Trump's Picks For AG & CIA Happy To Undermine Civil Liberties, Increase Surveillance

from the this-is-a-bad-start dept

This is (unfortunately) not a huge surprise, but it appears that a Trump administration is going to be much worse for civil liberties and surveillance. Earlier today, Donald Trump named his choices to head the CIA -- Rep. Mike Pompeo -- and to be the next Attorney General -- Senator Jeff Sessions -- and both have terrible records on surveillance, civil liberties and whistleblowing. They also are problematic in other areas, but in the areas where we cover, it's not looking good.

Let's start with Pompeo. In an op-ed piece for the Wall Street Journal back in January of this year, Pompeo called for expanding surveillance powers rather than limiting them. He criticized the USA Freedom Act and any other attempt to even moderately cut back on surveillance and said we had to go the other direction, claiming "What’s needed is a fundamental upgrade to America’s surveillance capabilities."

Congress should pass a law re-establishing collection of all metadata, and combining it with publicly available financial and lifestyle information into a comprehensive, searchable database. Legal and bureaucratic impediments to surveillance should be removed. That includes Presidential Policy Directive-28, which bestows privacy rights on foreigners and imposes burdensome requirements to justify data collection.

While (at least) that same editorial did say that a backdoor on encrypted products "would do little good," he's no fan of encryption. He just thinks that if you use it, it should be considered a "red flag" that you're up to no good:

There has been much debate about whether providers of communications hardware and software in the U.S. should be obliged to give the government backdoor access. Such a mandate would do little good, since terrorists would simply switch to foreign or home-built encryption. New technologies can cloak messages in background noise, rendering them difficult to detect.

Forcing terrorists into encrypted channels, however, impedes their operational effectiveness by constraining the amount of data they can send and complicating transmission protocols, a phenomenon known in military parlance as virtual attrition. Moreover, the use of strong encryption in personal communications may itself be a red flag.

In another opinion piece for the National Review, he attacks reformers and those who support Ed Snowden while announcing his own bill to give the NSA greater surveillance powers:

Those who today suggest that the USA FREEDOM Act, which gutted the National Security Agency’s (NSA) metadata program, enables the intelligence community to better prevent and investigate threats against the U.S. are lying. I use that word intentionally, because these candidates know better. Less intelligence capacity equals less safety. To share Edward Snowden’s vision of America as the problem is to come down on the side of President Obama’s diminishing willingness to collect intelligence on jihadis. No Republican candidate who does that is worthy of our vote.

I have just introduced the Liberty through Strength Act II in the House of Representatives to restore the NSA’s tools. We cannot expect our intelligence professionals to prevent terrorist attacks while handcuffing them at the same time.

Just to be extra clear: Pompeo doesn't just dislike Ed Snowden, he has declared him a traitor who should be "given a death sentence."

It's absolutely the case that we have not been able to secure all the American information that we needed to, and that we've had the traitor Edward Snowden steal that information. He should be brought back from Russia and given due process, and I think the proper outcome would be that he would be given a death sentence for having put friends of mine, friends of yours, who served in the military today, at enormous risk, because of the information he stole and then released to foreign powers.

Pompeo has also defended the CIA's torture program against critics:

“These men and women are not torturers, they are patriots,” and, “The programs being used were within the law, within the constitution.”

There's also the fact that Pompeo has basically no experience in the intelligence community. He was an Army officer and a businessman, only entering Congress a few years ago. In that link, Motherboard quotes someone from the intelligence community questioning how Pompeo is qualified to run the CIA:

“None of us believe that a couple of years in the Army followed by sitting on a committee in Congress qualifies anyone for any position in the CIA, much less as the Director,” a former military officer who also worked in the intelligence community told Motherboard on condition of anonymity. “We believe that the ongoing nepotism used to select unqualified and in some cases, dangerous people for leadership in these key positions may well lead to a catastrophic failure for the United States.”

So, yes, here's someone with little actual experience in intelligence, but who is absolutely sure the answer is greater surveillance of Americans, and who supports programs that have been declared to be torture. And they're putting him in charge of the CIA.

On to Sessions. He's also a huge supporter of increased surveillance, and not a fan of civil liberties. Going back a decade ago, Sessions very publicly supported President George W. Bush's surveillance programs that included warrantless wiretapping of Americans.

“This is a reasonable assertion of executive power, and it’s more than an academic discussion,” Sessions said. “There are 3,000 Americans who have no civil rights today because they were killed as a result of communications from foreign terrorist organizations who called in to sleeper cells who then carried out the catastrophic 9/11 attacks. President Bush’s surveillance program authorizes only an intercept of an international call or email in which one of the parties is connected to al Qaeda. I think the terrorist surveillance program is a reasonable response.”

For what it's worth, Sessions is wrong here. The surveillance program -- as we later learned -- enabled much, much, much more than that, and included mass surveillance on the communications data of millions of Americans. And the "connection to Al Qaeda" was expanded to include many hops away, and much more than Al Qaeda. But as far as I can tell, Sessions never admitted that his statement was wrong or changed his views on Presidential surveillance powers. Just this year, Sessions spoke out against encryption on mobile phones in discussing the legal fights between Apple and the FBI:

Senator Jeff Sessions of Alabama questioned Cook’s position. "Coming from a law enforcement background, I believe this is a more serious issue than Tim Cook understands," Sessions said. He said accessing phones is critical to law enforcement.

"In a criminal case, or could be a life and death terrorist case, accessing a phone means the case is over. Time and time again, that kind of information results in an immediate guilty plea, case over," Sessions said. He added that the ability for government to access a phone should not be abused.

He's also spoken out vehemently against NSA reform that limits surveillance, complaining about the very modest changes in the USA Freedom Act.

In 2006, the National Security Agency transitioned the bulk telephone-metadata acquisition program authorized under the president’s Terrorist Surveillance Program to the business-records court-order authority of Section 215. Since shortly after 9/11, this program has been helping to keep Americans safe by acquiring non-content call records, i.e., telephone numbers and the date, time, and duration of a call. This program has yielded invaluable intelligence that has helped prevent attacks and uncovered terrorist plots. Nevertheless, the Obama administration has built up unnecessary barriers that sacrifice the fragile operational efficiency of the program without actually accomplishing anything in terms of data security.

He claimed this despite the fact that this article was published years after it had been revealed that the government had never relied on the Section 215 data to save lives, and even where it was used, other means were used to stop any kind of attack.

On top of that, just recently, Sessions tried to massively expand the surveillance powers of the Justice Department, in an amendment he tried to attach to ECPA (Electronic Communications Privacy Act) Reform. We've been calling for ECPA Reform for many, many years, but to stop warrantless surveillance and data collection. But Sessions' plan was to make it even easier for law enforcement to get data, so long as they "declared it was an emergency."

A provider of electronic communication service or remote computing service shall disclose to a governmental entity a wire or electronic communication (including the contents of the communication) and a record or other information pertaining to a subscriber or customer if a representative of the governmental entity reasonably certifies under penalty of perjury that an emergency involving the danger of death or serious physical injury requires disclosure without delay.

