On Speech And Subpoenas, New York Giveth And Taketh (First, The Good News On Platform Jurisdiction)

from the I-love-New-York-decisions-like-this dept

There are a few recent cases to note out of New York that address speech and subpoenas on third parties. This first post is about a good one, and soon we'll have another... less good one. In Amelius v. Grand Imperial LLC a court in New York has recently reaffirmed that a New York-issued subpoena is only enforceable on an Internet platform if the New York courts have jurisdiction over the platform. Furthermore, relying on a 2014 US Supreme Court ruling, Daimler AG v. Bauman, the court in Amelius concluded that having merely registered to do business as an out-of-state company is not enough to give New York jurisdiction over platform companies with no other connection to the state than that, nor is their having information that might be relevant to a New York case. Instead the platform would either need to be incorporated or headquartered in New York for its courts to have jurisdiction over them.

Which does not mean that out-of-state platforms like Yelp (the platform at issue in this case) cannot be subpoenaed to supply information relevant to a New York case. What it does mean, however, is that the New York subpoena would need to be "domesticated" in the platform's home jurisdiction so that its own local courts would be able to enforce it. It is not necessarily hard to do this: for instance, in California, pretty much all that needs to happen is for a California court clerk, or even just a licensed California attorney, to add a California subpoena form to the out-of-state subpoena for it to become an enforceable California subpoena.

But what's good about this arrangement is that platforms can have some control over what laws will govern the subpoenas propounded against them and anticipate which courts will be able to compel them to act. In fact, they can choose to base themselves in states that offer the best laws and procedural rules most protective to them and their users' speech, because not all states do so equivalently. For instance, the test for whether a subpoena can be allowed to unmask an anonymous speaker in California is the Krisnky test (which requires the pleading to make a prima facie case against the speaker), but in other states the test is either the Dendrite test, the Cahill test, the "good faith" test (as was the case in the Virginia Hadeed Carpet case, which raised similar jurisdictional issues as this one), or no test at all (thus rendering all the subpoenas potentially enforceable, no matter what the effect on speech). These tests obviously vary greatly in the protection they afford to anonymous speakers.

California also includes mandatory fee-shifting to help deter abusive subpoenas and to compensate those who have had to fight them off. Like the anti-SLAPP statute does for unmeritorious litigation Section 1987.2 of the Code of Civil Procedure allows for mandatory recovery of fees for unmeritorious unmasking subpoenas that courts quash. Unfortunately, like robust anti-SLAPP laws, not all states have such a provision, which is another reason why it's important that platforms not be exposed to these other jurisdictions simply because they may have completed the purely ministerial task of registering with the Secretary of State or having some users there and not any more substantive connection. Platforms are in the business of facilitating speech, and they should be able to choose which laws to expose themselves to that will give them the best ability to do it.

Filed Under: california, free speech, jurisdiction, new york, platforms, subpoenas
Companies: amelius, grand imperial, yelp

Cops Aren't Just Submitting DNA Samples To Genealogy Services; They're Also Obtaining Customer Info

from the buyer-beware-etc. dept

Recently, a genealogy service provided law enforcement with the information they needed to locate a murder suspect they'd been hunting for over forty years. GEDMatch admitted it was the service investigators used to find a familial match to DNA samples it had taken from crime scenes. This revelation led people to question how private their DNA data was when shared with genealogy services. The answer is, of course, not very, what with the purpose of these services being the matching of DNA info from thousands or millions of unrelated individuals.

Police created a fake account to submit the sample they had and received matches that allowed them to narrow down the list of suspects. This was combined with lots of other regular police work -- combing public records and obituaries for living relatives near the locations the crimes occurred -- to gradually hone in on Joseph James DeAngelo, who is believed to have murdered twelve people and committed at least 51 rapes.

But there was more to this than the DNA search at GEDMatch. Investigators had also used a service called FamilyTreeDNA to look for possible matches. The public database maintained by the company apparently helped investigators narrow down the list of suspects. Peter Aldhous of Buzzfeed has more details.

