Both Democrats And Republicans Blame The Messenger When Leaked Emails Are Made Available

from the stop-it dept

Back during the 2016 election, when Wikileaks published John Podesta's leaked emails, Democrats freaked out and blamed Wikileaks, and even tried to lie about the validity of those emails. Many supporters of the Democratic party, to this day, believe that Wikileaks and/or Julian Assange should face legal consequences for publishing those hacked emails. Of course, Republicans cheered on that effort. Sean Hannity, who back in 2010 was screaming about how Assange was "waging his war against the U.S." by publishing the leaked documents from Chelsea Manning and demanding that Obama "arrest" Assange, is now seen as one of Assange's most vocal supporters even having him on his show.

But, of course, when the shoe is on the other foot, things change. Just recently, various news organizations started reporting on shenanigans by top Trump fundraiser, Elliott Broidy, based on a leak of Broidy's emails. Broidy's not taking this very well, issuing a subpoena to the Associated Press to try to uncover the news organization's source for his emails.

No one is saying that it's okay to hack into someone'e email. But in both cases we're talking about those who are upset about an email leak going after the organization publishing the details of the leak and blaming the messenger. Just because documents are leaked or hacked or obtained through questionable means, it does not mean that news organizations can't publish them. Nor does it mean that they have to hand over the details of their sources. But it is worth noting that I don't see anyone who was screaming about Wikileaks now supporting Broidy's demands to the AP. Nor do I see those who were defending Wikileaks now defending the Associated Press against Broidy.

It's almost as if most of the people on either side of this political horse race are determining which news orgs to support based on whose side the revelations help. That's... bad. We should support a free press and condemn attacks on news organizations when they're revealing newsworthy leaked information, no matter whether the news helps or hurts "your" side. Treating politics as a "red team" v. "blue team" sport leads to bad outcomes for everyone's rights.

Filed Under: elliott broidy, emails, john podesta, journalism, julian assange, leaks

UK Gov't Destroys Key Emails From Julian Assange Case, Shrugs About It

from the because-retaining-them-meant-someone-might-access-them dept

More irresponsible handling of documents has been uncovered by public records requests. Information you'd think the government would actually want to hang onto has apparently been deleted by those charged with retaining it.

The Crown Prosecution Service is facing embarrassment after admitting it destroyed key emails relating to the WikiLeaks founder Julian Assange, who is holed up in Ecuador’s London embassy fighting extradition.

Email exchanges between the CPS and its Swedish counterparts over the high-profile case were deleted after the lawyer at the UK end retired in 2014.

The destruction of potentially sensitive and revealing information comes ahead of a tribunal hearing in London next week.

This auspicious disappearance was sniffed out by Italian journalist Stefania Maurizi, who has been covering Wikileaks for the better part of a decade. And, because it's now unavoidable, it has admitted the destruction in court as part of its filings in a FOI lawsuit brought by Maurizi.

CPS officials are now offering defensive statements about the document destruction, assuring the public, angry FOI requesters, and other government branches that they are willing to dissonantly cogitate their way out of this embarrassment.

Statement 1:

Asked if the CPS had any idea what was destroyed, a spokesperson said: “We have no way of knowing the content of email accounts once they have been deleted.”

Statement 2:

A legal manager at the CPS, Mohammed Cheema, who has been dealing with the FOI requests, said, in a lengthy witness statement in August this year, that the Assange case file comprises mainly 55 lever-arch files, one A4 file and a selection of other paper files.

He added it was very unlikely the CPS held further significant email correspondence.

I guess it all depends on when you ask the question. The second statement could be true pre- or post-email deletion, but probably more likely to be true after the scrubbing. But it's a bit rich to ask everyone to believe these are simultaneously true -- that the contents are unknown but also unlikely to be significant.

The chance something "significant" may have been deleted remains high. And it will always remain so because the absence of emails means the absence of contradictory evidence. The UK is still interested in Assange and Wikileaks, even though it hasn't pressed the issue of extradition in quite some time. This is CPS's excuse for the mass deletion: the communications were related to extradition proceedings that ended in 2012 and contain nothing relevant to ongoing Assange-related government activity. According to CPS, this deletion was per policy.

“Most casework papers and related material are stored for three years following the conclusion of proceedings, or for the duration of the convicted defendant’s sentence plus three months. In some cases material may be held for longer.”