And, the thing is, many companies will help out law enforcement voluntarily in such situations. But Sessions was trying to make it mandatory, which would be massively abused.

And that doesn't even touch on Session's horrific history concerning civil rights, which generally doesn't bode well for his views on related civil liberties.

I know that we'd heard from some Trump supporters telling us that they believed he wouldn't be as bad on surveillance as Obama or Bush. But, so far, it certainly looks like he's worse, given who he is planning to appoint.

Filed Under: 4th amendment, attorney general, cia, civil liberties, donald trump, ed snowden, jeff sessions, mass surveillance, mike pompeo, nsa, surveillance

Rhode Island Attorney General Pushes Yet Another Terrible Cybercrime Bill

from the narrowly-written-legislation-is-a-criminal's-best-friend-(apparently) dept

In what appears to be an annual tradition in Rhode Island politics, legislators (and the state Attorney General) are pinging the First Amendment to see if any new loopholes have developed since the end of the last legislative session. And, of course, it's being done to save the cyberchildren from internet nastiness. (via Overlawyered)

Social media posts, sexually explicit or otherwise, that cause someone's online embarrassment or insult, would become crimes under a set of bills being advanced by Rhode Island Attorney General Peter F. Kilmartin.

Supposedly, the target is cyber-harassment. But the bill's wording is far, far, far too broad.

Unlike current state "cyber-stalking" laws, which require police to prove a pattern of harassing behavior, someone could be prosecuted under the new Kilmartin bill for a single post if at least two others pile on with "separate non-continuous acts of unconsented contact" with the victim. The original post would have to be made with the intent to cause emotional distress and be expected to cause distress in a "reasonable person."

Note the "unconsented contact." Rather than limiting itself to the non-consensual posts of an explicit nature (itself problematic without extensive exceptions), the bill would apparently require messengers to ask permission before delivering any message that might be construed as offensive.

A person shall not post a message to any other person, through the use of any medium of communication, including the Internet or a computer, computer program, computer system, or computer network, or other electronic medium of communication, without the intended recipient's consent, if all of the following apply:

(1) The person knows or has reason to know that posting the message could cause two (2) or more separate non-continuous acts of unconsented contact with the recipient;

(2) Posting the message is intended to cause conduct that would make the intended recipient feel terrorized, frightened, intimidated, threatened, harassed, or molested;

(3) Conduct arising from posting the message would cause a reasonable person to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested; and

(4) Conduct arising from posting the message causes the intended recipient to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

So, having to obtain permission to send messages someone might take the wrong way is Kilmartin's hamfisted way of dealing with online harassment. This changes social media interactions from "I don't want you to get mad, but... " to "I don't want you to press charges, but…" with $1000 and up to a year in jail awaiting the person who fails to receive the go-ahead to send something distressing.

The 'two or more separate non-continuous acts" language is there to close the loophole in the anti-cyberstalking law -- something that has apparently bothered the AG ever since that badly-written law was abused by law enforcement.

There also seems to be some extraterritorial action built into the legislative proposal.

A person may be prosecuted in this state for violating or attempting to violate this section only if one of the following applies:

(1) The person posts the message while in this state;
(2) Conduct arising from posting the message occurs in this state;
(3) The intended recipient is present in this state at the time the offense or any element of the offense occurs; or
(4) The person posting the message knows that the intended recipient resides in this state.

Note that only one of these needs to apply for charge to be brought, so out-of-state residents who may not even know of the law's existence can be prosecuted for violating it.

And then there's the whole "unconsented contact" wording, which makes simple existence practically impossible if one were so inclined to take the legislation at its word(s).

Unconsented contact includes any of the following:

(i) Following or appearing within sight of the victim;
(ii) Approaching or confronting the intended recipient in a public place or on private property;
(iii) Appearing at the intended recipient’s workplace or residence;
(iv) Entering onto or remaining on property owned, leased, or occupied by the intended recipient;
(v) Contacting the intended recipient by telephone;
(vi) Sending mail, or electronic communications to the intended recipient through the use of any medium, including the Internet, a computer, computer program, computer system, or computer network; or
(vii) Placing an object on, or delivering or having delivered an object on, property owned, leased, or occupied by the intended recipient

It's a restraining order, but without the in-writing, signed-by-the-court, legally-binding paperwork! All anyone must do is "express" their desire to be left alone and everything else following that violates the law. This remains true even if the person takes steps to avoid contact ("appearing within sight") or triggers the Grover Cleveland Clause ("two non-consecutive occasions").

The ACLU of Rhode Island is opposing the bill, just like it has during past attempts to push this through. One would hope cooler (and more Constitutional) heads will prevail during the legislative process, but cooler heads are often in short supply when issues like "cybercrime" are discussed.

Filed Under: attorney general, cybercrime, emotional distress, first amendment, harassment, peter kilmartin, rhode island

Another NSL Challenge Is Made Public; Court Decides Government Can Keep Gag Order In Place Indefinitely

from the new-law-means-challengers-can-be-told-'no'-more-frequently dept

Another National Security Letter issued by the government has made its way into the public domain. While it's still likely years away from the full exposure finally granted to Nicholas Merrill of Calyx Internet Access (after 11 years!), this one may not stay covered up for the next decade.

The Maryland District Court finds the gag order issued along with the NSL constitutional, but has problems with the lack of an expiration date. But it still defers to the government's best judgment as to when it will be "safe" to disclose the contents of the letter. The difference here is that the court has the USA Freedom Act to contend with, which slightly alters the acceptable amount of secrecy.

Respondent notified the FBI that it intended to file a petition to set aside the nondisclosure provision of the NSL. Respondent opined that the nondisclosure provision may no longer be needed. Respondent also invited the Government to initiate a judicial review proceeding in lieu of Respondent's filing a petition. The Government responded by initiating the instant proceeding.

Just prior to Respondent's filing of its opposition to the petition, the laws governing NSLs were amended via the USA FREEDOM Act of 2015, Pub. L. 114-23, 129 Stat. 268.1 Accordingly, the Court wiIl conduct its judicial review under the most recent version of the relevant statutes, specifically, sections 2709 and 3511 of Title 18, United States Code.

The unnamed respondent (redacted and under seal) claims the government hasn't met the burden of justifying the ongoing gag order -- an argument it has been forced to make without any knowledge of what the government has submitted (or withheld) to justify the continued secrecy. The court, however, has viewed material supporting the government's contentions and, no surprise, found in favor of national security.

There is reason to believe that disclosure ofthe information subject to the nondisclosure requirement during the applicable time period may result in a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person.

The problem is, the "applicable time period" is completely open-ended. Even with the added stipulations of the USA Freedom Act, the government can keep this gag order in place for the next several years, provided the government periodically asserts that "danger" of the national security type is still present.

At present, the nondisclosure requirement in this case has no ending date, and the Court's review of its continued viability falls within an interim period between the effective date of the USA FREEDOM Act of 2015, which directs the Attorney General to "adopt procedures with respect to nondisclosure requirements ... to require ... review at appropriate intervals ... and termination ... if the facts no longer support nondisclosure," and the anticipated but unknown date when the Attorney General will have actually promulgated such procedures. In the absence of those governing procedures, the Court will require the Government to review every 180 days the rationale for the nondisclosure requirement's continuation. Once the Attorney General's procedures are in place, then the nondisclosure requirement will be subject to review thereunder, and this Court's mandate of review every 180 days will no longer be in force.