From DNA collected from crime scenes, [investigator Paul] Holes knew 67 genetic markers on the killer’s Y chromosome. Every three months or so, he would check in Ysearch for matches. The subpoena was made when a profile containing just 12 genetic markers — including one that’s unusual among men of Western European ancestry — matched with the killer’s sample.

This subpoena demanded customer information for the person who had submitted matching DNA. Investigators were able to obtain payment info which led them to someone researching their family tree. This led to another sample -- and another dead end. The woman's father had a sample taken by investigators but the test cleared him of suspicion.

That subpoenas can be used to pierce the minimum of privacy given to customers by companies should come as no surprise. These have been used for years to demand subscriber info from service providers in both civil and criminal cases.

That being said, people may now approach DNA services a bit more cautiously. While companies may offer some assurances about personal info being protected, the nature of the business is sharing DNA markers and allowing your personal DNA structure to be matched against submissions by complete strangers… which will also include law enforcement investigators.

Any service that requires payment and personal info will be approached by law enforcement. In most cases, a warrant won't be needed. The Third Party Doctrine lowers protections for customers, making warrants mostly unnecessary. While some companies may push back more than others when law enforcement demands info, in most cases the government will get what it's seeking.

Filed Under: dna, genealogy, golden state killer, joseph deangelo, privacy, subpoenas
Companies: familytreedna, gedmatch

DOJ Asks Supreme Court To Dump Microsoft Case, Let It Use New CLOUD Act To Demand Overseas Data

from the sighs-and-eyerolling-from-DOJ-counsel dept

As expected, the DOJ has asked the Supreme Court to toss the Microsoft case. The appeal sitting before the court deals with collecting data overseas using US-issued warrants, rather than mutual assistance treaties. As the DOJ argues in its motion to vacate [PDF], the passage of the CLOUD Act -- stapled to the tail end of 2,200-page budget bill -- makes this argument moot. For all intents and purposes, the new law (which apparently still has no effective date) grants the government the power to demand production of data stored overseas by US companies using a regular magistrate's warrant.

The motion goes further than just asking the Supreme Court to drop the case. It also takes some time to complain about Microsoft inconveniencing the DOJ by forcing it to acquire another warrant for the same info under the newly-granted authority. The DOJ, despite its apparent compliance with Microsoft's request, spends a few paragraphs explaining why it shouldn't need to do the thing it already did.

The application of the CLOUD Act to the original Section 2703 warrant at issue in this case would not be retroactive. Microsoft’s production of the requested information has not been “completed,” Landgraf, 511 U.S. at 270, as it remains possible for Microsoft to comply fully with the government’s demand for disclosure. The Section 2703 warrant remained valid after the CLOUD Act, and no real consequences have attached to Microsoft’s failure to comply with the warrant up to this point.

[...]

Nevertheless, Microsoft has refused to acknowledge either that the CLOUD Act applies to the Section 2703 warrant at issue in this case or that Microsoft plans to disclose the required information under the original warrant.

Microsoft's objection hinges on unresolved contempt charges stemming from the case it successfully appealed twice. According to Microsoft, its compliance with the old warrant might trigger retroactive charges, which would be problematic for it. The DOJ points out no sanctions were ever threatened by the district court, which only entered contempt charges to allow the decision to be appealed.

Nonetheless, an exasperated DOJ has complied with Microsoft's demand that a new warrant issued under the CLOUD Act be provided.

Accordingly, on March 30, 2018, the government applied for a new warrant covering the relevant information requested in the Section 2703 warrant at issue in this case. A magistrate judge issued the warrant that same day. Under the new warrant, which will replace the original warrant and which the CLOUD Act indisputably governs, Microsoft must produce any covered information within its “possession, custody, or control.” CLOUD Act § 103(a). Microsoft no longer has any basis for suggesting that such a warrant is impermissibly extraterritorial because it reaches foreign-stored data, which was the sole contention in its motion to quash.

And it returns to the subject again to remind the court how much of a pain in the ass Microsoft is being about all of this.

The government does not believe that seeking a new warrant was necessary in order to compel Microsoft to act: In light of the CLOUD Act, Microsoft should have simply complied with the existing warrant, to which it can have no valid legal objection...

