David Boies Accused Of Running Horrifying Spy Operation Against Harvey Weinstein's Accusers

from the and-reporters dept

David Boies is one of the highest profile lawyers in the country. I first became aware of him when he (as outside counsel) represented the Justice Department in the overreaching antitrust case against Microsoft in the 1990s. However, I think most people became aware of him when he represented Al Gore in Bush v. Gore. Since then, nearly every time he's popped up in Techdirt, it's been doing really, really sketchy things. He was the lawyer for SCO in that company's insane "set open source on fire" lawsuit against IBM over Linux. He represented Oracle in its ridiculous lawsuit against Google over whether APIs are covered by copyright*. He represented Sony Pictures after its email was hacked and threatened lots of journalists -- including us! -- for publishing stories based on those leaked emails (we told him "go pound sand.") And, honestly, until earlier this week, I thought the most egregious efforts by Boies had been his connection to Theranos, the disgraced medical devices company, where Boies wasn't just a lawyer for the company, but on the board, and participated in terrible and far-reaching attempts to punish whistleblowers at the company.

But, it turns out that Boies' activity in trying to stifle whistlebowers and reporters regarding Theranos and Sony Pictures were just the warm up act for a truly horrifying bit of business revealed by Ronan Farrow in the New Yorker this week. It was widely reported that Boies was a key player on Harvey Weinstein's legal team, responding to the claims of sexual harassment and assault, but the Farrow article shows just how deep the campaign went, with Boies allegedly orchestrating an "army of spies" to try to trick Weinstein's accusers and reporters working on the story to reveal what they knew. The whole article is incredible, but here's just a snippet, involving one of Weinstein's most outspoken victims, Rose McGowan:

In May, 2017, McGowan received an e-mail from a literary agency introducing her to a woman who identified herself as Diana Filip, the deputy head of sustainable and responsible investments at Reuben Capital Partners, a London-based wealth-management firm. Filip told McGowan that she was launching an initiative to combat discrimination against women in the workplace, and asked McGowan, a vocal women’s-rights advocate, to speak at a gala kickoff event later that year. Filip offered McGowan a fee of sixty thousand dollars. “I understand that we have a lot in common,” Filip wrote to McGowan before their first meeting, in May, at the Peninsula Hotel in Beverly Hills. Filip had a U.K. cell-phone number, and she spoke with what McGowan took to be a German accent. Over the following months, the two women met at least three more times at hotel bars in Los Angeles and New York and other locations. “I took her to the Venice boardwalk and we had ice cream while we strolled,” McGowan told me, adding that Filip was “very kind.” The two talked at length about issues relating to women’s empowerment. Filip also repeatedly told McGowan that she wanted to make a significant investment in McGowan’s production company.

Filip was persistent. In one e-mail, she suggested meeting in Los Angeles and then, when McGowan said she would be in New York, Filip said she could meet there just as easily. She also began pressing McGowan for information. In a conversation in July, McGowan revealed to Filip that she had spoken to me as part of my reporting on Weinstein. A week later, I received an e-mail from Filip asking for a meeting and suggesting that I join her campaign to end professional discrimination against women. “I am very impressed with your work as a male advocate for gender equality, and believe that you would make an invaluable addition to our activities,” she wrote, using her wealth-management firm’s e-mail address. Unsure of who she was, I did not respond.

Filip continued to meet with McGowan. In one meeting in September, Filip was joined by another Black Cube operative, who used the name Paul and claimed to be a colleague at Reuben Capital Partners. The goal, according to two sources with knowledge of the effort, was to pass McGowan to another operative to extract more information. On October 10th, the day The New Yorker published my story about Weinstein, Filip reached out to McGowan in an e-mail. “Hi Love,” she wrote. “How are you feeling? . . . Just wanted to tell you how brave I think you are.” She signed off with an “xx.” Filip e-mailed McGowan as recently as October 23rd.

In fact, “Diana Filip” was an alias for a former officer in the Israeli Defense Forces who originally hailed from Eastern Europe and was working for Black Cube, according to three individuals with knowledge of the situation. When I sent McGowan photos of the Black Cube agent, she recognized her instantly. “Oh my God,” she wrote back. “Reuben Capital. Diana Filip. No fucking way.”

And, yes, apparently it was Boies who signed the contract that made all this possible:

Boies personally signed the contract directing Black Cube to attempt to uncover information that would stop the publication of a Times story about Weinstein’s abuses....

Oh, and the latter part of that sentence is fairly stunning as well:

... while his firm was also representing the Times, including in a libel case.

