Senator Wyden Tells The DOJ It Needs To Stop Going After Journalists During Leak Investigations

from the if-they-aren't-a-target,-don't-target-them dept

Earlier this month, it was revealed the DOJ -- while headed by Bill Barr and an extraordinarily leaky White House -- decided it would be cool and constitutional to demand journalists' phone and email records while supposedly investigating leaks pertaining to Trump's first impeachment.

The DOJ apparently did manage to get the phone records. For whatever reason, it never bothered to collect the email metadata, despite having obtained a court order to do so. Nearly four years after this occurred, the Washington Post journalists were finally notified about the government's interest in their communications.

The Justice Department's statement was less than satisfactory. It claimed that this sort of First Amendment-troubling activity was "rare" and that it followed all of its internal guidelines when targeting journalists' communications. It also claimed it was ok because the journalists weren't the target of the investigation. All the DOJ wanted were their sources.

That's not ok no matter what internal guidelines are followed. If the DOJ has a leak to investigate, it needs to confine itself to the end doing the leaking, not the recipients of the leaks. Just because it might be easier for investigators to work their way backwards from journalists' communications to identify the source of leaks doesn't make it acceptable. The ends don't justify the means -- not when the means wander across the constitutional lines.

Now the DOJ has (yet again) angered Senator Ron Wyden. Wyden has sent a letter [PDF] to Attorney General Merrick Garland, demanding he revamp the internal rules to make this sort of thing far less likely to reoccur. Wyden is also asking for full reports on any surveillance of journalists the DOJ engaged in over the last couple of years.

As Wyden points out, using subpoenas and court orders to sniff out journalists' sources may be less disruptive than subjecting them to the justice system, but the end result is the same breach of trust and Constitutional protections.

In years past, the government would often attempt to force journalists to reveal their sources, by dragging them into court, where many chose to spend time in jail for contempt of court, rather than violate their oath to keep their sources' identities hidden. Now that most Americans carry always-on, always-recording smartphones, the government prefers to go to telecommunications companies, hoping that records of calls and texts might reveal the source. While certainly more convenient for the government, using subpoenas and surveillance orders to pry into a journalist‘ communications history is no less invasive and destructive than forcing a journalist to reveal their source.

From there, Wyden goes on to note he's working to introduce stronger protections for journalists. And with that in mind, he asks the new Attorney General to start repairing some of the damage done by the previous administration.

[T]he Biden Administration has the opportunity to voluntarily leave behind the thuggish and Orwellian abuses of power of the last administration, and stand up as a world leader for press freedoms. [...] Simply put, the government should not collect journalists' communications records unless it's investigating them for a crime or as part of an investigation into foreign espionage, in which case it should get a warrant.

That's far more restrictive than the DOJ's current standards, which seem pretty low for something with the word "justice" in it that operates in a nation that has held itself out to be the standard-bearer for personal freedoms. Hopefully, AG Garland will decide it's time for the DOJ to respect the rights all government employees swear to uphold.

Filed Under: 1st amendment, 4th amendment, doj, intimidation, journalists, ron wyden

DOJ Dropped Its Subpoena For NunesAlt Twitter Account One Week After Twitter Called Bullshit On Its Demands

from the so-long-and-thanks-for-all-the-wasted-tax-dollars-and-goodwill dept

Well, that was fast. I mean, this all actually happened a few months ago but the unsealing process makes this all seem very sudden.

Yesterday, it was revealed that the Trump DOJ sent a subpoena to Twitter demanding personal information related to the NunesAlt account -- one of several Rep. Devin Nunes has unsuccessfully tried to sue for defamation. It seemed very strange that the DOJ would be involved, but Nunes developed a close relationship with Trump over the past four years and it certainly appeared that this was some prime White House backscratching.

The subpoena was delivered to Twitter last November. On March 10, Twitter filed its motion to quash, noting Nunes' multiple attempts to sue satirical Twitter accounts, his lack of success in doing so, and his apparent attempts to use federal law enforcement resources to engage in discovery for him.

It also noted the DOJ's subpoena made no mention as to why Twitter should turn over this information. It wasn't until Twitter called the AUSA who signed the subpoena that it was provided answers. The answers were incomplete. The DOJ claimed it was part of an investigation into threats allegedly made by the account. But the DOJ refused to show Twitter the alleged threats, much less answer any of its other questions.

A week later (but only one day later for us, thanks to a gag order being tossed into the spacetime continuum), the DOJ dropped its request [PDF] for this Twitter users' info. As was the case with the subpoena sent to Twitter, there's not a whole lot of information in the DOJ's withdrawal of its information demand.