The problem appears to be the policy then. If documents of interest to the public and of possible use in future prosecutions vanish just because the clock runs out, the policy would appear to run counter to the point of document retention laws. No one expects everything to be retained indefinitely, but archiving electronic documents like emails isn't exactly a Sisyphean endeavor.

The ending of an investigation or prosecution shouldn't trigger a countdown clock that expires this quickly, especially when governments are almost always able to withhold documents while investigations and prosecutions are still ongoing. Generally speaking, government agencies are the only ones that can say definitively when investigations end, leaving document requesters to figure this out through trial and error.

In this case, Maurizi will be continuing her FOI lawsuit against the CPS, but with some of the targeted documents already deleted, there's little to be gained.

Filed Under: cps, crown prosecution service, emails, evidence, julian assange, uk

Supreme Court Agrees To Hear Case Involving US Demands For Emails Stored Overseas

from the spending-locally,-thinking-globally dept

The Supreme Court has granted the government's request for review of Second Circuit Appeals Court's decision finding Microsoft did not have to turn over communications stored overseas in response to US-issued warrants.

This is a pretty quick turnaround as far as tech issues go. The Supreme Court is finally willing to take a look at the privacy expectation of third party phone records (specifically: historical cell site location info), following years of courtroom discussion... which follow years of Third Party Doctrine expansion.

That being said, a resolving of sorts is needed to clarify the reach of US law enforcement going forward. The Second Circuit twice shut down the DOJ's requests to extend its reach to offshore servers. Even as the Microsoft case was still being litigated, other courts were coming to contrary decisions about data stored overseas.

The target in these cases was Google. Google's data-handling processes contributed to the adverse rulings. Unlike Microsoft -- which clearly delineated foreign data storage -- data and communications handled by Google flow through its servers constantly. Nothing truly resides anywhere, a fact the DOJ pressed in its arguments and the one two judges seized on while denying Google's warrant challenges.

The Supreme Court's ruling will be needed to tie these disparate decisions up into a cohesive whole.

Or not. Rule 41 changes that went into effect at the beginning of this year remove a lot of jurisdictional limitations on search warrants. On top of that, the DOJ has been angling for expanded overseas powers, pushing Congress towards amending the Stored Communications Act.

This, of course, is what the Second Circuit Appeals Court told the government to do: take it up with legislators. But if litigation is a slow process, legislation can be just as time-consuming. The DOJ wants permission now and the Supreme Court gives it the best chance of being allowed to grab communications stored outside of the United States using a warrant signed by a magistrate judge anywhere in the US.

In the meantime, the DOJ will continue to pursue amendments to the Stored Communications Act -- a law it's already taken advantage of, thanks to it being outdated almost as soon as it was implemented. Further rewriting of the law in the DOJ's favor would allow US law enforcement to become the world's police, serving warrants in the US to gather documents stored around the globe.

While this may seem like a boon to law enforcement, it should be approached with extreme caution. If this becomes law (rather than just a precedential court decision) the US government should expect plenty of reciprocal demands from other countries. This would include countries with far worse human rights records and long lists of criminal acts not recognized in the US (insulting the king, anyone?). The US won't be able to take a moral or statutory stand against demands for US-stored communications that may be wielded as weapons of censorship or persecution against citizens in foreign countries. Whoever ends up handing down the final answer -- the Supreme Court or Congress -- should keep these implications in mind.

Filed Under: domestic, ecpa, emails, foreign, sca, scotus, stored communications act, subpoena, supreme court, warrants
Companies: microsoft

Months Later, VP Mike Pence Ready To Turn Over Private Emails, Explain What An AOL Account Is

from the as-transparent-as-he's-forced-to-be dept

Months after he left office to become Trump's running mate, former Indiana governor Mike Pence is finally releasing emails from his personal AOL accounts. This sort of thing would normally be reserved for only the wonkiest of public records wonks, but the Trump campaign spent a great deal of time deriding Hillary Clinton for using a personal email account to handle official State Department email.

It's slightly more of a big deal, thanks to Pence's efforts to keep these emails from becoming public. He went to court late last year to protect the content of certain emails from being released. Pence's lawyer actually argued the court had no business telling the governor's office what can and can't be redacted. So much for the idea of checks and balances.

As the result of multiple requests and multiple lawsuits, Pence is now releasing most of what [his lawyer says] is contained in his AOL accounts.