So, the gag order will only be looked at every six months until the Attorney General takes over, at which point it will be reviewed at "appropriate intervals." Putting this into the hands of the Attorney General seems less likely to result in a ruling in favor of disclosure than leaving it up to a more impartial court. Even with this "fix" in place, there's very little reason to expect the gag order to be lifted any time soon.

As for the unnamed respondent's First Amendment arguments, the court says these alleged violations are outweighed by the government's need for secrecy in national security investigations. Furthermore, it's suggested the respondent should be happy the government has grudgingly allowed it to report nonspecific information on requests for subscriber data.

The methods or reporting established in §1874 -- with reporting allowed in "bands" of numbers and with restriction on the period of time for which a report may be issued -- are a reasonable accommodation of an ECSP's desire for transparency and the Government's compelling interest in national security.

There's no telling who the service provider is that's challenging the gag order. One of the few details that can be sussed out from the documents no longer under seal is that the NSL likely arrived in the first three months of this year. At this point, the service provider won't be able to have the decision reviewed until summer of next year and after that, it will be in the Attorney General's hands. The encouraging sign is that the Attorney General's office has already agreed to unseal certain documents in this case, rather than keep the entire discussion hidden from the general public. Granted, the documents do little more than confirm the government's belief that the gag order should remain in place -- without providing anything more than vague national security concerns to back up that assertion.

Filed Under: attorney general, doj, fbi, first amendment, free speech, gag order, national security, national security letter, nsl

Corruption Watch: State Attorneys General Line Up Behind Jim Hood, Support Power To Attack Enemies Of Big Corporate Donors

from the gee,-I-wonder-why... dept

A large group of state Attorney Generals has now stepped into the legal fight between Mississippi Attorney General Jim Hood and Google. As we've explained a bunch, Hood went after Google with an investigation and detailed subpoena that was funded and written by the MPAA itself. In response to this, a federal court has already called out Hood's actions, noting that there was "significant evidence of bad faith" on the part of Hood as he attempted to unconstitutionally hold Google responsible for anything bad that its search engine found on the internet.

We've written plenty about issues with state Attorneys General. The state Attorney General position is frequently seen as the stepping stone to becoming state governor or US Senator. State AGs have a reputation as being grandstanding tools, focusing on getting big headlines over actually enforcing the law. In fact, they often will focus on grandstanding even when there is no legal basis whatsoever. The most damning account of this is one we wrote about five years ago, in which a group of AGs teamed up to shake down Chris Tolles, the CEO of online forum site Topix. The story is incredible and well worth reading. You'll see how a bunch of state AGs kept putting out press releases, blaming Topix for things with no legal basis. Tolles would go talk to them, explain how the company works in order to build understanding, and the state AGs would then, immediately, turn around and take what he told them, totally misrepresent it, and issue another press release twisting what he'd said into implying that the company was up to no good.

So, after opening the kimono and giving these guys a whole lot of info on how we ran things, how big we were and that we dedicated 20% of our staff on these issues, what was the response. (You could probably see this one coming.)

That's right. Another press release. This time from 23 states' Attorney's General.

This pile-on took much of what we had told them, and turned it against us. We had mentioned that we required three separate people to flag something before we would take action (mainly to prevent individuals from easily spiking things that they didn't like). That was called out as a particular sin to be cleansed from our site. They also asked us to drop the priority review program in its entirety, drop the time it takes us to review posts from 7 days to 3 and "immediately revamp our AI technology to block more violative posts" amongst other things.

In short, to state AGs, no opportunity to issue a press release slamming a tech company is too good to miss. We've seen it done against Twitter, Facebook, Craigslist, small social networking sites, MySpace, ISPs, and video game companies. Frequently there is no actual legal basis for this at all. They just issue completely misleading and out-of-context press releases that slam companies, frequently because people who are up to no good use those tools and the companies haven't magically weeded out bad actors. In fact, the state AGs have become so drunk with the power of all this that they've actually pushed very strongly to change federal law to give them more power to blame websites for the actions of their users, by exempting their investigations from Section 230 of the CDA (the law that says you can't blame sites for actions of their users).

A few years ago, seeing all these grandstanding plays by state AGs, some enterprising companies began to realize that this was a great way to attack competitors or companies they didn't like. And thus, as the NY Times covered last fall, a huge lobbying effort was set up by companies to woo state AGs with lobbying dollars, and push them to attack companies they didn't like. Microsoft, for example, used this to shake down foreign companies over copyright claims, even though copyright is a federal issue, rather than a state one. The NY Times article is rather eye-opening. It details how much lobbying efforts are now targeting state AGs, and how ridiculous it looks. It often involves ex-state AGs, lavish fundraisers and (quite often) issues that are completely unrelated to the state AGs mandate. Laws against corporate influence -- including things like having to register to lobby and preventing revolving door issues -- often don't apply to lobbying state AGs, and so the money and influence has come pouring in, which is making state AGs quite happy.

All this is prelude to the amicus curiae brief (friend of the court) filed by 40 state AGs in the appeal of that ruling against Hood. If you think that the state AGs are going to give up their new lobbying gravy train or their power to unconstitutionally shake down big companies, you've got another thing coming. The entire brief is one of "Hey we need this power, because FUD!" It starts out with a heartfelt plea for the continued right to "investigate potential violations of state law." Except, of course, that's almost never what these cases are about. Often there are no violations of law at all, but rather an attempt to blame companies for actions of their users -- which again is protected from liability.

If allowed to stand, the District Court’s March 27, 2015 order (the “Order”) enjoining the Mississippi Attorney General’s enforcement of his own subpoena would provide a roadmap for any potential wrongdoer subject to a legitimate state law enforcement investigation to attempt to thwart such an inquiry. With the Order as a guide, any target of a state investigation would be invited to conjure up potential federal defenses to yet-to-be filed civil claims and file a preemptive lawsuit in federal court against state law enforcement authorities. Such an outcome would undermine Attorneys General’s powers, granted to them by state constitutions and state statutes, to protect the general citizenry from violations of state law. It would also flood the federal courts with what amount to state-law discovery disputes. And it should not be countenanced by this Court.

What a bunch of hogwash. If there's a legitimate violation of state law, then such cases will quickly get dumped. In this case, it was clear from the beginning that the investigation (again, paid for and run by the MPAA rather than Hood's office) had nothing to do with "violations of state law." It was, as revealed by the Sony emails, entirely about trying to attack Google. That's why the court ruled in Google's favor, noting directly that Hood's proceeding "was brought in bad faith" and "with the purpose of harassing" Google in an effort to "coerce Google to comply" with unconstitutional demands to remove material from its website (in violation of the First Amendment).