The last loose end the government seeks to have tied up is the appeals court decision, which the DOJ claims could cause future jurisdictional issues for warrants issued by that circuit. It also lets the Supreme Court know it thinks the lower decision should also be vacated because it's just so (subjectively) wrong.

Leaving the court of appeals’ decision in place as circuit precedent could therefore generate uncertainty in future extraterritoriality, Fourth Amendment, or subpoena cases arising in the Second Circuit. Given the serious flaws in the court’s reasoning, this case implicates the traditional need for vacatur to “clear[] the path for future relitigation of the issues” and to “eliminate[] a judgment, review of which was prevented through happenstance.”

The DOJ gets the win it wanted, but won't have circuit precedent to rely on. Instead, it got a whole new law to use to force US companies to turn over data stored outside of the US. It will now be able to meddle in international affairs and open the door for similar meddling by other countries not quite as respectful of civil liberties as we are.

Filed Under: 4th amendment, cloud act, data, doj, due process, overseas data, privacy, subpoenas, supreme court, surveillance, warrants
Companies: microsoft

Supreme Court Hears Oral Arguments In Microsoft Email Case

from the in-which-the-DOJ-claims-the-DOJ-can-get-communications-from-anywhere-in-the-worl dept

The Supreme Court held oral arguments in the Microsoft case on Tuesday. The case centers on jurisdictional limits for warrants issued under the Stored Communications Act. The government believes there should be no limits, not if it serves the warrant domestically. Microsoft, the recipient, informed the US the communications it sought resided in an Irish server, beyond the reach of the SCA.

The Second Circuit, in consecutive decisions, found in favor of Microsoft. If the government wants access to communications stored in overseas servers, it needs to work with that country's government to obtain them. After all, the US government certainly doesn't want other countries deciding their laws take precedence over our own and bypassing assistance treaties to obtain communications stored here.

Or maybe it does. Or maybe the DOJ just doesn't care about collateral damage. Either way, its appeal is being heard by the Supreme Court, which has a chance to alter an old law (1986's SCA) in a bad way. The government got off on the wrong foot by claiming its demand for communications wasn't a search. From the transcript [PDF]:

[Michael] DREEBEN [DOJ Deputy Solicitor General]: Mr. Chief Justice, and may it please the Court: Section 2703 of the Stored Communications Act focuses on classically domestic conduct. It requires disclosure in a court order by the United States of information related to United States crime and here by a United States service provider.

JUSTICE SOTOMAYOR: It actually requires a search. It's -- the disclosure here is really a substitute for the government's searching. The Act permits the government to have a warrant and go in and search for these materials or, in the alternative, to ask the source to do its own search and then turn the materials over. So why -- you describe it as if it's only a disclosure, but it's really a search.

Dreeben argued that the demand for communications isn't a search because the search is performed by the service provider. While it's true the government isn't going into Microsoft data centers and digging through servers, the fact is the search would not be taking place if the government hadn't requested one to be performed. It may be outsourcing the actual search, but Microsoft has zero interest in these communications until the government steps in and says it wants them. Dreeben is splitting hairs, but they're hairs that have been split for more than 30 years, when the SCA granted the government the power to obtain certain records and communications from service providers.

The government's lawyer also asserted that the SCA explicitly provides for the acquisition of overseas data. But the arguments made show that isn't the case. It governs production of data by US service providers. It says nothing about demanding they produce info stored in other countries. The DOJ wants the law to be read as allowing for the acquisition of overseas data, so long as the warrant is served in this country.

Justice Sotomayor challenged this assertion, pointing out a couple of relevant things. First, the law is more than 30 years old. Second, the point of territorial limits (one of them) is to avoid upsetting the international apple cart.

This is a 1986 statute. The reality in 1986, if you look at the statute and its reference to stored records, to stored communications, was -- it's a past technology, old concept. But I think it's fair to say that back then they were thinking that where these materials were stored had a geographic existence in the United States, not abroad or nowhere else, and that they were protecting the communications that were stored in particular locations.