Pence attorney Karoline Jackson said in a recent email to the state's legal counsel that “a complete electronic production of state records" from Pence's time as governor had been delivered to the state as of June 23.

The office of Pence's successor, Gov. Eric Holcomb, said the records consist of state-related emails from two AOL accounts Pence used as governor.

"Our office is now in the process of reviewing the records, and we anticipate being in a position to provide copies of records that are responsive to pending (public record) requests soon," Holcomb spokeswoman Stephanie Wilson said.

So, according to his own spokespeople, Pence will finally be complying with the state's public records law. Not that he didn't try to be a dick about it.

Previously, Pence had only provided some of his AOL emails to the state, and those he did provide were in paper form, making them difficult to search.

Fortunately for those requesting the emails, the new, full batch will come in electronic form, which will greatly assist them in finding the contents they're interested in. According to the WHAS11 report, there are more than 50 open records requests targeting Pence's AOL emails.

While this doc dump will result in far more transparency than Pence is used to, there are still some concerns about what's being withheld. Rather than have his former office review the emails before turning them over to requesters, Pence had his private lawyer take a look at them instead. That's not really the way things are supposed to work for public officials. This will make redactions and withheld documents more difficult to challenge, as there's another layer -- a non-government layer -- of vetting separating requesters from their requested documents.

There's also a good chance whatever's being looked at is incomplete. Public officials who use private email for official business are supposed to forward all work-related emails to government servers for storage. At this point, there appears to be no indication Pence has done that. Instead, a privately-employed lawyer has been picking through what's left in two private AOL accounts and everyone involved is claiming, without supporting evidence, they're living up to the letter and spirit of Indiana's open records laws.

Filed Under: emails, foia, mike pence, public records, transparency

UK Government Department Says It Will Cost $7 To Send It An Email, But Only If You Are A Foreigner

from the no-real-reason,-we're-just-racist-bigots dept

Last June, the UK held a referendum on whether to stay in the European Union, or to make a British exit -- Brexit. The majority of those casting their votes -- but only 36% of the UK electorate -- chose to turn their backs on Europe and its people. Since then, the British government has been taking every opportunity to burnish its xenophobic credentials, and with some success: recent figures show that EU citizens who have been resident in the UK for years are leaving in droves.

But it seems that the UK government feels it hasn't punished those foolish enough to live beyond the white cliffs of Dover as much as it could, and has come up with a cunning new plan to show Jane and Johnny Foreigner they are not welcome in any way, shape or form. The government department that handles immigration and the granting of UK visas has just announced that there will be some additional discrimination, specifically:

customers [applying from outside the UK] who contact UK Visas and Immigration by email will be charged £5.48 [about $7]

While true-blue emails born in the pure digital air of Britain's sceptered isle can still be sent free of charge, any emails containing filthy foreign IP packets will be whacked with a $7 charge, presumably to have their electrons scrubbed clean of transmissible diseases and the smell of garlic.

The underlying message to people thinking about visiting the UK should therefore be clear: you and your pathetic tourist spending power are no longer wanted. Just like in the US.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: brexit, charging, emails, fees, uk, visas

State Supreme Court Says California Officials Can No Longer Hide Documents In Personal Email Accounts And Devices

from the an-obvious-conclusion,-nearly-a-decade-in-arriving dept

Public servants discussing public business. Should be public records, right? California politicians don't think so. The city of San Jose has spent eight years litigating the issue, hoping for the state's courts to find it permissible for public officials to hide official communications in personal email accounts and personal devices.

In 2009, activist Ted Smith requested records from the city of San Jose, triggering a long-running lawsuit which has only now reached its conclusion. A state appeals court previously ruled for the city, finding records stored in personal accounts/devices to be beyond the reach of the state's public records laws.

Fortunately, as the EFF reports, the state's supreme court has overturned that decision, making it much more difficult for public officials to stay out of the public eye. The decision [PDF] deals with the many arguments the city made -- several of which attempted to rewrite public records laws on the fly by taking certain phrases out of their context -- but the bottom line is this: public records still belong to the public, no matter where they're stored.

CPRA and the Constitution strike a careful balance between public access and personal privacy. This case concerns how that balance is served when documents concerning official business are created or stored outside the workplace. The issue is a narrow one: Are writings concerning the conduct of public business beyond CPRA‟s reach merely because they were sent or received using a nongovernmental account? Considering the statute's language and the important policy interests it serves, the answer is no. Employees' communications about official agency business may be subject to CPRA regardless of the type of account used in their preparation or transmission.