The only situations in which Google's lawsuit provides a "roadmap" to others is if these state AGs are doing a similar attempt to use their power to demand the censorship of First Amendment-protected content at the behest of corporate interests. If they're not doing that, they don't have much to worry about. But, I guess, if you look at all those examples above, those kinds of bogus actions are an important part of some AGs' press and fundraising strategies. No wonder they're so loathe to give it up.

The state AGs' brief continually argues that state AGs should have almost unlimited power to investigate anything, because that's a huge source of their power, but it's equally the source of the kind of corruption that the NY Times article spoke about:

In furtherance of this paramount duty, Attorneys General have broad authority under the common law and/or state statutes1 to investigate potential violations of state laws within their jurisdiction, particularly state consumer protection laws.

But that broad authority does not trump the First Amendment and in no way should allow state AGs to launch massive investigations funded for and run by corporate entities into companies those entities don't like -- and whose sole purpose appears to be to violate the First Amendment rights of those targeted. This is a pretty basic and obvious distinction, and the fact that these state AGs play dumb about it is ridiculous, though not all that surprising.

The filing goes on and on about the importance of "civil investigative demands" (CID) -- the kind of subpoena-like tool that the MPAA wrote for Hood to send to Google. And no one doubts the importance of such tools. No one is questioning that. What's being questioned in this case is the ability for a third party representing corporate interests to write such a CID, give it to a state AG, and have that state AG send it -- especially when the clear intended purpose of that CID is not to investigate any violation of state law, but rather to force a company to censor content in violation of the First Amendment. Again, these distinctions are pretty obvious and the state AGs' brief ignores them all.

The state AGs also attack the fact that Google went to a federal court here, arguing that since Hood hasn't yet filed suit, Google has no right to go to court first -- which is just wrong. Not only has Hood made his intentions clear, Google is noting that it is protected under federal law from the crux of this investigation (to which the court agreed) and thus it is perfectly reasonable to seek an injunction by going to court.

And, of course, the state AGs try to attack Section 230. As we already noted, the state AGs have been lobbying strongly for a special exemption to Section 230 that would allow state AGs to ignore it. And here, it doesn't take them long to refer to the one case that has limited the interpretation of Section 230, the infamous "roommates.com" case, which argued that the site was not protected for content that it created itself (in that case, involving pull down options that could be seen as violating fair housing laws). This ruling is cited by nearly everyone seeking to undermine Section 230, and in nearly every case it has failed. That is one tiny narrow exemption from Section 230 in a very specific case, totally unrelated to the issues that Hood (er... the MPAA) are arguing in the CID that was sent. But, no matter, the state AGs see a tiny, tiny loophole and attempt to drive a Mack truck through it:

Google attempts to avoid this jurisdictional bar by arguing, in part, that it is entitled to immunity under the Communications Decency Act for any state law consumer protection claims the Attorney General may bring against it. Notably, however, the immunity the CDA affords internet service providers is not absolute. Although the CDA immunizes an interactive computer service from liability for content posted by a third party, it does not provide immunity for content or speech properly attributable to the service provider itself. See Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc) (“Section 230 of the CDA immunizes providers of interactive computer services against liability arising from content created by third parties[.]”) .... Accordingly, the Mississippi Attorney General is entitled to investigate Google’s activity to determine whether Google may be responsible for web content violative of Mississippi’s Consumer Protection Act. Indeed, it is unfair to ask the Attorney General to respond to Google’s contention that the CDA cloaks it with immunity when Google is withholding, and now has a preliminary injunction permitting it to withhold, the very materials that will allow the Attorney General to evaluate whether the CDA applies to Google’s acts and practices.

In other words, because of the very narrow and specific Roommates.com ruling, state AGs should be able to demand all sorts of stuff from companies, even if everything they're targeting is protected by Section 230, just in case the fishing expedition happens to turn up something not protected by Section 230. That interpretation effectively eviscerates the entire point of Section 230 protections and would allow the state AGs to shake down companies over actions they had nothing to do with. Such an interpretation is not just dangerous, it basically would open the floodgates to more of these bogus corporate-run and corporate-funded investigations.

The state AGs also present a ridiculous and misleading claim of "What's the big deal here, Google can just respond to the subpoena and it's not required to change any practices..."

Yet, here the Attorney General’s Subpoena merely represents an investigation. Responding to the Subpoena itself would not force or coerce Google to change its practices and procedures or otherwise abandon its rights. And, in fact, Google has not changed its behavior based on the Subpoena in order to eliminate the threat of potential prosecution--instead, it seeks to eliminate that threat through its lawsuit and the preliminary injunction.

But that ignores the entire history of how the state AGs operate. Again, read that story about Chris Tolles and Topix and his interactions with the state AGs. Despite no legal basis whatsoever, the state AGs constantly used any information he gave them in out-of-context and misleading press releases, creating a massive wave of bogus public pressure to force him to give in or just keep fighting more bad publicity and more bogus threats.

Whatever happens in this particular case, it seems abundantly clear that many state AGs are out of control and somewhat drunk on the power of the office they hold -- which has created a situation that can only be described as corrupt. They have tremendous investigatory powers to demand information, and yet there are almost no real limits on how they can effectively sell that power to third parties in the form of fundraisers and even handing over the keys to the investigation to those third parties themselves, as demonstrated by the MPAA writing out the entire CID that Hood sent Google. It's not surprising that fellow state AGs don't want to give up such power, but hopefully the court sees through this kind of power grab and puts an end to these kinds of bogus "investigations."

Nothing in this case would end the state Attorneys General legitimate investigatory powers. It would only serve to stop the abusive practice of allowing special interests to run clearly unconstitutional campaigns against companies they dislike by laundering them through state AGs offices -- or to stop the AGs themselves from engaging in these kinds of grandstanding against companies by misrepresenting what's happening and the law in order to get headlines. If the AGs want headlines and to present themselves as protecting the public, perhaps they could focus on actual law breakers instead.

Filed Under: attorney general, cda 230, censorship, copyright, corruption, grandstanding, jim hood, lobbying, mississippi, political power, states attorneys general

Hollywood Resists Revealing Details Of Its Cozy Relationship With Mississippi AG Jim Hood, But Glimpses Come Out

from the buddy-buddy dept

The whole legal fight between Google and Mississippi Attorney General Jim Hood has been pretty nasty from the very beginning, but it's been getting even nastier as it drags on. Even in many high stakes lawsuits involving large companies and the government, the filings tend to remain somewhat bland and low key. But this particular fight seems personal to many of the parties involved (going beyond just Google and Jim Hood to the MPAA and the studios it represents). If you don't recall, for a few years now, Hood has been bizarrely blaming Google for the fact that people do bad stuff online, rather than understanding that a search engine isn't responsible for the content that it finds. The reasons for Hood's ignorance became a lot more clear after the Sony Hack, when internal emails revealed that Hood was acting as a puppet for the MPAA whose hand was shoved so far up Hood's behind that it was a bit unseemly.