The United States of America, by and through its undersigned counsel, respectfully submits under seal this memorandum in opposition to Twitter, Inc.’s motion to quash grand jury subpoena and to vacate non-disclosure order.

On March 17, 2021, counsel for the United States informed counsel for Twitter, Inc. that the grand jury subpoena at issue is withdrawn. The term of the nondisclosure order has ended. As there is no dispute between the parties, Twitter, Inc.’s motion should be denied as moot.

Given this swift dismissal of its demand for info -- one supposedly tied to a super-serious investigation into "threatening communications in interstate commerce" (a complicated way of saying the internet was involved) -- it's difficult to believe this was anything other than a fishing expedition performed on behalf of Devin Nunes, who has had zero success talking courts into compelling the unmasking of his critics. If the DOJ really had anything worth investigating, it wouldn't have abandoned its efforts at the first sign of resistance.

And we can't let this whole thing pass by without noting how gag orders disrupt the justice system and keep the public from learning what's being done with their tax dollars. Finding out about something like this six months after it was initiated and two months after the DOJ called it quits is ridiculous. The only thing protected here was the DOJ's shoddy reputation as a mere extension of President Trump's will while he and Bill Barr were still in control. That the DOJ refused to show Twitter the alleged threats strongly suggests it was attempting to turn heated (but protected) speech into a criminal act to help Devin Nunes out with his defamation lawsuits.

Filed Under: devin nunes, doj, intimidation, nunesalt, satire, subpoena
Companies: twitter

DOJ Sent A Grand Jury Subpoena To Twitter Demanding The Unmasking Of A Twitter User Being Sued By Devin Nunes

from the lots-of-wtf-going-on-here dept

For the past couple of years, Devin Nunes has been suing Twitter users over obviously satirical accounts that use his name, the most famous of which is "Devin Nunes' Cow." He has yet to succeed, but he has managed to clutter the courts with a bunch of vexatious litigation that, so far, has only proved Devin's skin is mighty thin and that he should definitely make better choices when it comes to choosing legal representation.

I suppose if Nunes wants to blow money on lawsuits that are doomed to fail, that's his business. Unfortunately, the victims of his bullshit lawsuits are having their time and money sucked away by a man so apparently powerless he cannot handle criticism without getting the courts involved.

But there's a new wrinkle and some new dollars being spent. This latest development -- a few months delayed thanks to a gag order -- involves the expenditure of money contributed by a whole lot of non-parties: US taxpayers. One of the last things the Trump DOJ did before it became Biden's DOJ was send Twitter a grand jury subpoena demanding identifying information from one of the Twitter accounts being sued by Nunes. (h/t Kevin Poulsen)

Given Nunes was suing individuals in civil suits, it's hard to see how or why the Department of Justice got involved, much less why this is a grand jury issue. Sure, Nunes may have made wild allegations about RICO violations and illegal impersonation, but no one has made any credible allegations about actual criminal activity, much less federal crimes.

And yet, here we are, looking at the DOJ's (granted) request [PDF] to keep Twitter from talking about this subpoena (dated November 23, 2020) and Twitter's motion [PDF] to quash the ridiculous, First Amendment threatening demand for account information.

The only thing that can be confirmed about the DOJ's (apparently ongoing) investigation is that the government believes the NunesAlt account said something threatening to someone (presumably Nunes) at some point in time. Not that the DOJ bothered to explain any of this in its subpoena.

The Gag Order prohibits Twitter from “disclos[ing] the existence of the Subpoena to any other person (except attorneys for PROVIDER for the purpose of receiving legal advice) for a period of 90 days (commencing on the date of this Order)” because it finds “reasonable grounds to believe that such disclosure will result in flight from prosecution, destruction of or tampering with evidence, intimidation of potential witnesses, and serious jeopardy to the investigation.” Schottlaender Decl., Ex. B. The Gag Order does not describe the basis for this finding, and Twitter has not received any information from the government about the “reasonable grounds” upon which the Gag Order was based.

Twitter had to approach the DOJ to get clarification. It got some, but not much.

Twitter’s counsel asked whether the government could offer any information about its investigation that may alleviate Twitter’s concerns. Counsel for the government stated that he understood Twitter’s concerns and would attempt to learn more about the investigation and about what he could share with Twitter. Shortly thereafter, the government stated that it was investigating “potential violations of 18 U.S.C. Section 875(c) (threatening communications in interstate commerce).” Twitter asked whether the government could share the threatening communications at issue, or otherwise state whether those threats had been directed to Congressman Nunes. The government replied that it would not provide any additional information about its investigation.

