technology.

[The] second memoranda [sic] is going to be about guidance about what this means for other types of techniques, beyond GPS, because there's no reason to think that this is going to just end with GPS and some of that is going to be very much a judgment call.

It's already common knowledge that law enforcement agencies are using cell phone tracking. As the ACLU points out, wireless carriers already receive 1.5 million requests for data every year, most of which is used for location tracking. Additional technology, such as drones or license plate readers, make endless surveillance a logistic reality, and all without a warrant.

A fully-redacted document doesn't seem to indicate that the FBI is operating within the constraints of United States v. Jones. It signals the very opposite and provides us with another example of how government agencies, when faced with constitutional limitations, are more than happy to simply "interpret" their way around them -- and keep these interpretations out of public view, perhaps indefinitely. It's extremely hypocritical for the FBI and DOJ to sit in a position of law enforcement when they clearly believe abiding by the law is optional.
 

 

 

 

 

 

 

Filed Under: doj, foia, gps, redacted, spying
Companies: aclu, eff

Supreme Court Puzzles: How There Can Be Oversight Concerning Warrantless Wiretapping If No One Can Sue?

from the that-would-appear-to-be-a-problem dept

One of the more ridiculous things about the government's ongoing campaign of secret surveillance on Americans is how hard it's fought back against anyone who has sought to have the policy tested in the courts. If the feds were confident that what they were doing was legal, they wouldn't be so aggressive in blocking each and every attempt. When the ACLU and others filed suit over the warrantless wiretapping under the FISA Amendments Bill (the Clapper v. Amnesty International case) the lower court rulings were especially troubling, because it was ruled that there was no standing to sue, because there was no direct proof of such spying. So that leaves the public in quite a bind. They can't complain about the program unless they can prove they've been spied upon, but they can't do that unless they know more about the program, which is secret. Someone page Joseph Heller.

The part of the case now at the Supreme Court is only over whether or not there is significant standing for Amnesty International and the ACLU to move the case forward. The government insists, quite vehemently, that as long as no one knows it's spying on them, they can't sue. The SCOTUS blog has a nice recap, saying that the Justices were "sensitive" to the lawyers who want to sue, but as we've warned before, what Justices say at oral hearings is not always a good barometer for how they'll eventually rule. Still, we might as well go through the transcript for some key points. The report kicked off with Solicitor General (and former entertainment industry litigator) Donald Verrilli being quizzed on the fact that, under his interpretation, no one could ever bring a lawsuit until after they were charged with a crime and knew about the details. That's neither fair, nor reasonable. Verrilli tries to cook up some other scenarios, but they all appear quite unlikely.

And, thankfully, Justice Ginsburg calls him on this point:

General Verrilli, can you be specific on who that person would be? Because, as I understand it, it's unlikely that, for example, the lawyers in this case would be charged with any criminal offense. It's more probable that their clients would be; but, according to the government, their clients have no Fourth Amendment rights because they are people who are noncitizens who acted abroad.

So it's hard for me to envision. I see the theoretical possibility, but I don't see a real person who would be subject to a Federal charge who could raise an objection.

In other words: "don't we have a problem when any effective oversight is written out of the law?"

Later, Ginsburg also wonders if the government will just claim state secrets to get out of having to provide info anyway. In the end, the debate comes down to if a lawyer just thinking that the government is spying on his phone calls, such that he's already modifying his behavior, is a form of "harm," and whether or not we trust the special FISA court (set up to monitor this stuff) to do a good job in weeding out abuses. Concerning "thinking" that the government is spying on a call, Verrilli tried to claim that there's no real harm there because a lawyer has an ethical obligation to take greater precautions. Seriously:

JUSTICE KAGAN: Well, is it really such speculation, General? I mean, just imagine that -- yourself in this lawyer's position, and the lawyer says, I'm representing a person associated with a terrorist organization, I'm representing KLM in the case of one of these lawyers, and I'm going to be talking to that person's family members and associates and trying to find out everything that I can.

Now, as a lawyer, would you take precautions, or would you pick up the phone and start writing e-mails to all those people?