The MPAA's lawyers ran the entirety of Hood's "investigation." Those lawyers actually wrote the subpoena that Hood sent Google (Hood merely added the opening and his signature). The studios paid for the investigation, and the program itself was explicitly designed not to protect anyone online but to bring down Google (dubbed "Goliath" in the documents). The MPAA hired Hood's best friend, mentor and predecessor to lobby Hood on this... and (coincidentally, I'm sure), Hood hired the very same guy, Mike Moore, to help with the investigation -- which should raise serious conflict of interest questions. As these details were revealed, Hood launched into a bizarre anti-Google rant that was both ill-informed and often flat out incorrect. He insisted perfectly legal things (a news site about dark markets) were completely illegal, he blamed Google for not doing things it actually had done, and he couldn't seem to figure out the first thing about how the internet -- or the First Amendment -- actually work.

With this new info in hand, Google went to court to argue that Hood's demands were illegal, and a clear attempt of abusing the power of his office to attack a business. The courts have overwhelmingly sided with Google up to this point -- putting his demands (written by the MPAA) on hold and saying that it was clear Hood unconstitutionally acted in bad faith in violation of the First Amendment.

The judge also ordered Hood to cough up his communications with the MPAA -- something Hood was refusing to do the last time we checked in on this case about two months ago.

Since then, there has been a flurry of activity in multiple courts as Google, Hood and the MPAA fight it out in increasingly emotional terms. As Hood tried to resist, Google opened up another front in this and sent subpoenas to the Hollywood studios directly for those same communications and more. The studios have resisted strongly, claiming that their own documents are unrelated and they're not a party to the lawsuit. Google, however, has pointed out that since the MPAA was running the government's investigation almost entirely, it seems reasonable to argue that that information should be disclosed:

Each Subpoenaed Party asserts "work product protection," but none can identify any litigation they contemplated at the time the requested documents were created. They claim there is a "First Amendment privilege" shielding their activities from discovery, but they cannot explain how it applies here where they are engaged in lobbying government officials, where that lobbying is a matter of public record, and where their conduct is in no way likely to meet with government reprisal. And they assert "common and joint interest privileges" but cannot articulate any valid "interest" that creates or preserves a privilege. While some responsive documents might theoretically be subject to the attorney-client privilege, the Subpoenaed Parties have not collected or reviewed such documents, let alone provided a privilege log for them.

The studios then hit back angrily at these requests arguing that Google is going way overboard in asking for basically all of its anti-Google documents, even those it never actually sent to Hood (after finally agreeing that they would produce its communications with Hood):

The MPAA and Jenner have already agreed to produce all responsive documents they exchanged with Attorney General Hood prior to Google’s lawsuit; after all, only documents that Attorney General Hood actually saw could conceivably influence him. That should suffice if Google wants to probe the Attorney General’s motives.

Google filed the present motion because it insists on more. Google demands documents that the Attorney General never saw, and that instead include the internal deliberations of the MPAA, its communications with its members, and the legal advice of Jenner, as well as communications with others similarly aggrieved by Google’s conduct, on the misguided theory that such documents somehow are probative of Attorney General Hood’s intent. Moreover, Google’s demands impose very substantial burdens on the subpoenaed parties, not only because they require a wide-ranging search for documents, but more importantly because many of the documents are protected by the attorney-client and First Amendment associational privileges. Not only would the MPAA and Jenner be required to devote countless hours to the creation of privilege logs, but further time-consuming and expensive litigation with Google over the privilege assertions would be a near certainty.

Then, last week, Google hit back in a flurry of additional filings concerning the MPAA and Hood. Many repeat the same basic points, but it's clear that the battle is getting angrier and angrier on all sides. You can sense the exasperation on the part of Google's lawyers as they explain, again, that the studios are clearly trying to hide the details of their plan to use Hood to attack their company in violation of the Constitution:

The Honorable Judge Henry T. Wingate has ruled that Google is likely to succeed against AG Hood under Constitutional and federal law.

It is undisputed that the parties before the Court on this motion — Twenty-First Century Fox, Inc. (“Fox”), NBCUniversal Media, Inc. (“NBC”), and Viacom, Inc. (“Viacom”) (collectively “the Subpoenaed Parties” or “the Studios”) — played key roles in AG Hood’s unlawful conduct. The record already shows that as part of a secret plan called “Project Goliath,” they spent hundreds of thousands of dollars lobbying state attorneys general to pressure Google to alter its search results and other products in service of their agenda on federal copyright issues. In connection with Project Goliath, lobbyists for the Subpoenaed Parties formulated AG Hood’s demands to Google and ghost wrote AG Hood’s talking points, letters and even the CID that prompted Google’s lawsuit and Judge Wingate’s injunction.

Despite this extensive involvement in the events giving rise to the underlying litigation, the Subpoenaed Parties claim here that: (a) documents regarding Project Goliath, beyond their direct communications with AG Hood, are irrelevant; (b) they should not, in any event, be burdened to produce what they have; and (c) that such materials might be privileged — but it is “premature” to assess that issue. None of these arguments has merit.

And then, after the MPAA revealed some of the requested documents, Google went back to court to highlight that what's been emailed only serves to more strongly support the claims of a questionable relationship between Hood and the studios, which should support their arguments for more information. It starts out with Google outright mocking the MPAA's argument that it's unfair to force them to hand over documents to a court in Mississippi, since they're NY-based companies not operating in Mississippi. Google points out that the MPAA and the studios seemed to have no problem at all going to Mississippi to hang out with Hood, so it seems odd for them to suddenly act as if Mississippi is out of the way.

The MPAA and Jenner claim that Google somehow “dragged [them] into its dispute with [the] Attorney General.” ... The DCA portrays itself as a mere amicus of the Mississippi court, and reassures this Court that it “does not do business in Mississippi.” ... Their rhetoric does not match reality.

The Subpoenaed Parties sought out Mississippi when they co-opted the state’s Attorney General for their anti-Google campaign. Documents withheld by the MPAA until last week reveal a stunning level of involvement in Mississippi’s affairs. The MPAA and Jenner repeatedly travelled to the state to meet with the attorney general; they hosted campaign fundraisers and made contributions for Attorney General Hood (“AG Hood”); and they controlled the pen used to draft AG Hood’s illicit demands and threats to Google. The DCA (funded by the MPAA) likewise visited with AG Hood in Mississippi, established a presence on the ground, and regularly communicated with him — retaining Mississippi’s former attorney-general, Mike Moore, to lobby AG Hood as part of “Project Goliath.” It was Google that was “dragged” into this dispute by the Subpoenaed Parties, and not the other way around.

And then there's more:

The Subpoenaed Parties have made clear that they have no problem acting in Mississippi when it suits their ends. After their years of direct involvement there, litigating objections to a single subpoena in the state could not be an undue burden.

The filing notes that while the MPAA revealed its communications with Hood to Google, it did so only if Google promised to keep them confidential. Google notes that there is no legal reason to do so, but for now it agrees to do so. However, it does reveal the nature of what's in some of them. And what it shows is the MPAA and Attorney General Hood working hand in hand, with the MPAA basically calling the shots.