That's the basis for the grand jury. And without more, it seems like a pretty specious use of federal resources. Plus, as Twitter points out in its motion to dump the subpoena, this seems to be more about making critics of Nunes feel threatened than about any threats Nunes (or someone else) received.

It appears to Twitter that the Subpoena may be related to Congressman Devin Nunes’s repeated efforts to unmask individuals behind parody accounts critical of him. His efforts to suppress critical speech are as well-publicized as they are unsuccessful. He recently sued Twitter, attempting to hold it liable for speech by the parody Twitter accounts @DevinCow, @DevinNunesMom, @fireDevinNunes, and @DevinGrapes, and asking the court in that case to order Twitter to disclose information identifying those accounts. Each of these accounts were engaged in anonymous political speech critical of Congressman Nunes. That suit was dismissed against Twitter in June 2020 because Twitter cannot be liable for information originating with a third-party user of its service, but it appears to still be an active lawsuit against the Twitter users @DevinCow and @DevinNunesMom. Shortly thereafter, Twitter received the Subpoena. Public Tweets posted by the Account indicate that it may be operated by the same user as @DevinNunesMom. Congressman Nunes’s attorney also sought third-party discovery from Twitter to unmask the @DevinCow account in an entirely unrelated case.

Given Congressman Nunes’s numerous attempts to unmask his anonymous critics on Twitter—described in detail herein—Twitter is concerned that this Subpoena is but another mechanism to attack its users’ First Amendment rights. Recent litigation also alleges that Congressman Nunes may be using the government to unmask his critics. See Declaration of Hayden Schottlaender (“Schottlaender Decl.”), Ex. D. Twitter respectfully asks the Court to determine whether the government has a “compelling interest” in obtaining the Account’s basic subscriber information, or, on the other hand, is endeavoring to unmask someone merely for engaging in speech critical of Congressman Nunes.

That's really what appears to be happening here. The DOJ decided to work on the behalf of Devin Nunes, using unproven claims of issued threats as the foundation for demands for personal info. Sure, it may just be a coincidence that the DOJ is targeting one of Nunes' critics (and lawsuit defendants), but it's asking a lot from everyone to believe this coincidence had nothing to do with the Congressman's tireless support of Donald Trump and the DOJ's own obeisance to Number 45 during Bill Barr's tenure as the Attorney General.

Twitter's concern is plausible: the DOJ was mobilized to target a critic of a powerful lawmaker over what is likely protected speech. The DOJ needs to act in utmost caution in cases like this. And maybe it did. But even if it's completely in the right, Nunes and his constant suing of critics make it difficult to see this as anything other than the federal government getting into the business of keeping Devin from having his feelings hurt.

Filed Under: 1st amendment, devin nunes, doj, donald trump, intimidation, parody, satire, subpoena, unmasking, william barr
Companies: twitter

Trump DOJ Investigated Internal Leaks By Obtaining Journalists' Phone Records

from the that's-not-how-this-is-supposed-to-be-done dept

Donald Trump liked to use the "Deep State" as a rhetorical punching bag. Whenever he stuck his foot in his mouth or found himself under investigation for abusing his powers, he claimed the "Deep State" just couldn't handle having such a strong truth-teller in the Oval Office. But he apparently liked the "Deep State" enough to allow it to go after his personal enemies, even as he portrayed himself as a warrior against the excesses of federal power.

Trump's primary enemy was the press. According to Trump, there was also a massive media conspiracy determined to oust him from power -- one that was headed by "failing" mass media figureheads like the New York Times and the Washington Post. The latter was often conflated with Amazon -- the apparent enemy of the United States Postal Service (until the USPS became an enemy by delivering mail-in votes). This wasn't just Twitter posturing. Apparently, Trump (and the agencies under his control) believed the newspaper was a threat the government should neutralize by mobilizing the "Deep State" powers he repeatedly criticized.

Documents obtained by the Washington Post show the DOJ directly targeting journalists' phone records in an apparent attempt to shield Trump from accusations of being BFFs with a foreign government's officials during its attempt to sway an American election.

The Trump Justice Department secretly obtained Washington Post journalists’ phone records and tried to obtain their email records over reporting they did in the early months of the Trump administration on Russia’s role in the 2016 election, according to government letters and officials.

In three separate letters dated May 3 and addressed to Post reporters Ellen Nakashima and Greg Miller, and former Post reporter Adam Entous, the Justice Department wrote they were “hereby notified that pursuant to legal process the United States Department of Justice received toll records associated with the following telephone numbers for the period from April 15, 2017 to July 31, 2017.” The letters listed work, home or cellphone numbers covering that three-and-a-half-month period.