That seems like a pretty massive conflict of interest, which Boies denied:

Boies confirmed that his firm contracted with and paid two of the agencies and that investigators from one of them sent him reports, which were then passed on to Weinstein. He said that he did not select the firms or direct the investigators’ work. He also denied that the work regarding the Times story represented a conflict of interest.

You know who did think it was a pretty bad conflict of interest? The NY Times. Boy, was the NY Times pissed off:

We learned today that the law firm of Boies Schiller and Flexner secretly worked to stop our reporting on Harvey Weinstein at the same time as the firm's lawyers were representing us in other matters. We consider this intolerable conduct, a grave betrayal of trust, and a breach of the basic professional standards that all lawyers are required to observe. It is inexcusable and we will be pursuing appropriate remedies.

And, by Tuesday night the Times had fired Boies:

Like other large firms, the Boies firm asked us to waive certain conflicts in advance. We understood that to mean that it could openly bring actions that may be adverse to our interests and we would be free to terminate our relationship with the firm if we felt the new representation posed a serious conflict. We never contemplated that the law firm would contract with an intelligence firm to conduct a secret spying operation aimed at our reporting and our reporters. Such an operation is reprehensible, and the Boies firm must have known that its existence would have been material in our decision whether to continue using the firm. Whatever legalistic arguments and justifications can be made, we should have been treated better by a firm that we trusted.

Boies is now trying to salvage his reputation by apologizing:

“I regret having done this. It was a mistake to contract with, and pay on behalf of a client, investigators who we did not select and did not control. I would never knowingly participate in an effort to intimidate or silence women or anyone else, including the conduct described in the New Yorker article. That is not who I am.”

Let's be clear though: this is absolute bullshit by David Boies. It is who he is. Again, he's threatened plenty of media properties in the past -- including us -- with bogus threats attempting to stifle a free press and to intimidate reporters into not covering his big name clients. He did it with Theranos. He did it with Sony Pictures. And it certainly appears that he did much more than that for Harvey Weinstein under significantly more shocking circumstances.

So isn't it about time that people took Boies down off the pedestal he's been on for many years? He may be famous, but he's been doing horrible things for the rich and powerful, often attacking and threatening a free press for years. Hiring spies for Harvey Weinstein is just the latest -- and perhaps most horrific -- example.

* Boies "representation" of Oracle in that case resulted in what remains a truly classic benchslap from Judge William Alsup for Boies making downright silly claims about programming.

JUDGE ALSUP: All right. I have -- I was not good -- I couldn't have told you the first thing about Java before this trial. But, I have done and still do a lot of programming myself in other languages. I have written blocks of code like rangeCheck a hundred times or more. I could do it. You could do it. It is so simple. The idea that somebody copied that in order to get to market faster, when it would be just as fast to write it out, it was an accident that that thing got in there. There was no way that you could say that that was speeding them along to the marketplace. That is not a good argument.

MR. BOIES: Your Honor --

JUDGE ALSUP: You're one of the best lawyers in America. How can you even make that argument? You know, maybe the answer is because you are so good it sounds legit. But it is not legit. That is not a good argument.

MR. BOIES: Your Honor, let me approach it this way, first, okay. I want to come back to rangeCheck. All right.

JUDGE ALSUP: RangeCheck. All it does is it makes sure that the numbers you're inputting are within a range. And if they're not, they give it some kind of exceptional treatment. It is so -- that witness, when he said a high school student would do this, is absolutely right.

MR. BOIES: He didn't say a high school student would do it in an hour, all right.

JUDGE ALSUP: Less than -- in five minutes, Mr. Boies.

MR. BOIES: Well, Your Honor --

JUDGE ALSUP: If you know the language. Once you know the language, it is a five-minute proposition.

And, on an additional note, if you haven't yet, you should read Sarah Jeong's absolutely delightful profile of Judge Alsup and his coding hobby.

Filed Under: david boies, free press, harvey weinstein, intimidating the press, reporters, spying, squelching stories
Companies: black cube, ny times

Trump Hopes To Use AT&T Time Warner Merger As 'Leverage' Over CNN

from the the-peanut-butter-and-jelly-of-bullshit dept

On the campaign trail, you might recall that Donald Trump threatened to block AT&T's $89 billion acquisition of Time Warner, insisting that the deal was "an example of the power structure" he was fighting, because it would deliver "too much concentration of power in the hands of too few." Granted he subsequently appointed an FCC chairman in Ajit Pai who's little more than a rubber stamp for companies like AT&T, and nominated an antitrust boss already on record stating he has no real problems with the merger, leading most analysts to believe the deal will be approved anyway.