The city tried to argue its agencies didn't need to comply with the state's public record law because the statutory language didn't specify records created by employees at local agencies. The court points out this limited interpretation is, at best, deliberately obtuse.

The City draws its conclusion by comparing the Act‟s definitions of “local” and “state” agency. Under CPRA, “ „Local agency‟ includes a county; city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency thereof; other local public agency; or entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952.” (§ 6252, subd. (a), italics added.) The City points out that this definition does not specifically include individual government officials or staff members, whereas individuals are specifically mentioned in CPRA‟s definition of “state agency.”

[...]

The City contends this difference shows the Legislature intended to exclude individuals from the local agency definition. If a local agency does not encompass individual officers and employees, it argues, only writings accessible to the agency as a whole are public records. This interpretation is flawed for a number of reasons.

A disembodied governmental agency cannot prepare, own, use, or retain any record. Only the human beings who serve in agencies can do these things. When employees are conducting agency business, they are working for the agency and on its behalf… A writing prepared by a public employee conducting agency business has been “prepared by” the agency within the meaning of section 6252, subdivision (e), even if the writing is prepared using the employee's personal account.

The city also tried to claim documents stored in personal email accounts/devices were "inaccessible" to the responding agency -- and therefore inaccessible to public records requesters. Again, the court points out the obvious:

As to retention, the City argues "public records" include only materials in an agency's possession or directly accessible to the agency. Citing statutory arguments and cases limiting the duty to obtain and disclose documents possessed by others, the City contends writings held in an employee's personal account are beyond an agency's reach and fall outside CPRA. The argument fails.

[...]

An agency's actual or constructive possession of records is relevant in determining whether it has an obligation to search for, collect, and disclose the material requested. It is a separate and more fundamental question whether a document located outside an agency's walls, or servers, is sufficiently "owned, used, or retained" by the agency so as to constitute a public record. In construing FOIA, federal courts have remarked that an agency's public records "do not lose their agency character just because the official who possesses them takes them out the door." (Competitive Enterprise Institute v. Office of Science and Technology Policy, supra, 827 F.3d at p. 149.) We likewise hold that documents otherwise meeting CPRA's definition of "public records" do not lose this status because they are located in an employee's personal account. A writing retained by a public employee conducting agency business has been “retained by” the agency within the meaning of section 6252, subdivision (e), even if the writing is retained in the employee's personal account.

This ruling affects the entire state. It isn't just San Jose being made to comply with the spirit of the state's public records law by having the letter of the law explained to it by the state's highest court. It never was acceptable for public officials to hide public records in private accounts, but this ruling makes it officially wrong. Those looking to keep public discussions away from the public will have to be a bit more creative from now on, like the Sacramento legislators who have turned to self-destructing instant messages to play public records keepaway with their constituents.

Unfortunately, using personal accounts/devices is still widespread at all levels of government. This means there's no quick fix. It will take a steady stream of court rulings to make this official everywhere. And that makes it the public's problem, as it takes constituents with the will and the funding to spend years in court forcing government agencies to do what they always should have been doing.

Filed Under: california, emails, foia, public records

Vice President Fails To Demand An FBI Investigation After His Private Email Account Is Hacked

from the investigations-are-for-other-people dept

I can only assume Mike Pence is so self-absorbed he's literally incapable of recognizing his own hypocrisy. Either that or he's completely shameless.

After engaging in a presidential campaign where much was made of Hillary Clinton's private email address/server, Pence went to court to prevent his AOL emails from being released to public records requesters.

I can only assume Pence is now welcoming an FBI investigation into his use of an AOL account.

Clinton routed sensitive documents through an insecure personal server. Pence is doing the same. While Clinton was advised against setting up her own personal email server, it's likely Pence has had an AOL account for a long, long, long time. Sure, there's a difference between taking matters into your own hands and leaving your email security up to a third party, but the end result is no different: both were using private accounts to handle government business -- business that included the classified and sensitive information.

The main difference here is we know Pence's email account has been hacked. There were attempts made on Clinton's email server, but nothing out there suggests any of those attacks were successful. Considering Pence's earlier adamance about Clinton's careless email habits, it's probably time to invite the FBI to take a look at his careless handling of sensitive documents.