The Subpoenaed Parties and their representatives made repeated visits to AG Hood’s office in Mississippi to guide his anti-Google work. Even when they weren’t physically at AG Hood’s office, they may as well have been, getting together with him in Denver and Santa Monica and holding a fundraising dinner for him in New Orleans. But those interactions only scratch the surface, as the documents reveal remarkably cozy and constant communications between the Subpoenaed Parties and AG Hood... (MPAA’s Brian Cohen greeting one of AG Hood’s staffers with “Hello my favorite” and offering to send her pictures of his vacation in New Zealand); .... (discussing a meeting with AG Hood’s staff the MPAA’s Cohen gushed “OMG we spent 3 hours.”). This pattern of sustained, intimate contact is hardly the mark of a party that merely “communicated with Attorney General Hood” “previously” as the MPAA characterizes itself.

Despite protesting that Google has “inappropriately grouped” it with the MPAA and Jenner ..., the DCA is no different. It retained Mike Moore, Mississippi’s former attorney general, as a lobbyist to influence AG Hood regarding his Google investigation, even while Moore was serving as a deputized agent of AG Hood in connection with that same investigation. Alongside the MPAA lobbyists, Moore too was in constant contact with AG Hood regarding Google. And he co-hosted the campaign dinner for him that the MPAA put on. ... Similarly, the DCA’s Executive Director, Tom Galvin, was personally involved in discussions with AG Hood, also traveling to Mississippi to meet with him.... Although the DCA claims it “does not do business in Mississippi” ..., its “business” is lobbying and manufacturing press at the behest of the MPAA which heavily funds it. It was extremely active in that regard in Mississippi. The Subpoenaed Parties did not act alone in animating AG Hood with respect to Google, they coordinated their efforts with the major Hollywood studios who make up the MPAA, including Fox, NBCU and Viacom (collectively the “NY Parties”). That coordination continues to this day — the NY Parties are using the same law firm, Jenner, to resist subpoenas from Google, and in the Southern District of New York, they have made relevance, burden and privilege arguments that are virtually identical to those that the Subpoenaed Parties have advanced here.

There's a lot more in the documents being filed (some of which we'll cover in other posts), but suffice it to say this fight is getting even nastier as it continues, and it sounds like the contacts between the MPAA and Jim Hood (the same emails that wanted a ridiculous amount of money to reveal following our public records request) show that the relationship was even tighter than was revealed from the leaked Sony emails.

Filed Under: attorney general, cozy relationship, jim hood, lobbying, mississippi, project goliath
Companies: digital citizens alliance, google, jenner & block, mpaa

Why Is The Attorney General Making Claims About PATRIOT Act That Her Own Agency's Report Says Are Not True?

from the total-failure dept

We already posted about the new DOJ Inspector General report analyzing the FBI's use of the PATRIOT Act's Section 215 "business records" collection. Among the various things in the unredacted sections of the report is yet another claim (following on many similar statements) that the Section 215 program has never been shown to actually be that useful: That wasn't all that interesting on its own, given how many times others (including many with the security clearance and access to know) have made the same point. But what's incredibly troubling is that the very same day that this report came out, Attorney General Loretta Lynch was making the rounds claiming the exact opposite.

Meanwhile, today Attorney General Loretta Lynch weighed in on the debate in Congress, claiming the exact opposite. She was quoted by CBS News as saying that if Patriot Act Section 215 expires: “[W]e lose important tools. I think that we lose the ability to intercept these communications, which have proven very important in cases that we have built in the past.” (emphasis mine)

So to sum up: the Justice Department’s own Inspector General said information collected under Section 215 did not lead to "any major case developments,” but the Attorney General said that Section 215 has “proven very important in cases that we have built.” Both statements cannot be true.

And, remember, the Attorney General is the head of the Justice Department. It certainly sounds like she's either woefully uninformed or outright lying. She is new at the job, but not so new that she wouldn't know these basic facts.

And, in some ways it gets even worse. As Patrick Eddington points out, Lynch appears to be directly calling for the continuation of a program that the 2nd Circuit appeals court just declared illegal. Doesn't that raise some fairly important questions, when you have the Attorney General -- the person officially in charge of enforcing our laws insisting that we need to continue an illegal program?

Filed Under: attorney general, doj, loretta lynch, patriot act, section 215

Court Doesn't Buy Mississippi Attorney General Jim Hood's Argument: Puts His Google Demands On Hold

from the nice-try,-jim dept

Back in December, we noted that Google had gone to court to try to stop a ridiculously broad subpoena issued by Mississippi Attorney General Jim Hood. For quite some time now, Hood has been publicly attacking Google, based on what appears to be near total ignorance of both the law and technology. Oh, and maybe it also has something to do with the MPAA directly funding his investigation and authoring the letters that Hood sent.

Either way, Google pointed out that the broad subpoena that Hood issued to Google clearly violated Section 230 of the CDA in looking to hold Google accountable for other's actions and speech. It pointed out other problems with the order as well -- and while Hood insisted that his subpoena was perfectly reasonable, it appears that a federal court isn't so sure. Today the court told Hood that he's granting a temporary injunction on the subpoena, noting that Google's argument is "stronger."

This certainly is nowhere close to over, but it does highlight that Hood's repeated arguments that he has every right to hold Google accountable for the fact that sometimes people use the search engine to find illegal stuff, isn't particularly convincing to at least one federal judge.

Filed Under: attorney general, jim hood, mississippi, section 230, subpoena
Companies: google

Nominee For Attorney General Tap Dances Around Senator Franken's Question About Aaron Swartz

from the fix-the-cfaa dept

We've discussed for years how broken the CFAA (Computer Fraud and Abuse Act) is. The law, which was written many years ago, is problematically vague in certain areas, allowing prosecutors to claim that merely breaking a terms of service you didn't read is a form of felony hacking -- as they define it as "unauthorized access." While there have been many egregious CFAA cases, one of the most high-profile, of course, was that of activist Aaron Swartz, who was arrested for downloading too many research papers from JSTOR from the computer network on the MIT campus. The MIT campus network gave anyone -- even guests -- full access to the JSTOR archives if you were on the university network. Swartz took advantage of that to download many files -- leading to his arrest, and a whole bunch of charges against him. After the arrest, the DOJ proudly talked about how Swartz faced 35 years in prison. Of course, if you bring that up now, the DOJ and its defenders get angry, saying he never really would have faced that much time in prison -- even though the number comes from the DOJ's (since removed) press release.

Swartz, of course, tragically took his own life in the midst of this legal battle, after facing tremendous pressure from the DOJ to take a plea deal as a felon, even as Swartz was sure he had done nothing illegal or wrong. Since then, there have been a few attempts to update the CFAA to block this kind of abuse, but they have been blocked at every turn by a DOJ that actually wants to make the law even worse. This includes the White House's latest proposal for CFAA reform, which would actually make more things a felony under the CFAA, and could drastically increase sentencing for things that many of us don't think should be a crime at all -- such as tweeting out a list of worst passwords on the internet.

Outgoing Attorney General Eric Holder has done his best to ignore or downplay any suggestion that his Justice Department abused the CFAA in going after Swartz. And it looks like his likely replacement is trying to do the same.