There are of course a number of legitimate reasons to block the deal, including concerns that AT&T will make licensing access to necessary programming more difficult than ever for streaming video competitors. Or the fact that AT&T's using its dominance in wireless to give Time Warner content an unfair advantage over competitors via usage caps and overage fees (aka "zero rating"). It would be foolish to think a company with such a rich history of anti-competitive and anti-consumer behavior wouldn't use this greater size and leverage anti-competitively.

But these are complicated nuances it's not-terribly-likely the current President actually understands. Instead, his focus in recent months has been the fact that he doesn't like Time Warner-owned CNN's critical coverage of his administration, and, according to the New York Times, hopes to use the deal as "leverage" to force CNN to soften its critcism of the President as part of his broader assault on the media:

"White House advisers have discussed a potential point of leverage over their adversary, a senior administration official said: a pending merger between CNN’s parent company, Time Warner, and AT&T. Mr. Trump’s Justice Department will decide whether to approve the merger, and while analysts say there is little to stop the deal from moving forward, the president’s animus toward CNN remains a wild card."

Other news outlets noted that the Trump administration is also contemplating demanding the ouster of current CNN boss Jeff Zucker in exchange for approving the deal. The news was quick to result in letters to the DOJ from several Senators who claimed Trump was "interfering" in an approval process that should be left up to regulators and the DOJ to decide:

"Any political interference in antitrust enforcement is unacceptable," Minnesota Sen. Amy Klobuchar wrote in a letter to Attorney General Jeff Sessions. "Even more concerning, in this instance, is that it appears that some advisers to the President may believe that it is appropriate for the government to use its law enforcement authority to alter or censor the press. Such an action would violate the First Amendment."

If you're at all familiar with the ethical behavior over at AT&T (like the times it ripped off a program for the hearing impaired or made bills harder to understand to help criminals scam its own customers), it would certainly be in character for AT&T to agree to trample the editorial firewall between itself and CNN to get the deal done -- it just wouldn't be stupid enough to put any such agreement in writing. As the net neutrality fight makes clear, telecom giants aren't particularly concerned about the whole free speech thing (check out Verizon's first foray into tech content, for example).

AT&T's also a world-class expert at making utterly bogus claims when it comes to its latest megamergers, consistently claiming such deals will lower prices, expand broadband coverage and create oceans of new jobs (telecom megamerger history makes it abundantly clear the exact opposite almost always occurs). Given some similar expertise over at the Trump camp, there's an incredible opportunity for some amazing bullshit here; an opportunity Trump likely won't want to waste by continuing what's become an arguably unhealthy fixation on CNN.

The likely outcome is that we'll get to have our rotten cake and eat it too: a torrent of bogus job and broadband expansion promises the likes of which we've never seen before -- and a CNN left bridled by a meddling new corporate parent focused exclusively on currying favor in the Trump administration to anti-competitive benefit. Just think of the incredible potential for synergies...and bullshit.

Filed Under: acquisitions, bullying, donald trump, first amendment, free press, freedom of expression, leverage, mergers
Companies: at&t, cnn, time warner

Reporter Indicted For Covering Trump Inauguration Protests

from the free-press? dept

Back in January, we noted that six journalists had been arrested while covering protests in Washingto DC on inauguration day. It is troubling enough that this kind of thing has been happening with increasing frequency in the past few years (a bunch of journalists were arrested while covering the Ferguson protests, for example). And as bad (and unconstitutional) as it is to arrest these journalists, usually any charges are soon dropped. However, it appears that at least one of the reporters arrested for covering inauguration protests, Aaron Cantu of the Santa Fe Reporter, has now been indicted with prosecutors accusing him of participating in violence related to the protests:

Aaron Cantú, a staff writer at the Santa Fe Reporter, has been indicted by a federal grand jury on charges that he participated in a riot while working as a journalist during protests in Washington, DC on Inauguration Day.

Cantú faces eight felony counts—including inciting a riot, rioting, conspiracy to riot and five counts of destruction of property. The grand jury handed up the indictment last week.

From the news report, it's not clear they actually have any evidence that Cantu was engaged in any of the destruction. Indeed, it sounds like he was over with other journalists observing the events (and wiping pepper spray from his eyes):

Cantú was not named specifically by prosecutors as the cause of any of the destruction, as some defendants were. Instead, the indictment named him as being present while the damage happened. The arrests have been criticized by the American Civil Liberties Union, other civil rights groups and newspapers as overly broad and lacking hard evidence.

Video from the conservative media group The Rebel shows glimpses of Cantú off to the side of the protests with other journalists, washing what appears to be pepper spray from his eyes. He’s standing next to a conservative journalist as she narrates the scene.