Things have changed. But what you're asking us to do is to imagine what Congress would have done or intended in a totally different situation today. And the problem that Justice Ginsburg alludes to is the fact that, by doing so, we are trenching on the very thing that our extraterritoriality doesn't want to do, what our jurisprudence doesn't want to do, which is to create international problems.

She went on to note there's legislation in the works that would lift territorial limits in cases like these, but limit (or attempt to) international fallout. Why not leave things the way they are and let Congress sort it out? The DOJ's response is basically that Microsoft manufactured a problem with its refusal to comply with the SCA order, and now the US is out of step with data acquisition treaties made by (and with) other countries around the world.

The justices aren't all that thrilled with Microsoft's arguments either. Justice Alito pointed out Microsoft complied with SCA warrants prior to this challenge and that it always has the option to voluntarily disclose communications to the government. (The response from Microsoft's lawyer -- E. Joshua Rosenkranz -- is that doing this would violate its relationship with its customers, who assume the company won't just hand over info to law enforcement without being ordered to.)

There was also some discussion about the location of the servers and why this shouldn't matter when it comes to responding to a court order. Rosenkranz pointed out that the DOJ still couldn't access overseas emails even if it shoved the Microsoft employee aside and performed the search themselves. The instructions sent to retrieve the emails "land" in Ireland and the retrieval process begins, no matter who initiates the search. Trying to skirt territorial limits by using a domestic proxy doesn't make it any less of a violation of domestic statutes or, in the case of Ireland, Ireland's privacy laws.

It comes down to location, as Microsoft sums up. The fact that the papers sought are ones and zeroes should make no difference.

[T]he government asks this Court to grant it an extraordinary power, and it's a power that Congress did not think it was granting law enforcement in 1986, and certainly did not intend to grant to every police officer and every sheriff's deputy anywhere in the country. Back then, if the police needed to gather evidence from all over the world, they would have to engage with law enforcement everywhere else in those countries.

And they have the tools to do that, even though the DOJ portrays those as pretty much unworkable. Rosenkranz's take is a little more optimistic.

JUSTICE ALITO: All right. Well, all right. The service provider has chosen to store it overseas. There's no way to get the information, other than through these -- these very time-consuming MLAT procedures?

MR. ROSENKRANZ: Well, Your Honor, the way to get the information is through MLATs, and the only evidence in this record about MLATs is that MLATs do work. If it's urgent for the government, the other governments respond urgently.

It's hard to say where the court's sympathies lie. No one seems too impressed with Microsoft's assertions it doesn't have to respond to domestic warrants simply because someone chose to store their communications overseas. But, by the same token, no one's sold on the DOJ's assertions the SCA provides for extraterritorial searches. And, given its multiple appearances in the arguments, the court may simply decide to maintain the status quo and let Congress sort it out. This will force the DOJ to play by territorial guidelines until new laws are in place. It won't be happy, but it managed to get the Rule 41 rewrite it wanted which allows it to execute warrants anywhere in the US, no matter where they were issued.

The SCA needs a rewrite, but a rewritten law that considers the DOJ to be the prominent stakeholder isn't going to fix anything. Criminals have off-shored evidence for years now. A ruling for the status quo won't substantially increase the number of scofflaws stashing communications on foreign servers, but a ruling against it would definitely damage international relationships, if not numerous internet-based communication platforms. The DOJ would like the Supreme Court to rewrite laws on the fly, which really isn't its job. If the court decides it's going to stay in its lane with this case, chances are Microsoft comes away with a win, even if it ends up being a momentary victory.

Filed Under: 4th amendment, jurisdiction, sca, stored communications act, subpoenas, supreme court, warrants
Companies: microsoft

The Case Of Glassdoor And The Grand Jury Subpoena, And How Courts Are Messing With Online Speech In Secret

from the it-ain't-so-grand dept

In my last post, I discussed why it is so important for platforms to be able to speak about the discovery demands they receive, seeking to unmask their anonymous users. That candor is crucially important in ensuring that unmasking demands can't damage the key constitutional right to speak anonymously, without some sort of check against their abuse.