Senator Al Franken questioned nominee Loretta Lynch about Swartz and the CFAA and got back a response that is basically her avoiding the question. She doesn't say anything about Swartz, but goes off on some FUD about the dangers of malicious hackers and how the DOJ needs the tools to fight spyware. She then claims that the newly proposed CFAA changes are okay because they only increase the possible maximum sentences, but not the minimums, leaving things up to the discretion of judges (and prosecutors):

Question 1. The Computer Fraud and Abuse Act (CFAA) has received attention for its potentially harsh penalties. In 2013, I wrote a letter to the Department of Justice expressing my concern about the way in which Aaron Swartz was aggressively prosecuted under the CFAA, and associating myself with a similar letter by Senator Cornyn. The Department’s response was, in short, that the prosecution of Swartz was consistent with the Act. Since then we have heard many people – from all over the political spectrum – call for reform of the CFAA. Recently, the White House announced a proposal to amend the Act. Some have characterized the proposal as a step in the wrong direction, noting – for example – that it would increase certain sentences. What is your assessment of these criticisms, and what is your opinion of the proposal?

RESPONSE: I believe that the Department of Justice has a responsibility to protect Americans from invasions of their privacy and security by prosecuting and deterring computer crimes. Accordingly, we must ensure that the CFAA, like all of our tools, remains up-to-date and reflects the changes in the way that cybercrimes are committed, changes that have occurred in the decades since it was first enacted. For example, I understand that the Administration’s proposals include provisions designed to facilitate the prosecution of those who traffic in stolen American credit cards overseas, to enable the Department to dismantle botnets that victimize hundreds of thousands of computers at a time, and to deter the sale of criminal “spyware.”

With respect to the sentencing provisions contained in those proposals, I believe it is appropriate to ensure that, in the event a defendant is convicted of a hacking offense, the sentencing court has the authority to impose a sentence that fits the crime. For example, the enormous harm caused by the massive thefts of Americans’ personal financial data from retailers illustrates the need to ensure that the maximum sentences available are adequate to deter the worst offenders. As the level of harm caused by the worst cybercrimes increases, I support increasing the maximum penalties available to punish those crimes to a level commensurate with similar crimes, such as mail fraud or wire fraud.

It is also important to understand that these statutory maximum sentences do not control what sentence is appropriate for less significant offenses under the CFAA. In many criminal prosecutions, including prosecutions under the CFAA of all but the most serious offenses, the statutory maximum penalty has little or no impact on the sentencing of convicted defendants. Instead, in each case, prosecutors make individualized sentencing recommendations, and judges make individualized decisions, based on such factors as the facts of the case, the offender’s history, and the U.S. Sentencing Guidelines.

Finally, I note that the Administration’s 2015 proposal does not include any new mandatory minimum sentences, and I support the decision not to seek any such new sentences in the CFAA at this time.

This, of course, misses the point. First, it assumes that longer sentences are somehow going to do anything to diminish the likelihood of malicious attacks. It won't. This is such a total braindead law enforcement view of things: that if only there were greater punishment it would scare the "bad people" out of doing what they're going to do. That's never really worked, and especially not in this area, where the law is being abused to go after people who don't think they're actually doing anything wrong.

Second, it just plays up the FUD that "bad stuff is happening" so "something must be done." But it ignores how vague the law is and how it's wide open to abuse. A good law enforcement official would ask for clearer laws that more narrowly target actual bad behavior, rather than celebrating a broad and vague law that can be, and is, widely abused just to rack up more DOJ headlines and "victories."

Filed Under: aaron swartz, al franken, attorney general, cfaa, doj, loretta lynch

Judge Resigns From Forensic Science Committee, Calls Out DOJ's 'Trial By Ambush' Tactics

from the you're-free-to-'discover'-this-evidence-AFTER-it's-been-used-to dept

Law enforcement agencies -- including the FBI -- haven't put together the best track record when it comes to forensic evidence. The issues range from fraud to the deployment of junk science. This has led to several wrongful imprisonments. This has also led to the government seeking to address these problems in a very "government" sort of way -- by convening a committee to study the issue, headed by the DOJ.

Issues were found, but the DOJ doesn't want to talk about them. The problems it doesn't want to talk about were a fundamental part of the committee's purpose.

The panel was created to improve the overall reliability of forensic evidence after instances of shoddy scientific analysis by federal, state and local police labs helped convict suspects.

Were. But no longer. This change is what prompted the only federal judge (Judge Jed S. Rakoff) on the committee to resign (after learning of it via an evening phone call from the Deputy Attorney General). From his letter of resignation:

Last evening, January 27, 2015, I was telephonically informed that the Deputy Attorney General of the U.S. Department of Justice has decided that the subject of pre-trial forensic discovery -- i.e., the extent to which information regarding forensic science experts and their data, opinions, methodologies, etc., should be disclosed before they testify in court -- is beyond the “scope” of the Commission’s business and therefore cannot properly be the subject of Commission reports or discussions in any respect.

Which is contrary to the committee's goals. To fix broken forensics, you need to fix the discovery aspects. The government would rather keep both its bad forensics and broken discovery procedures because it gives it an advantage when it comes to prosecution.

Because I believe that this unilateral decision is a major mistake that is likely to significantly erode the effectiveness of the Commission -- and because I believe it reflects a determination by the Department of Justice to place strategic advantage over a search for the truth -- I have decided to resign from the Commission, effective immediately. I have never before felt the need to resign from any of the many committees on which I have served over the years; but given what I believe is the unsupportable position now taken by the Department of Justice, I feel I have no choice.

Rakoff points out elsewhere in his resignation letter that defendants in criminal cases are perpetually disadvantaged during forensic discovery.

As the federal rules of criminal procedure now stand, prosecutors who intend to call forensic experts to testify do not have to supply the same full pre-trial discovery about those experts and the methodological and evidentiary bases for their opinions that parties calling forensic experts in civil cases are required to supply under federal rules of civil procedure.

The DOJ likes its strategic advantage and doesn't want Rakoff screwing with it. You say you want due process? Too bad. As a criminal defendant in today's justice system, you're little more than a bullet catcher for prosecutorial gunslingers.

The notion that pre-trial discovery of information pertaining to forensic expert witnesses is beyond the scope of the Commission seems to me clearly contrary to both the letter and the spirit of the Commission’s Charter… A primary way in which forensic science interacts with the courtroom is through discovery, for if an adversary does not know in advance sufficient information about the forensic expert and the methodological and evidentiary bases for that expert’s opinions, the testimony of the expert is nothing more than trial by ambush.

There's supposed to be equitable sharing and access to anything uncovered during discovery. But there obviously isn't. Rakoff recognized this and made his opinion known to the DOJ. Law enforcement agencies have apparently grown used to dealing from the bottom of the discovery deck and the United States' Deputy DA wants this privilege to remain intact. (See also: Judge Kozinski's dissenting opinion, which called out prosecutors for their "epidemic of Brady [exculpatory evidence] violations." It's not just junk science and fraud. It's also the withholding of evidence that could clear a person facing criminal charges.)

Rakoff's strongly-worded resignation letter (which has been published in full all over the internet) has led to a very minor concession from the DOJ.