The fact that he isn't named specifically, and that the complaint is just that he was "present" is crazy. Of course he was present. He was doing his job, reporting on protests. Assuming this goes forward, Cantu should have very strong First Amendment defenses, and might consider suing the government for civil liberties violations.

While I'm hardly sympathetic to arguments by law enforcement when they round up large groups of people at protests that it's difficult for them to determine who's really a journalist and who is not, at least you can sort of understand how that might happen -- even if you disapprove. But once the fog of the moment has passed it is absolutely bizarre for prosecutors to push forward with an indictment against someone who is clearly there as press.

Filed Under: aaron cantu, donald trump, first amendment, free press, free speech, inauguration, indictment, protests

Snowden Explains How The Espionage Act Unfairly Stacks The Deck Against Reality Winner

from the snowden-supports-reality dept

There's been plenty of talk about the rapid arrest of Reality Winner (and, yes, people are still baffled that a real person is named this) and the fact that the tracking dots on printers may have helped track her down (along with the fact that she was one of only a few people who had recently touched that document). Fewer seem to have focused on the details in the leak, about how the Russians quite likely hacked e-voting vendors to a much deeper level than suspected. That seems like really important information for the public to understand -- especially for those of us who have been screaming from the mountaintops for years about the lack of security in e-voting machines.

In short: this certainly feels like a completely justifiable leak to better inform the public of something important, and done in a way that is unlikely to harm any national security efforts or assets. It seems to fit right in with the whistleblowing tradition of other leakers. And, yet, Reality Winner is charged under the Espionage Act. And, as we've also discussed for years, the Espionage Act explicitly blocks people from using the public interest or whistleblowing as a defense. Such information is simply inadmissable.

As Ed Snowden has now pointed out in response to the charges against Winner, this remains a huge threat to a free press.

Winner is accused of serving as a journalistic source for a leading American news outlet about a matter of critical public importance. For this act, she has been charged with violating the Espionage Act—a World War I era law meant for spies—which explicitly forbids the jury from hearing why the defendant acted, and bars them from deciding whether the outcome was to the public's benefit. This often-condemned law provides no space to distinguish the extraordinary disclosure of inappropriately classified information in the public interest—whistleblowing—from the malicious disclosure of secrets to foreign governments by those motivated by a specific intent to harm to their countrymen.

The prosecution of any journalistic source without due consideration by the jury as to the harm or benefit of the journalistic activity is a fundamental threat to the free press. As long as a law like this remains on the books in a country that values fair trials, it must be resisted.

Indeed. There are many arguments that this aspect of the Espionage Act is unconstitutional -- but that hasn't been tested in court, and it may never get tested in court. Even if it does, you never know how judges might rule. But it does seem quite problematic that a law that is explicitly designed to deal with literal spies sending information privately to our enemies is now regularly applied against whistleblowers releasing information for the public's benefit.

Filed Under: ed snowden, espionage act, free press, free speech, leakers, reality winner, whistleblowers

Trump Allegedly Wants FBI To Look Into Locking Up Journalists Who Publish Leaks

from the because-of-course-that-would-be-his-solution dept

It's been another busy week for our president. Following on the heels of his revelation that he fired FBI Director James Comey over the ongoing Russian ties investigation (and following on the heels of Trump's tweeted threat about secret recordings of conversations with Comey), the FBI's acting director said the investigation is still ongoing, a special counsel was picked to oversee the investigation, and people close to Comey hinted the FBI might have some recordings of its own that undercut the president's narrative.

President Trump asked the F.B.I. director, James B. Comey, to shut down the federal investigation into Mr. Trump’s former national security adviser, Michael T. Flynn, in an Oval Office meeting in February, according to a memo Mr. Comey wrote shortly after the meeting.

“I hope you can let this go,” the president told Mr. Comey, according to the memo.

It's a record, of sorts, if not an actual recording. And it's done the way the FBI prefers to memorialize things (including testimony and "custodial interviews") -- on paper, rather than with other, less-biased recording devices. And, again, this is hearsay on top of hearsay: unnamed people claiming they read a piece of paper purporting to be a record of a conversation between Comey and the president. Grains of salt and all that, and despite what many are claiming all over the internet, really not a strong indicator of actual instruction, which could be an impeachable offense.

Mr. Comey shared the existence of the memo with senior F.B.I. officials and close associates. The New York Times has not viewed a copy of the memo, which is unclassified, but one of Mr. Comey’s associates read parts of it to a Times reporter.