Emails released to IndyStar in response to a public records request show Pence communicated via his personal AOL account with top advisers on topics ranging from security gates at the governor’s residence to the state’s response to terror attacks across the globe. In one email, Pence’s top state homeland security adviser relayed an update from the FBI regarding the arrests of several men on federal terror-related charges.

Cyber-security experts say the emails raise concerns about whether such sensitive information was adequately protected from hackers, given that personal accounts like Pence's are typically less secure than government email accounts. In fact, Pence's personal account was hacked last summer.

Politicians routinely have to eat their words. They're rarely shy about casting the first (and several follow-up) stones, even while their own sins run dark and deep. But a guy who has an email investigation to at least partially thank for his new position should be following an own-words-based diet for the next several months. If nothing else, it might (MIGHT!) push him towards the occasional second thought before hitting "tweet."

If Pence were intellectually honest, he'd replace Clinton's name with his own in the statement he made to "Meet the Press" last year.

“What’s evident from all of the revelations over the last several weeks is that Hillary Clinton I operated in such a way to keep her my emails, and particularly her my interactions while Secretary of State with the Clinton Foundation governor of Indiana, out of the public reach, out of public accountability,” Pence said. “And with regard to classified information she I either knew or should have known that she I was placing classified information in a way that exposed it to being hacked and being made available in the public domain even to enemies of this country.”

Pence's former office is releasing a small subset of his AOL emails. The Indy Star has obtained around 30 of them, but the governor's office says it's withholding a majority of them because they're either (a) deliberative documents or (b) too damn sensitive to be released publicly.

If the governor's office won't release them, perhaps the hackers will. Sunlight is the best disinfectant, but sometimes an outsider kicking in the door and throwing open the blinds is the only way to achieve the transparency the public deserves.

Filed Under: classified info, emails, fbi, foia, hacked, hillary clinton, mike pence, private servers, public records

Pennsylvania Court Shrugs Off Microsoft Decision; Says Google Must Turn Over Emails Stored At Overseas Data Centers

from the redefining-'seizure' dept

Just south of the Second Circuit Court of Appeal's district, a Pennsylvania (3rd Circuit) federal judge has come to (nearly) the opposite conclusion on law enforcement's access to emails stored overseas. This case deals with two FBI SCA (Stored Communications Act) warrants seeking emails that Google says aren't stored in the United States. Google, however, also says the sought emails could be at any of its data storage sites -- which would include those in the US. It all depends on when it's asked to retrieve the communications.

And there's where this decision parts ways with the Second Circuit, which found that emails stored in an Irish data center weren't subject to US-issued warrants. The court explains [PDF] Google's process for handling user data, which is built for efficiency, rather than what's central to the FBI's demands: efficiency of retrieval in response to law enforcement requests.

Google stores user data in various locations, some of which are in the United States and some of which are in countries outside the United States. Some user files may be broken into component parts, and different parts of a single file may be stored in different locations (and, accordingly, different countries) at the same time. Google operates a state-of-the-art intelligent network that, with respect to some types of data, including some of the data at issue in this case, automatically moves data from one location on Google's network to another as frequently as needed to optimize for performance, reliability, and other efficiencies.

As a result, the country or countries in which specific user data, or components of that data, is located may change. It is possible that the network will change the location of data between the time when the legal process is sought and when it is served. As such, Google contends that it does not currently have the capability, for all of its services, to determine the location of the data and produce that data to a human user at any particular point in time.

Because of the way Google handles data, it theoretically could refuse every US law enforcement request for communications. (It could do the same to foreign requests as well.) This makes Google's case distinguishable from Microsoft's legal battle. Microsoft knew exactly where the stored communications were located. Google says the communications might be anywhere -- in one place upon receipt of a warrant and in another when retrieval efforts begin. As the court sees it, the Second Circuit's ruling would basically make Google completely immune to law enforcement requests.

[I]f the court were to adopt Google’s interpretation of the Microsoft decision and apply such a rationale to the case at bar, it would be impossible for the Government to obtain the sought-after user data through existing MLAT channels.

The "fix," according the Pennsylvania court, is to have Google round up the sought communications in the US, putting them within reach of the FBI's warrants.

In contrast, under this court’s interpretation, Google will gather the requested undisclosed data on its computers in California, copy the data in California, and send the data to law enforcement agents in the United States, who will then conduct their searches in the United States.