However, Acting U.S. Deputy Attorney General Sally Q. Yates invited Rakoff to return, saying she had not been aware the commission had worked openly on its plans for nearly a year.

Yates told the National Commission on Forensic Science that “it seemed only fair” that it “make its determination as to what information should be provided to the Attorney General.”

“This is obviously a critically important issue to the Department,” Yates said. “We take very seriously our obligation to ensure that defendants receive a fair trial."

Except that its original conversation with Judge Rakoff indicates that it would rather do anything but "ensure… defendants receive a fair trial." But its "trial by ambush" intentions were exposed by Rakoff's public resignation and it had no choice but attempt to paper this over with some honorable-sounding words.

While committing to nothing, and mouthing the empty platitudinous “We take very seriously our obligation to ensure that defendants receive a fair trial,” which is a corollary to “we’re from the government, and we’re here to help,” at least one honorable person will sit on the committee to see whether this rises to the level of serious reform.

So, Judge Rakoff is back on the panel. Hopefully, this will lead to a change in the system and a public release of information relating to law enforcement's forensic failings. This nation seems to have no shortage of zealous prosecutors who are willing to secure convictions at the expense of true due process. The balance needs to shift back to the center. Judge Rakoff's resignation has brought this long-running problem back out into public eye -- along with the DOJ's apparent desire to keep its ambush tactics from being disrupted.

Filed Under: attorney general, doj, forensic evidence, forensics, jed rakoff

More Evidence Revealed Of Hollywood's Chummy Relationship With State Attorney General... Even As He Plays Dumb

from the sometimes-it's-not-that-hard-to-play dept

The saga of the MPAA and it's uncomfortably close relationship with Mississippi Attorney General Jim Hood, continues to unfold. If you don't recall, the Sony Hack revealed that the MPAA had such a close relationship with Hood that it was allotting between $585k and $1.175 million to fund Hood's (misguided and based on faulty premises) investigation into Google, even promising $100k in media support. Hood responded by first denying any serious relationship with the MPAA, only to have it come out that not only had the letter that Hood had sent to Google demanding answers been almost entirely written by the MPAA's lawyer (gotta clear the metadata, guys), but that the MPAA had hired Hood's close friend, political mentor, and predecessor in office Mike Moore to push its agenda to Hood via the Hollywood front group "Digital Citizens Alliance."

Hood, apparently, is not backing down -- though his claims are looking increasingly ridiculous. The Huffington Post discovered that not only had the MPAA's Tom Perrelli written the initial letter, but also that Perrelli prepped Hood for his meeting with Google, telling him what to say to Google. Not only that, but Hood directly called the MPAA, asking for help in going after Google. And, yet, Hood still wants to claim there's nothing there, insisting that he had no idea who Perrelli even worked for.

Really.

First, the damning evidence:

Emails obtained by The Huffington Post show that in January, Mississippi Attorney General Jim Hood (D), president of the National Association of Attorneys General, called a lobbyist for the Motion Picture Association of America (MPAA). Hood was looking for evidence of Google search results leading people to websites with pirated content -- evidence that he hoped to have on hand for an upcoming meeting with the search giant. Besides speaking with the lobbyist, Hood also worked with an outside counsel for the MPAA, a lawyer named Tom Perrelli, who prepped him and other state AGs on what to say during their meeting with Google.

Then the hard-to-believe denial:

Hood said he wan't aware that he was consulting with a lawyer who works with the MPAA on intellectual property issues. He added that he wouldn't find that problematic, if that was indeed the case.

Hood told The Huffington Post that Perrelli has offered to assist his office in its efforts to get search engines to "detect and delist" websites with illegal content and products. He said he did not know that Perrelli is a partner at Jenner & Block, a law firm retained by the MPAA.

"I could not tell you which law firm he works for now," Hood said, adding that he is "not aware" of the relationship between Jenner & Block and the MPAA.

So, Jim Hood would have you believe that he has no idea that Tom Perrelli works for Jenner & Block, or that he's outside counsel for the MPAA, and he expects people to just believe that?

Oh, and some more evidence that Hood absolutely knew he was working with the MPAA and reached out to them for "help":

According to other leaked documents, on January 16 of this year, Vans Stevenson, senior vice president for state government affairs at the MPAA, sent an email titled "STATE ATTORNEYS GENERAL PROJECT: Update on AG Denver Meeting With Google Executives" to representatives from the Recording Industry Association of America and others. The email listed 14 AGs and deputy or assistant AGs who were scheduled to attend that meeting.

In that email, Stevenson wrote: "General Hood called me last night and asked that we provide fresh examples for his planned live 'search' demonstration of illegal site activity, including the availability of motion pictures only in theatrical release, which we are working on with our outside counsel Tom Perrelli’s team."

Note, that earlier this week, Hood had clearly said that he "has never asked MPAA a legal question." Okay, so he insists he's never asked the MPAA a legal question, but called up its government affairs guy and spent hours with the MPAA's top lawyer. And people are expected to believe this?

Watch the spin:

Hood, who told HuffPost he had received assistance from the MPAA but never asked the group any legal questions, noted that Stevenson "is not an attorney, so I would not have sought legal advice from him." He added, "As I said several times, we frequently ask the companies who report intellectual property theft to assist our office in identifying counterfeit items and evidence of how their property is being stolen."

So he called the MPAA "for assistance." Yet, that's not actually what the leaked MPAA emails reveal. Instead, it shows that he called them asking for "search examples" for his staged outrage party directed at Google.

Google has finally spoken out about this and, not surprisingly, the company is not amused, pointing out that this seems like a really nasty way for the MPAA to revive SOPA via Jim Hood. Further, it calls into question the thinking behind the MPAA's campaign:

While we of course have serious legal concerns about all of this, one disappointing part of this story is what this all means for the MPAA itself, an organization founded in part “to promote and defend the First Amendment and artists' right to free expression.” Why, then, is it trying to secretly censor the Internet?

As we noted last time, Hood has a bit of a reputation down in Mississippi for questionable activities, so we can just throw this on the pile. The WSJ once called him a "so-called Attorney General" after a federal judge called Hood out as "so-called law enforcement" for "colluding with [a] trial kingpin to evade a court order." Furthermore, Judge William Acker called out Hood for being "a co-conspirator... and an aider and abetter" You can read all the sketchy details about it here.

Perhaps it's true that Jim Hood meets with high powered lawyers when he doesn't know who they work for. Perhaps it's true that -- without knowing who's paying their bills -- he takes documents from them and sends them off with almost no changes to companies demanding "answers." But if his excuse is, honestly, that he cares so little about the details that he's willing to be a patsy for big corporate lawyers without even knowing who he's now really working for that doesn't make him look good. The choice here seems to be either that Hood is lying about being deeply connected to the MPAA, and the MPAA is practically running his investigation (including the funding and writing the threat letters and subpoenas) or that Hood is so clueless that he doesn't bother finding out who high powered lawyers are working for before accepting their 4,000 word threat letters, signing his name to them and shipping them off.

I'm not sure which scenario makes him look worse.

Filed Under: attorney general, jim hood, mississippi, sony hack, tom perrelli, vans stevenson
Companies: jenner & block, mpaa