The DOJ has rules for targeting journalists. It generally agrees that it shouldn't, but a lot of times it actually believes it should, despite the First Amendment implications. Journalists and their sources are granted a whole lot of Constitutional protection but sometimes the federal government prefers to serve its own interests. Sniffing out leakers and whistleblowers is one of those interests the government tends to elevate above Constitutional concerns.

Now that it's being called out for its unconstitutional bullshit, the DOJ is getting pretty defensive about its meddling in First Amendment affairs. According to the DOJ, this incursion was a serious thing it would only do when it's super-serious about something.

"While rare, the Department follows the established procedures within its media guidelines policy when seeking legal process to obtain telephone toll records and non-content email records from media members as part of a criminal investigation into unauthorized disclosure of classified information,” said Marc Raimondi, a spokesman for the Justice Department. “The targets of these investigations are not the news media recipients but rather those with access to the national defense information who provided it to the media and thus failed to protect it as lawfully required.”

Well, if it's an internal investigation, try to keep it internal. Nothing really justifies going after reporters because it's easier or more efficient than targeting government employees who might be well-trained in subterfuge. If an investigation can't be closed without using the First Amendment as a doormat, perhaps the investigation should be abandoned. There are more important things for the DOJ to do than seek out people who turned over information to journalists. There are plenty of people willing to turn things over to foreign adversaries and maybe the DOJ should consider limiting itself to investigating leaks that harm more than a president's reputation.

Filed Under: 1st amendment, 4th amendment, adam entous, doj, donald trump, ellen nakashima, greg miller, intimidation, journalism, surveillance
Companies: washington post

Lawsuit: Cops Trashed An Attorney's Home In Retaliation For Successfully Defending A Suspect Against Murder Charges

from the system-never-likes-being-beaten dept

An attorney in Virginia found out what happens when you make cops angry. According to Cathy Reynolds' lawsuit, the Roanoke PD targeted her for some extra attention after she successfully defended her stepson from murder charges.

Prosecutors really wanted Darreonta Reynolds for murder, but security camera footage from the convenience store where the shooting took place appeared to show Reynolds shooting Jean De Dieu Nkurunziza in self-defense when Nkurunziza came after him with a gun. The jury agreed with the defense's case, acquitting Reynolds after ninety minutes of deliberation.

This apparently angered someone somewhere in the Roanoke Police Department because this is what happened next. From the lawsuit [PDF]:

Just three days after D. Reynolds acquittal, Defendants targeted Ms. Reynolds for retaliation. Defendants broke down the front door of Ms. Reynolds‘ home after she had offered to let them in, "searched" Ms. Reynolds' home for an individual by destroying her personal possessions, including those entirely irrelevant to a search for a person and left Ms. Reynolds traumatized, knowing that she could be targeted by police for engaging in constitutionally protected activity.

There may be some open dispute about the motivation for these actions, but the actions themselves can't be denied. The raid drew a crowd, some of whom filmed the PD's violent entry into the unlocked house -- the same house Reynolds had left unlocked and invited the officers to search. It also attracted the attention of a local news crew.

The lawsuit fills out the details of the raid. And the narrative throws a considerable amount of shade at the participating officer with one impeccably worded paragraph.

Despite both screen door and storm door at the front entrance of Ms. Reynolds' home remaining unlocked, SWAT officers used an entry tool attached to the front of an armored vehicle to puncture the screen door and rip it free from Ms. Reynolds' home in its entirety.

In so doing, SWAT officers damaged the screen door beyond repair, heavily damaged the door frame surrounding the front entry, and tore vinyl siding from the exterior of Ms. Reynolds' newly remodeled home.

SWAT officers then entered Ms. Reynolds' home by turning the doorknob of the storm door which remained on Ms. Reynolds' home, still unlocked, and pushing the door open in the manner a door is designed to operate.

Nice.

But that wasn't the end of the destruction. Remember, officers were searching for a 17-year-old murder suspect, not an easily hidden amount of contraband.

During the search of Ms. Reynolds' home, SWAT officers opened and searched all the drawers in Ms. Reynolds' kitchen and detached Ms. Reynolds' appliances from the walls of her home.

SWAT officers flipped the mattresses off all the beds in Ms. Reynolds' home and tore all of the clothes from the closets in the bedroom.

SWAT officers tore the cushions off Ms. Reynolds' furniture and emptied the contents of open soda cans onto the floor.

What the fuck.

On top of that, Reynolds alleges the warrant affidavit was nothing but a bunch of lies stitched together carelessly to give the PD permission to destroy her house -- a warrant rendered unnecessary by Reynolds' consenting to a search hours earlier. The narrative in that affidavit involves an ATF officer, their CI, and the assumption that the most likely place for a wanted murderer to be hanging out would be at the house of an attorney who had just successfully defended someone from a murder charge.