GENERAL VERRILLI: If I took precautions, it would be because of a belief that I had to comply with an ethics rule, and the ethics rule would be the cause of me taking those precautions. It doesn't change the standard.

JUSTICE KAGAN: I don't even think it has to do with an ethics rule. If you're a good lawyer -forget the ethics rule and how the ethics rules apply. Are you really going to tell me that you, as a lawyer, would just pick up the phone in the face of this statute and talk to these terrorists' associates?

On the side of the lawyers seeking standing, their lawyer, Jameel Jaffer, tried to build on the hypothetical that the Justices raised, in which there's a "substantial risk" of having communications intercepted, leading them to change their behavior. Here Chief Justice Roberts kept pushing back that the standard is "certainly impending" rather than "substantial risk."

CHIEF JUSTICE ROBERTS: You have two arguments; one is likelihood of future injury and the other is present obligations or cause. I want to focus on the former. Our standard is certainly impending, and you articulated it by saying, substantial risk. There is obviously a vast difference between those two.

MR. JAFFER: Well, I don't think, Your Honor, that the Court has settled on certainly impending. The cases that the -- the Government cites are cases like -- I think that the one that the Government cites, relies on most heavily is Summers. But in Summers, the distinction between likelihood and certainly impending was not one that the Court relied on in -- in that decision. The Court said that plaintiffs couldn't meet even the lower standard. So I think that the discussion of certainly impending -

JUSTICE KENNEDY: But both in Summers and Monsanto the Government tells us: We knew that the governmental act was occurring, and then once we knew that, the question was substantial risk.

MR. JAFFER: Justice Kennedy, the -- the -the cases that we rely on, Monsanto, Laidlaw, Meese v. Keene, these are cases in which the Court didn't look to the certainly impending standard at all. The question that the Court asked in those cases was: Is there a substantial risk? Is there a substantial risk that effectively compels the plaintiffs to act in the way they are -- they are acting?

Meanwhile, Justice Scalia seemed to think that the FISA Court could really be trusted to automatically ferret out 4th Amendment violations without, say, lawyers being spied upon being able to raise the issue themselves. Scalia, it would appear, is tremendously trusting in the powers of the FISA Court to actually stop excessive surveillance. While Jaffer points out that the current fight to renew the FISA Amendments Act suggests otherwise, since it removed the basic tests that the FISA Court had to look at the specifics (about the particular person or location being monitored) and gives the government much more leeway to spy broadly:

JUSTICE SCALIA: Does that assessment take into account the fact that a court is going to pass upon the Government's ability to intercept these communications?

MR. JAFFER: It does, Justice Scalia. I mean you -- you are right that there is a court that in some sense stands between plaintiffs and the future injury that they -- that they fear.

JUSTICE SCALIA: With the obligation to apply the Fourth Amendment.

MR. JAFFER: I don't think it's that simple. The -- the -- the court, the FISA court, is tasked with assessing the reasonableness of targeting and minimization procedures. But the statute itself forecloses the court from imposing the kinds of limits that plaintiffs think the Fourth Amendment requires. So for example, the statute itself in section (g)(4) says that the Government is not required to identify the facilities to be monitored. And the statute itself in defining targeting procedures defines them to be procedures intended to ensure that the targets are outside the United States.

JUSTICE SCALIA: But if as you say those procedures violate the Fourth Amendment, it doesn't matter what the statute says.

MR. JAFFER: Well, the Court would have to -

JUSTICE SCALIA: If those statutory provisions would produce a violation of the Fourth Amendment, they are null and void, right?

MR. JAFFER: Well, I think that's right.

The -- the court -

JUSTICE SCALIA: Okay. So the FISA Court would presumably know that.

MR. JAFFER: Well, I think if that had happened over the last 4 years, the Government wouldn't be seeking reauthorization of the statute now.

Later, he pushes back again, noting that the FISA Court doesn't get enough details to make the determination:

JUSTICE SCALIA: I don't see how the rest of your challenge or your challenge to the remainder of this statute can be characterized as a facial challenge, because it necessarily assumes that the FISA court will mistakenly say that there has been no Fourth Amendment violation, doesn't it?