Of course, this means compelling Google to do something with its data that it doesn't normally do, which would make it a seizure. And since the data sought is constantly in transit, the court is giving the government the power to step in and alter Google's data-handling. This would obviously be a seizure of data potentially stored (at least temporarily) in foreign countries. To get around the Fourth Amendment concerns this raises -- not to mention the expansion of the US government's power to compel the production of data from foreign servers -- the court decides no seizure actually takes place until the government takes control of the data Google has been ordered to compile.

In contrast to the decision in Microsoft, this court holds that the disclosure by Google of the electronic data relevant to the warrants at issue here constitutes neither a "seizure" nor a "search" of the targets' data in a foreign country. This court agrees with the Second Circuit's reliance upon Fourth Amendment principles, but respectfully disagrees with the Second Circuit's analysis regarding the location of the seizure and the invasion of privacy.

[...]

Electronically transferring data from a server in a foreign country to Google's data center in California does not amount to a "seizure" because there is no meaningful interference with the account holder's possessory interest in the user data. Indeed, according to the Stipulation entered into by Google and the Government, Google regularly transfers user data from one data center to another without the customer's knowledge. Such transfers do not interfere with the customer's access or possessory interest in the user data. Even if the transfer interferes with the account owner's control over his information, this interference is de minimis and temporary.

This is a really weird -- and wrong -- interpretation of the word "seizure." While it's true the FBI won't actually have taken possession of the emails until after Google has gathered them in a California datacenter to make them more Fourth Amendment-compliant (or whatever), the fact that Google has to interrupt its normal flow of data at the government's request would appear to make that initial interruption a "seizure" -- de minimis or not.

In essence, the court is saying the Fourth Amendment doesn't apply to data in transit. The government can compel the collection of overseas data and have the Fourth Amendment applied to it after it's already been gathered and stored locally. The decision makes a mess of the Fourth Amendment cart-horse configuration, but figures this is more acceptable than informing the FBI that its warrants might be useless.

The better conclusion to reach would be the one the Second Circuit reached: if the concern is that the 30-year-old SCA limits law enforcement's ability to demand data from overseas data centers run by US companies, the solution lies with the entity that created it (Congress), rather than the courts. This decision will be appealed and it's safe to assume the Third Circuit Court of Appeals will arrive at the same conclusion.

Even if Congress doesn't "fix" the SCA to make US companies with foreign data centers more responsive to law enforcement demands, cases going forward may start applying the Rule 41 changes that went into effect at the beginning of this year, which greatly expand the jurisdictional reach of US court-issued warrants. As for Google, its system isn't built with law enforcement's needs in mind, nor should it be. It does what works best for it, which is what we expect from private companies. This ruling gives law enforcement a workaround for dealing with the SCA's limits, so some forum shopping should be expected until this decision is (hopefully) overturned.

Filed Under: 4th amendment, ecpa, emails, pennsylvania, stored communications act, subpoena, third circuit, warrant
Companies: google, microsoft

Chicago Mayor Promises To Turn Over Emails From His Private Accounts Following Courtroom Losses

from the getting-right-in-on-the-eighth-or-ninth-floor-of-the-inevitable dept

Not only is the use of private email accounts to route around public records requests a common practice, it's also an accepted practice. Politicians aren't going to sell out their own in the name of transparency, so there's likely as many private email accounts handling official business as there are government employees. Everyone from former New York City mayor Michael Bloomberg to Gen. Colin Powell has used private email accounts to handle government communications they'd rather not be made public.

The same goes for Chicago mayor Rahm Emanuel. For years, journalists and government transparency groups have been trying (and suing) to get the mayor to turn over city-related emails contained in his personal accounts. To date, the city of Chicago hasn't budged.

But we're living in a "new" era of Chicago-brand transparency -- the aftermath of the city's concerted cover-up of police recordings of the Laquan McDonald shooting. The mayor pledged the city would be more open and forthcoming in the future -- not a difficult promise to make considering there was nowhere to go but up.

Roughly a year after that announcement, one layer of opacity has been peeled back by the mayor's office. Given that it was prompted by multiple lawsuits and unsympathetic court rulings, it's probably best to hold any applause until something more proactive is witnessed.

As a result of a BGA [Better Government Association] investigation and legal action, The City of Chicago and Mayor Rahm Emanuel have agreed to release all of Emanuel's private emails related to city business—subject to any applicable legal exemptions—and institute a new policy that will ban city employees and officials from using their private email accounts to conduct city business.