Given the timing and the three hours of apparently gleeful destruction, this certainly looks retaliatory. And, of course, it will be portrayed by the PD as just regular old cop stuff completely unrelated to local prosecutors and PD detectives "losing" a murder case. The end result of these efforts can't be denied. Neither can the violent entry which was captured by citizens' cameras. All that's left is the defensive assertions of "reasonable" officers -- all of which felt tearing apart an attorney's house was the best way to locate a human being.

Filed Under: cathy reynolds, darreonta reynolds, intimidation, police, police brutality, roanoke, search warrant, swat teams, virginia

FBI Scores Itself Another Lawsuit For Using The No Fly List To Punish A Lebanese Man For Not Becoming An Informant

from the FBI's-carrot-still-mainly-just-laying-off-the-stick-for-a-bit dept

For years, the FBI has threatened brown people with a miserable existence unless they're willing to become informants. What should be illegal somehow isn't -- or at least hasn't generated enough courtroom precedent to force the FBI to knock it off.

The FBI routinely approaches Muslims and people traveling to and from countries the US government considers questionable and tries to intimidate them into ratting out their friends, family members, and colleagues. Whether or not there's actually any ratting out to do seems to be, at best, a secondary concern. The FBI has spent years using informants to radicalize people, which it then arrests the moment they become radicalized enough. The FBI's counterterrorism budget depends on a healthy stable of informants and so the pressure tactics continue unabated.

The stick deployed most often is placement on the "No Fly" list, which makes it impossible to travel around the country, much less overseas to visit family and friends. The other stick is abuse of the immigration process. Visas can be revoked, family members removed, and other unpleasantness inflicted should someone reject these very forward advances from FBI agents.

We're still waiting for the judicial hammer to come down. It looks like it may finally be on its way. A lawsuit filed in 2014 over these tactics was recently given the green light to proceed by the Supreme Court.

Another lawsuit has been filed against the FBI for its months of pressure tactics deployed against Ahmad Chebli, a Lebanese man who was first approached by the FBI in 2018, which utilized a local government agency to trick Chebli into having a "conversation" with them. From the lawsuit [PDF]:

The FBI’s initial contact with Mr. Chebli was deceptive. On August 21, 2018, Mr. Chebli received a call from an individual who identified himself as an employee of the Roseville, Michigan Building Department. The caller informed Mr. Chebli that a Roseville gas station that Mr. Chebli leased and helped to manage was in violation of city permit requirements and requested that Mr. Chebli come in to discuss the matter in person. Mr. Chebli was concerned about any such violation and wanted to clear it up.

On August 23, Mr. Chebli arrived at Roseville City Hall. He was led to a conference room where two men were waiting for him. They told Mr. Chebli that they wanted to talk to him and that he was free to leave whenever he wanted. The men then identified themselves as FBI agents. Mr. Chebli did not feel that he could voluntarily leave. The door to the conference room was closed during the entirety of the one and a half hour meeting. Mr. Chebli never heard from city officials about any city permit “violation,” and it never came up again after this meeting.

The agents asked Chebli to show them he was not recording the meeting. Once the agents were assured only their official version of this time-shares-but-for-terrorism pitch session would be the only version on record, they proceeded to threaten Chebli and accuse him of being a terrorist.

Chebli told the FBI agents he wasn't interested. He had a steady job, a good life with his family, and moral objections to befriending FBI targets just so they could get set up and arrested. That angered the agents, who baselessly accused him of being a "Hezbollah agent." They also told him lying to federal agents is a felony (which it is) and claimed they could make all of this trouble (they had instigated) "go away" if he would just work for the FBI.

Chebli again refused. The agents then stated Chebli and his family would be subjected to surveillance, an investigation would be opened, and that there was a good chance it might end in the arrest of Chebli and his wife. They also said refusing to work with the FBI would cause problems for his wife's immigration application. They also said they would issue a "blue notice" -- something that would be disseminated to other government agencies identifying Chebli as a suspected terrorist.

Since Chebli didn't want any of this to happen, he continued to meet with the FBI agents. But he continued to refuse to become an informant. Since he no longer felt his family was safe in the US, he sent them back to Lebanon. After they left the airport, the FBI called Chebli to let him know his wife had gone through security without any problems, which made it clear agents were engaging in the surveillance they had threatened.

After several more fruitless meetings, Chebli decided things might be better for him if he left the United States for a month. When he tried to return after failing to find a stable source of income in Lebanon, he finally understood why the agents were so willing to help him leave.