MR. JAFFER: I don't think that's so, Justice Scalia. Our concern is not -- not that -- that the FISA court will make mistakes, although it well might. The concern -- the main concern is that the reasonableness inquiry that the FISA court engages in is a narrowly cabined one. They court can't say this is unreasonable because you haven't identified the facilities. They can't say this is unreasonable because you haven't identified a specific target.

On the whole, it does seem like it may be difficult to convince a majority of the Justices that there is standing here. This is unfortunate, because clearly some of the Justices are worried about the implications of the federal government being able to pass a law for secret spying that no one can ever challenge since they'll never know about it. But, if they can't prove that the spying actually took place, then it's tough for them to be able to show the actual harm. Hopefully the Court recognizes that the uncertainty surrounding the likely monitoring of communications is legitimate harm... but it seems like a longshot.

Filed Under: fisa, fisa amendments act, standing, supreme court, surveillance
Companies: aclu, amnesty international

New Data Dump Shows Feds Massively Increased Spying On Who You're Talking To

from the well,-of-course dept

While the feds absolutely hate to reveal this kind of info, due to successful legal action by the ACLU, the Justice Department was forced to reveal information on how often they monitor electronic communications of Americans without a warrant -- using what's known as "pen register" and "trap and trace." This kind of surveillance isn't over the actual communications (that's left up to the NSA, apparently), but rather just the info on who contacted whom. For various reasons, such information is considered obtainable without needing a warrant. Not surprisingly, the data shows a rather massive increase in such surveillance by the Justice Department. The numbers are quite incredible:

In fact, more people were subjected to pen register and trap and trace surveillance in the past two years than in the entire previous decade.

And yet, whenever anyone suggests that maybe, just maybe, there should be a little bit of oversight on these kinds of things to prevent abuse, law enforcement freaks out. Perhaps that's really because they know they're widely abusing the ability to spy on communications, and they don't want to have to admit it. The fact that it took a lawsuit just to get this information (which is required by law) to be released really says something about the state of surveillance by the federal government. And what it says is not good at all.

Filed Under: doj, pen register, spying, surveillance, trap and trace
Companies: aclu

The USPTO's Reality Distortion Field: Web Filter Blocks Critics Like EFF, Welcomes Maximalist Lobbyists

from the but-techdirt's-available dept

Updated: At 5pm ET, the USPTO called Jamie to say that a contractor had set this up, and after reviewing their policies, they had stopped blocking such sites...

Well this is bizarre. Jamie Love from KEI was over at the US Patent and Trademark Office (USPTO) for a meeting about "global negotiations on intellectual property and access to medicine." The meeting itself was held in a room that it uses for the USPTO's Global Intellectual Property Academy (GIPA), and there is free WiFi for people to use. Love tried to log onto his own website... and found that it was being blocked as a "political/activist group."

Access Denied (content_filter_denied)

Your request was denied because this URL contains content that is categorized as: "Political/Activist Groups" which is blocked by USPTO policy. If you believe the categorization is inaccurate, please contact the USPTO Service Desk and request a manual review of the URL.

For assistance, contact USPTO OCIO IT Service Desk. (io-proxy4)

Love then checked a bunch of other sites... and noticed a rather distressing pattern. For public interest groups who advocate that the existing copyright/patent system is broken, the websites were all blocked. ACLU, EFF, Public Knowledge, Public Citizen, CDT... all blocked. However, if you're a lobbyist for maximalism? No problem! MPAA, RIAA, IIPA, IPI, PHRMA, BSA... come on through. They do allow Creative Commons. Thankfully (for us, at least), they don't seem to block blogs that talk about this stuff. Techdirt is allowed, as are things like BoingBoing, Groklaw and Larry Lessig and Michael Geist's blogs. Though, oddly, a bunch of political sites (DailyKos, TPM, RedState, Rush Limgaugh's site) are blocked.

It may be an "over active" filter -- but it does seem particularly disturbing that all those groups who fight for the public's rights on the very issues the USPTO is dealing with on a regular basis have their sites completely blocked.

Filed Under: advocacy, uspto, web filter
Companies: aclu, bsa, cdt, eff, iipa, ipi, kei, mpaa, phrma, public citizen, public knowledge, riaa