The earlier post rolled together several different types of discovery instruments (subpoenas, warrants, NSLs, etc.) because to a certain extent it doesn't matter which one is used to unmask an anonymous user. The issue raised by all of them is that if their power to unmask an anonymous user is too unfettered, then it will chill all sorts of legitimate speech. And, as noted in the last post, the ability for a platform receiving an unmasking demand to tell others it has received it is a critical check against unworthy demands seeking to unmask the speakers behind lawful speech.

The details of each type of unmasking instrument do matter, though, because each one has different interests to balance and, accordingly, different rules governing how to balance them. Unfortunately, the rules that have evolved for any particular one are not always adequately protective of the important speech interests any unmasking demand necessarily affects. As is the case for the type of unmasking demand at issue in this post: a federal grand jury subpoena.

Grand jury subpoenas are very powerful discovery instruments, and with good reason: the government needs a powerful weapon to be able to investigate serious crimes. There are also important constitutional reasons for why we equip grand juries with strong investigatory power, because if charges are to be brought against people, it's important for due process reasons that they have been brought by the grand jury, as opposed to a more arbitrary exercise of government power. Grand juries are, however, largely at the disposal of government prosecutors, and thus a grand jury subpoena essentially functions as a government unmasking demand. The ability to compel information via a grand jury subpoena is therefore not a power we can allow to exist unchecked.

Which brings us to the story of the grand jury subpoena served on Glassdoor, which Paul Levy and Ars Technica wrote about earlier this year. It's a story that raises three interrelated issues: (1) a poor balancing of the relevant interests, (2) a poor structural model that prevented a better balancing, and (3) a gag that has made it extraordinarily difficult to create a better rule governing how grand jury subpoenas should be balanced against important online speech rights.

Glassdoor is a platform focused on hosting user-provided information about employers. Much of the speech it hosts is necessarily contributed anonymously so that the speakers can avoid any fallout from their candor. This is the sort of fallout that, if they had to incur it, would discourage them from contributing information others might find valuable. The seriousness of these sorts of consequences is why the district court decision denying Glassdoor's attempts to resist the grand jury subpoena seeking to unmask their users reflects such a poor balancing of the relevant interests. Perhaps if the subpoena had been intended to unmask people the government believed were themselves guilty of the crime being investigated, the balance might have tipped more in favor of enforcing it. But the people who the subpoena was seeking to unmask were simply suspected as possibly knowing something about the crime that others were apparently committing. It is not unreasonable for the government to want to be able to talk to witnesses, but that desire to talk to them is not the only interest present here. These are people who were simply availing themselves of their right to speak anonymously, and who, if this subpoena is enforced, are going to be shocked to suddenly find the government on their doorstep wanting to talk to them.

This sort of unmasking is chilling to them and anyone else who might want to speak anonymously because it means that there's no way they ever will be able to speak should their speech happen to ever somehow relate (however tangentially) to someone else's criminal behavior. It is also inconsistent with the purported goal of fighting crime because it will prevent criminal behavior from coming to light in the first place, for few will want to offer up information if it will only tempt trouble for them at some point in the future.

This mis-balancing of interests is almost a peripheral issue in this case, however. The more significant structural concern is why such a weak balancing test was used. As discussed previously, in order to protect the ability to speak anonymously online, it is important for a platform to be able to resist demands to unmask their users in cases where the reason for the unmasking does not substantially outweigh the need to protect people's right to speak anonymously online. But the district court denied Glassdoor's attempt to resist the subpoena when it chose to apply the test from Branzburg v. Hayes, a Supreme Court case focused on the ability to resist a grand jury subpoena. Branzburg, however, has nothing to do with the Internet or Internet platforms. It is a case from the 1970s that was solely focused on whether the First Amendment gave journalists the right to resist a grand jury subpoena. Ultimately it decided that they generally had no such right, at least so long as the government was not shown to be acting in bad faith, which, while not nothing, is not a standard that is particularly protective of anonymity. It also barely even addressed the interests of the confidential sources themselves, dismissing their interest in maintaining anonymity as a mere "preference," and one the Court presumed was being sought only to shield themselves from prosecution for their own criminal culpability.