On November 24, 2018, Mr. Chebli attempted to fly back to the United States. When he arrived at the Beirut Rafic Hariri International Airport, he handed his passport to the check-in agent, and noticed an alert come up on the agent’s screen. The agent called a supervisor, who informed Mr. Chebli that she had received an email from the United States government indicating that he could not board the plane, and he needed to consult the U.S. Embassy. When Mr. Chebli sought more information about why he was being denied boarding, the supervisor repeated that he should contact the embassy.

After getting no useful answers from the FBI and the US Embassy, Chebli decided to contact the DHS. That's when he discovered what the FBI had done in retaliation for his refusal to cooperate.

On December 20, 2018, Mr. Chebli received confirmation from DHS TRIP that he was on the No Fly List. The DHS TRIP letter stated that Mr. Chebli could “request additional information about your placement on the No Fly List and have the opportunity to respond to any information provided if you believe that the above determination is in error.” The letter further stated that if Mr. Chebli wished to request additional information, he was required to contact DHS TRIP within 30 days.

Thanks to other lawsuits, the DHS now actually has some form of recourse for travelers on this list. But, like so many other things the government is forced to do by court decisions, the DHS wasn't all that interested in holding up its end of the agreement. It never provided Chebli with an answer about his No Fly status. The ACLU (which is representing Chebli) secured a waiver so he could fly back to the United State.

Almost two years later, Chebli tried to board a domestic flight. He was again informed he was on the No Fly list. He was subjected to multiple, lengthy searches and screenings. When he arrived back in Michigan, he was once again accosted by FBI agents.

Now fully aware of his rights and determined not to be coerced, Mr. Chebli answered the FBI agents’ questions about his travel but refused to respond to any other questions. The agents then asked Mr. Chebli who was taking care of his children. Mr. Chebli questioned why they were asking about his children. One of the FBI agents named a man Mr. Chebli did not know, and said, “You need to cooperate with us. He has two daughters similar in age to your kids, and they’re safe right now because he chose to cooperate with us.” The agents also asserted that they would denaturalize Mr. Chebli’s wife. Mr. Chebli knew they could not take this action because his wife was not yet a U.S. citizen, but he also knew that a decision on her naturalization application had been inexplicably delayed for months. Concerned about the FBI’s threats, Mr. Chebli asked if he was free to leave, and when he did not get a straight answer, he called his ACLU lawyer, who asked to speak with the FBI agents. At that point, the FBI agents told Mr. Chebli he could leave.

Chebli again tried to get some answers from the DHS about his No Fly status. He submitted his request in February 2021. As of the date of this filing (April 6), he still has yet to receive a response.

There's a long list of rights violations here. And none of this is going to change until the courts tell the DOJ the FBI cannot threaten and intimidate people to encourage them to become informants. Since these "meetings" are informal and unrecorded, the FBI can always argue it isn't doing this, even though there are dozens -- if not hundreds -- of people who've been subjected to the same coercive tactics described in this lawsuit. Applying pressure to create informants so the FBI can continue to rack up easy counterterrorism wins isn't making the country any safer. But it's definitely making the country worse.

Filed Under: ahmad chebli, fbi, informant, intimidation, no fly list, own plot, retaliation

Senator Elizabeth Warren Goes Over The Line; Threatens To Punish Amazon For 'Snotty Tweets'

from the that's-not-how-any-of-this-works dept

It's no secret that Elizabeth Warren thinks the big internet companies should be broken up. She's made that argument emphatically over the years. I'm not exactly clear what breaking them up actually accomplishes beyond punishing the companies, but as a Senator, she can certainly make the arguments for why it makes sense, or pass laws that impact how antitrust works.

However, what she cannot and should not do, is threaten to punish a company for its speech. And, yet, that's exactly what she did. Amazon tweeted at Warren after Warren said that Amazon exploits loopholes and tax havens, and that she was introducing a bill to make the company pay more taxes. In response, Amazon said in a short tweet thread:

You make the tax laws @SenWarren; we just follow them. If you don’t like the laws you’ve created, by all means, change them. Here are the facts: Amazon has paid billions of dollars in corporate taxes over the past few years alone. In 2020, we had another $1.7B in federal tax expense and that’s on top of the $18 billion we generated in sales taxes for states and localities in the U.S. Congress designed tax laws to encourage investment in the economy. So what have we done about that? $350B in investments since 2010 & 400K new US jobs last year alone. And while you’re working on changing the tax code, can we please raise the federal minimum wage to $15?

It's maybe not the most politically savvy way of doing that, but that's how Amazon chose to go about it. Warren responded thusly:

That is her saying:

I didn’t write the loopholes you exploit, @amazon – your armies of lawyers and lobbyists did. But you bet I’ll fight to make you pay your fair share. And fight your union-busting. And fight to break up Big Tech so you’re not powerful enough to heckle senators with snotty tweets.