The city's change in practices comes in response to Freedom of Information Act requests and lawsuits filed by the BGA, and separately by the Chicago Tribune, and follows more than a year of hard-fought litigation and rulings by two Cook County judges that public officials’ emails are not outside the scope of FOIA simply because they are on a private account.

If this clenched-teeth transparency sounds familiar, it's probably because Mayor Emanuel -- like the president he briefly worked for -- has promised unheard of levels of transparency…

Emanuel claimed from the start of his tenure at City Hall in 2011 that his leadership would be among the most transparent in the nation.

and delivered almost none of it.

But accessing public records at City Hall—especially documents about hot topics of those pertaining directly to the mayor himself—has often been met with delays, obfuscation or court battles.

And so it goes. This is an important victory for the public, moved along by court rulings stating pretty much the same thing Chicago's administrative branch is only now conceding: official business is official business, whether it's carried out on official email accounts or not. The new policy prompted by lawsuits and court losses orders city employees to push any work-related emails received on personal accounts to their city of Chicago accounts or face whatever form of discipline the city deems appropriate. The latter half of this sentence will dictate the success of the first half, so it's up to city employees to keep other city employees honest. Considering this is Chicago, birthplace of the mobbed-up politician, I expect it will be several more years before the city even begins to approach the lofty transparency goals its own mayor has shown no interest in attaining.

Filed Under: chicago, emails, foia, private emails, public records, rahm emanuel

Unsealed Clinton Email Warrant Asks Court To Maintain Secrecy Of Investigation James Comey Publicly Announced To Congress

from the in-all-things,-boilerplate dept

The FBI's search warrant for Anthony Weiner's laptop was unsealed and released yesterday. This isn't the warrant the FBI originally used to seize and search the laptop. That one was looking for evidence related to allegations Weiner sexted an underage girl.

This warrant is the second search warrant for the same laptop, related to the discovery of emails to and from Hillary Clinton on it. This discovery during an unrelated search prompted Comey to write a letter to Congress informing it that he was going to be diving back into the Clinton email investigation.

The second dive into emails stored on the laptop by former Clinton aide (and estranged spouse of Anthony Weiner) Huma Abedin resulted in the discovery of nothing the FBI hadn't already seen. Comey apologized for getting everyone hot and bothered by his shouting of "CLASSIFIED!" in a crowded electoral season, but believed his actions were justified because he feared this information would likely leak anyway.

Leaks did abound, but the emails found on the laptop were ones that had already been seen by the FBI during its earlier investigation. Since no charges are being brought against Clinton (or Abedin) for mishandling of classified information, there's likely going to be no Fourth Amendment challenges raised in regards to the evidence the FBI didn't find.

If for some reason there was, I'm sure the FBI would feel the "plain view" exception (or perhaps "inevitable discovery," although plain view is a more accurate description...) would apply to its discovery of possible evidence completely unrelated to the Weiner sexting investigation at hand. As the affidavit explains, the normal process of going through emails for the Weiner investigation resulted in the viewing of email header info pointing to Hillary Clinton's private email server.

Having "segregated" those emails, the FBI applied for a second warrant [PDF] to search the content of those communications for classified material. As we know now, nothing of interest was found. Still, there was only the minimum of probable cause to search the content of these stored emails: that Hillary Clinton's email address appeared in the header info. This small possibility the seized emails may have contained classified information was used to justify a second forensic imaging of the seized laptop.

What's completely ridiculous about the affidavit is the agent's request that the affidavit and warrant be sealed because of the "confidential nature" of the investigation. Never mind the fact that James Comey himself blew past other FBI officials' recommendations and outed the results of the first investigation in a public press conference. Then he did it again with his letter to Congress on October 28 -- two days BEFORE this FBI agent asked for the sealing of documents because the investigation was apparently too "sensitive" to be made public.

It could be the agent prepared this affidavit before Comey decided to go public with his announcement, but the signature and date of October 30th appear directly below this paragraph claiming this information needed to be withheld from the public. And the judge granted it, which is just as much of an absurdity. It's not as though no one was aware of Comey's announcement. It was literally in all the papers. But, hey, law enforcement loves boilerplate and, apparently, magistrates' eyes start glossing over by the time they get to affidavit signature pages, because no one thought this request might sound ridiculous given the circumstances surrounding it.

Filed Under: anthony weiner, doj, emails, fbi, hillary clinton, huma abedin, investigation, james comey, probable cause, secrecy, warrant