The upshot of Branzburg is that the journalist, as an intermediary for a source's information, had no right to resist a grand jury subpoena. Unfortunately, Branzburg simply can't be extended to the online world where, for better or worse, essentially all speech must be intermediated by some sort of platform or service in order to happen. The need to let the platforms resist grand jury subpoenas therefore has less to do with whether an intermediary itself has a right to resist them and everything to do with the the right of their users to speak anonymously, which, far from being a preference, is an affirmative right the Supreme Court, after Branzburg, subsequently recognized.

A better test, and one that respects the need to maintain this critical speech right, is therefore needed, which is why Glassdoor appealed the district court's ruling. Unfortunately, its appeal has raised a third issue: while there is often a lot of secrecy surrounding a grand jury investigation, in part because it makes sense to keep the subject of an investigation in the dark, preserving that level of secrecy does not necessarily require keeping absolutely everything related to the subpoena under seal. Fortunately the district court (and the DOJ, who agreed to this) recognized that some information could safely be released, particularly related to Glassdoor's challenge of the subpoena's enforcement generally, and thanks to that limited unsealing we can tell that the case involved a misapplication of Branzburg to an Internet platform.

Unfortunately the Ninth Circuit didn't agree to this limited disclosure and sealed the entirety of Glassdoor's appeal, even the parts that were already made public. The effects of this sealing included that it became impossible for potential amici to weigh in in support of Glassdoor and to argue for a better rule that would allow platforms to better protect the speech rights of their users. While Glassdoor had been ably litigating the case, the point of amicus briefs is to help the court see the full implications of a particular ruling on interests beyond those immediately before it, which is a hard thing for the party directly litigating to do itself. The reality is that Glassdoor is not the first, and will not be the last, platform to get a grand jury subpoena, but unless the rules governing platforms' ability to resist are stronger than what's afforded by Branzburg, the privacy protection speakers have depended on will continue to evaporate should their speech ever happen to capture the interest of a federal prosecutor with access to grand jury.

For all we know, of course, the Ninth Circuit might have seen its point and quashed the subpoena. Or maybe it upheld it and maybe the FBI has now unpleasantly surprised those Glassdoor users. We may never know, just as we may never know if there are other occasions where courts have used specious reasoning to allow grand jury subpoenas to strip speakers of their anonymity. Even if the Ninth Circuit indeed fixed the problems with this questionable attempt at unmasking, by doing it in secret it's missed an important opportunity to provide guidance to lower courts to help ensure that they don't allow other questionable attempts to keep happening to speakers in the future.

Filed Under: anonymity, gag orders, sealed dockets, subpoenas, warrants
Companies: glassdoor

Some Thoughts On Gag Rules And Government Unmasking Demands

from the dissent-dies-in-the-dark dept

The news about the DOJ trying to subpoena Twitter calls to mind an another egregious example of the government trying to unmask an anonymous speaker earlier this year. Remember when the federal government tried to compel Twitter to divulge the identity of a user who had been critical of the Trump administration? This incident was troubling enough on its face: there’s no place in a free society for a government to come after a critic of it. But largely overlooked in the worthy outrage over the bald-faced attempt to punish a dissenting voice was the government’s simultaneous attempt to prevent Twitter from telling anyone that the government was demanding this information. Because Twitter refused to comply with that demand, the affected user was able to get counsel and the world was able to know how the government was abusing its authority. As the saying goes, sunlight is the best disinfectant, and by shining a light on the government's abusive behavior it was able to be stopped.

That storm may have blown over, but the general issues raised by the incident continue to affect Internet platforms – and by extension their users and their speech. A significant problem we keep having to contend with is not only what happens when the government demands information about users from platforms, but what happens when it then compels the same platforms to keep those demands a secret. These secrecy demands are often called different things and are born from separate statutory mechanisms, but they all boil down to being some form of gag over the platform’s ability to speak, with the same equally troubling implications. We've talked before about how important it is that platforms be able to protect their users' right to speak anonymously. That right is part and parcel of the First Amendment because there are many people who would not be able to speak if they were forced to reveal their identities in order to do so. Public discourse, and the benefit the public gets from it, would then suffer in the absence of their contributions. But it's one thing to say that people have the right to speak anonymously; it's another to make that right meaningful. If civil plaintiffs, or, worse, the government, can too easily force anonymous speakers to be unmasked then the right to speak anonymously will only be illusory. For it to be something speakers can depend on to enable them to speak freely there have to be effective barriers preventing that anonymity from too casually being stripped by unjust demands.