Neither party comes out of this looking very good, frankly. It seems kinda silly for Amazon to get snarky about this. And Warren has every right to look into changing tax laws -- or to complain about lawyers/lobbyists seeking loopholes. That's her job.

But, even if you hate Amazon and love Elizabeth Warren her last sentence should greatly trouble you. It doesn't matter if Warren has lots of other good policy ideas regarding Amazon, or well documented reasons for breaking up the company. It doesn't matter that she was being snarky on Twitter in response to probably uncalled-for tweets from Amazon. At no point should a government official say that anyone should be punished for their speech. And that's what Warren has said by saying that she would "fight to break up Big Tech so you’re not powerful enough to heckle senators with snotty tweets."

Everyone should have the power to heckle Senators with snotty tweets. That's a core, fundamental principle of the 1st Amendment. Warren wipes away whatever goodwill she might have, and undermines her policy proposals and ideas when she attacks a private company for its speech. It no longer seems like a principled position. It no longer seems like a position based on what's best for the country. It now allows people to say she got upset over nasty tweets.

And, yes, that's even given everything else. Yes, she has plenty of other reasons to want to break up Amazon. Yes, this isn't a change in her position. Yes, she's being snarky on Twitter, and that's what Twitter is for. But none of that matters, just like it didn't matter when former President Donald Trump threatened companies for their speech, and his supporters said "aw, he's just joking" when people called him on that.

At no point is it appropriate for government officials to threaten to retaliate against speech, even jokingly.

It is an inherent threat and is blatant censorial intimidation. Amazon may not care, but lots of other companies are also watching this, and noting that when challenged, Warren threatens to attack companies for their speech and harm them to the point that they no longer feel comfortable speaking. That's a real problem. And courts have recognized this over the years. Even if you think what someone is saying is bad, government officials aren't supposed to intimidate them. That was the lesson in the Backpage v. Dart case a few years back:

With very limited exceptions, none applicable to this case, censorship—“an effort by administrative methods to prevent the dissemination of ideas or opinions thought dangerous or offensive,” Blue Canary Corp. v. City of Milwaukee, 251 F.3d 1121, 1123 (7th Cir. 2001), as distinct from punishing such dissemination (if it falls into one of the categories of punishable speech, such as defamation or threats) after it has occurred—is prohibited by the First Amendment as it has been understood by the courts. “Threatening penalties for future speech goes by the name of ‘prior restraint,’ and a prior restraint is the quintessential first-amendment violation.” Fairley v. Andrews, 578 F.3d 518, 525 (7th Cir. 2009). The Supreme Court, in enjoining a state commission from sending threatening letters to distributors of books that the commission deemed obscene, found that the “notices, phrased virtually as orders, reasonably understood to be such by the distributor, invariably followed up by police visitations, in fact stopped the circulation of the listed publications.” Bantam Books, Inc. v. Sullivan, supra, 372 U.S. at 68. The court held the state’s “system of informal censorship” unconstitutional, pointing out that “though the Commission is limited to informal sanctions—the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation—the record amply demonstrates that the Commission deliberately set about to achieve the suppression of publications deemed ‘objectionable’ and succeeded in its aim.” Id. at 67. The distributor of the plaintiffs’ books, corresponding to the credit card companies in this case, received first from the Commission a written request for ”cooperation” and then “follow up” visits from police, corresponding to the follow-up calls promised in Sheriff Dart’s letter. Id. at 63, 68. The distributor bowed to the Commission’s demand “rather than face the possibility of some sort of a court action against ourselves, as well as the people that we supply.”

In other words, even if "informal," the mere threat of speech suppression is intimidation and when done by a government official is a violation of the 1st Amendment. Elizabeth Warren should apologize.

Incredibly, when I tweeted this argument out this morning, many people got very angry with me. They mostly seemed to come from people who like Warren and dislike Amazon. And that's fine. You can like Warren and dislike Amazon. You can even agree with Warren's policy proposals regarding antitrust. But no one should accept it as okay when a Senator directly says that she wants to break up a company to the point that they can no longer tweet snarky tweets at a Senator. That is intimidation and it is an unconstitutional attack on speech.

Warren has great power at her disposal, and she is going to try to use that on Amazon. If so, she should defend that on the merits, not even hint (or even joke) about the idea that it may have been due to snarky, but protected, speech.