Buried way, way down in the New York Times story is some more hearsay. This time it's Trump allegedly suggesting something should be done about that pesky press he's always complaining about. But, like the scenario above, it still sounds very much like something President Trump would say in a personal meeting he thought wouldn't be turned into an office memo.

Alone in the Oval Office, Mr. Trump began the discussion by condemning leaks to the news media, saying that Mr. Comey should consider putting reporters in prison for publishing classified information, according to one of Mr. Comey’s associates.

James Comey was no fan of the press, but he did at least defend journalists (sort of) at a recent hearing. He doesn't like seeing leaks published, but pointed out to legislators more interested in shooting the messenger that the person leaking the documents is the criminal, not the press, at least in the eyes of the DOJ.

But the DOJ is no longer the DOJ, so to speak. It's now being run by someone who wants to turn back the clock to the mid-1980s and start the drug war all over again. It's apparently engaged in twisting the law into a Wikileaks-prosecuting pretzel, despite Comey's assurances about messengers not being shot. And the administration has made it clear it's in the business of hunting down leakers, perhaps with the goal of unseating President Obama at the top of the "most whistleblowers prosecuted" list.

At this point, it's all just secondhand (Oval) office chatter. But considering the animosity Trump has shown towards the press and free speech in general, it's worth noting. And it always seems like every Trump denial or assertion has been followed by a leaked document to the contrary, so I'd be surprised if Comey's memo isn't made public within the next few days -- either by being leaked to journalists or presented at the hearings Comey has been asked to attend. This administration's contempt and hatred for the press has been undisguised. Donald Trump may be unable to change the Constitution, but that doesn't mean he and his handpicked agency heads won't spend the next few years making journalists' lives miserable.

Filed Under: donald trump, fbi, free press, free speech, james comey, journalists, leaks

Latest Attack On A Free Press: Reporter Arrested For Asking Questions To Trump Administration Officials

from the um-what? dept

Another day, another attack on a free press. The latest: a long-time reporter, Daniel Heyman, of the Public News Service in West Virginia was arrested for asking questions of Trump administration officials. Heyman yelled some questions to Health & Human Services Director Tom Price along with White House senior advisor Kellyanne Conway:

Daniel Ralph Heyman, 54, with the Public News Service of West Virginia, was freed on $5,000 bond Tuesday night on a charge of "willful disruption of government processes," according to a criminal complaint.

“The above defendant was aggressively breaching the secret service agents to the point where the agents were forced to remove him a couple of times from the area walking up the hallway in the main building of the Capitol,” the complaint states. It adds Heyman caused a disturbance by “yelling questions at Ms. Conway and Secretary Price.”

Whether you like it or not, the press is kind of supposed to ask questions of elected officials. That's their job. And, sure, some will argue that the complaint says that he was "aggressively breaching the secret service agents," but others on the scene indicated nothing beyond ordinary questioning happened:

Valerie Woody, who was there as outreach coordinator for the West Virginia Citizen Action Group, said Price's group was moving quickly down a hallway and Heyman was racing after them.

"I saw nothing in his behavior, I heard nothing that indicated any kind of aggressive behavior or anything like that," she told Public News Service. "Just simple, you know, trying to get somebody's attention and ask them a question. It seems to me there was no violation of anyone's space, or physicality, other than the arrest itself."

And, making matters worse, rather than admitting to over-aggressive enforcement, Price is cheering on the arrest:

Secretary of Health and Human Services Tom Price on Wednesday commended police in West Virginia for “doing what they thought was appropriate” in arresting a journalist who shouted questions at him, but added that it wasn’t his call to say whether they took the proper measures.

Price said the reporter confronted him while he was walking down a hallway. “That gentleman was not in a press conference,” he said.

I'm curious if Price (or anyone else, for that matter) could point to where in the First Amendment there's a rule that says the press is only allowed to ask questions "at a press conference." That's not how it works. There's also this:

Asked Wednesday by STAT whether he thought Heyman should have been arrested, Price said: “That’s not my decision to make.”

Well, that's only partially true. Obviously, the local law enforcement gets to make that decision, but there's nothing stopping a competent public official from telling law enforcement to knock it off and to answer a few basic questions from a reporter.

In an era where we're hearing more and more about both attacks on a free press, as well as the need for a stronger press, these kinds of shenanigans should not be allowed. In the past, when we've covered police arresting reporters, the courts have come out repeatedly in favor of the reporters (that whole First Amendment thing still matters). But that's of little use in the moment when police are dragging reporters off to jail for shouting questions outside a press conference.

Filed Under: 1st amendment, arrested, asking questions, daniel heyman, free press, free speech, kellyanne conways, press conference, tom price, west virginia