And that's true, even with the additional context of the big angry fight over unionization in an Amazon warehouse, or other mishaps with Amazon's snarky ill-targeted tweets -- such as telling Rep. Mark Pocan that its employees have not had to pee in bottles, a charge that Amazon's social media person mocked:

For many, many, many reasons this was a poorly thought out tweet, not the least of which was that it presented a wide open opportunity for the media to point out not only that Amazon workers have, in fact, at times needed to pee in bottles, but that there are Amazon memos detailing this.

Amazon may be deserving of mockery or contempt for its tweets. But the 1st Amendment is pretty clear that it should not face legal consequences from them -- and Warren should never have done so, even if she was just being snarky back. If she doesn't like being heckled, she has every right to leave her government job. Other than that, it is the public's right -- and often civic duty -- to heckle government officials even in snarky ways.

Filed Under: 1st amendment, antitrust, elizabeth warren, intimidation, snotty tweets
Companies: amazon

Trump Appointee Who Wanted To Turn Voice Of America Into Breitbart Spent Millions Of Taxpayer Dollars Investigating His Own Staff

from the holy-shit dept

Remember Michael Pack? That's the Steve Bannon protégé who Trump appointed last year to head the US Agency for Global Media. USAGM is the organization that oversees Voice of America, Radio Free Europe/Radio Liberty, Radio Free Asia, Middle East Broadcasting and the Open Technology Fund. It was an open secret that Pack was appointed to turn those widely respected, independent, news organizations into pure Breitbart-style propaganda outfits. He wasted little time causing a huge fucking mess, firing a ton of people in a manner so upsetting that even Republican Senators were concerned. It also turned out that many of the people he fired... he legally had no right to fire.

In the fall, things got even more ridiculous as it came out that Pack had been investigating VOA journalists to see if they were "anti-Trump" and then moved to get more power to directly dictate how VOA should be reporting. One of President Biden's first official acts in office... was to fire Pack, who laughably claimed that his being fired was "a partisan act" that would harm the credibility of USAGM.

Meanwhile, the latest story, as revealed by NPR, is that Pack spent millions of tax payer dollars investigating staff throughout the various organizations to try to come up with reasons they could be fired. This was in response to the courts pointing out he couldn't just randomly fire people in these organizations.

Last summer, an appointee of former President Donald Trump was irate because he could not simply fire top executives who had warned him that some of his plans might be illegal.

Michael Pack, who was CEO of the U.S. Agency for Global Media that oversees Voice of America, in August suspended those top executives. He also immediately ordered up an investigation to determine what wrongdoing the executives might have committed.

Instead of turning to inspectors general or civil servants to investigate, Pack personally signed a no-bid contract to hire a high-profile law firm with strong Republican ties.

The bill — footed by taxpayers — exceeded a million dollars in just the first few months of the contract.

And hiring an outside law firm is an abuse of his position, according to the Government Accountability Project, which discovered the details of this contract via a FOIA request:

"The engagement constitutes gross mismanagement, gross waste of taxpayer dollars and abuse of authority," David Seide of the Government Accountability Project, wrote in a letter Thursday to Congressional committees with oversight of the committee.

"The 'deliverables' provided by McGuireWoods are — always were — of questionable value," he wrote. "The investigations produced nothing that could justify the kind of discipline Mr. Pack sought to impose on current USAGM employees he did not like — he wanted them fired (they have since been reinstated). Investigations of former employees also yielded nothing."

It seems almost cartoonish what Pack did here:

The group's analysis of the new documents, shared with NPR, found the law firm McGuireWoods charged more than $320 per hour for 3,200 billable hours from August through October alone. It devoted five partners, six associates, two lawyers "of counsel," two staff attorneys, seven paralegals, three case assistants, 14 other timekeepers, and 11 "outsourced attorneys" to the work.

[....]

The invoices reflect that McGuireWoods' legal team, among other duties, reviewed social media posts, "news articles relating to Michael Pack" and an "[Office of Inspector General] audit on Hillary Clinton's email breach."

It truly is insane how obsessed Trumpists are over Hillary's emails.

But the main crux of the "investigation" appears to have been to cook up any reason at all to justify Pack firing all the non-Trump people he wanted to fire:

The nonprofit group's review found the McGuireWoods team spent nearly 2,000 hours in a massive review of documents and emails, 400 hours on fact investigation, and nearly 700 hours on what was labeled as "analysis/strategy." The records also show the legal team conducted voluminous legal research on federal ethics regulations and U.S. statutes. Such tasks for federal departments are typically, though not exclusively, undertaken by government attorneys, inspectors general, and human resources employees.

Incredible.

Filed Under: donald trump, intimidation, investigations, michael pack, propaganda, taxpayers, usagm, voice of america
Companies: voice of america