One key way to prevent illegitimate unmasking demands is to fight back against them. But no one can fight back against what they are unaware of. Platforms are thus increasingly pushing back against the gags preventing them from disclosing that they have received discovery demands as a way to protect their communities of users.

While each type of demand varies in its particulars (for instance a civil subpoena is different from a grand jury subpoena, which is different than an NSL, which is different from the 19 USC Section 1509 summons that was used against Twitter in the quest to discover the Trump critic), as well as the rationale for why the demanding party might have sought to preserve the secrecy around the demand with some sort of gag, all of these unmasking demands still ultimately challenge the durability of an online speaker's right to remain anonymous. Which is why rulings that preserve, or, worse, even strengthen, gag rules are so troubling because they make it all the more difficult, if not outright impossible, to protect legitimate speech from illegitimate unmasking demands.

And that matters. Returning to the example about the fishing expedition to unmask a critic, while it's great that in this particular case the government quickly dropped its demand on Twitter, questions remain. Was Twitter the only platform the government went after? Perhaps, but how would we know? How would we know if this was the only speech it had chosen to investigate, or the 1509 summons the only unmasking instrument it had used to try to identify the speaker? If the other platforms it demanded information from were, quite reasonably, cowed by an accompanying demand for secrecy (the sanctions for violating such an order can be serious), we might never know the answers to these questions. The government could be continuing its attacks on its apparently no-longer-anonymous critics unabated, and speakers who depended on anonymity would unknowingly be putting themselves at risk when they continued to speak.

This state of affairs is an affront to the First Amendment. The First Amendment was intended in large part to enable people to speak truth to power, but when we make it too hard for platforms to be partners in protecting that right it entrenches that power. There are a lot of ways that platforms should have the ability to be that partner, but one of them must be the basic ability to tell us when that right is under threat.

Filed Under: anonymity, free speech, gag orders, gag rules, governments, nsls, subpoenas, unmasking, warrants

New DOJ Policy Restricts Use Of Warrant/Subpoena Gag Orders

from the finally dept

It appears public pressure -- coming in the form of lawsuits and gag order challenges -- has finally had an effect on the DOJ. Ellen Nakashima is reporting the Justice Department will no longer attach indefinite gag orders to routine requests for data and communications.

The Justice Department has issued new guidelines aimed at providing more transparency around prosecutors’ secret demands for customer data stored on tech firms’ servers.

The binding guidance, approved last week by Deputy Attorney General Rod J. Rosenstein, ends the routine imposition of gag orders barring companies from telling customers that their email or other records have been turned over in response to legal demands.

It also bans — in most cases — indefinite gag orders that forbid a company from ever telling users that their data have been searched.

This new guidance has resulted in Microsoft dropping its lawsuit against the DOJ over its gag orders. This will likely be followed by similar dismissals. There are, of course, some exceptions to the guidelines that will still allow the DOJ to deploy gag orders. But the policy at least (mostly) forbids the FBI (and others) from gagging companies forever.

The new guidance requires prosecutors to tailor their applications for secrecy orders to ensure that they are necessary, and explain why. For instance, a prosecutor might fear that the target will destroy data if he or she learns of the probe. Or the target might try to flee. The assessment must be “individualized and meaningful.”

And now there is a time limit: “Barring exceptional circumstances,” a gag order may be sought for “one year or less.”

Now, for the bad news. Anything the DOJ can claim is national security-related will probably still come with a gag order attached. In addition, this guidance has zero effect on the FBI's favorite paperwork, National Security Letters. The upside is normal warrants and subpoenas won't be treated as requests so sensitive no one should be able to talk about them, much less inform targets their data/communications are being sought.

The new policy also contains a couple of advantages for the DOJ. First, the more lawsuit dismissals this leads to, the less chance there is of a court handing down a precedential ruling severely restricting the use of gag orders. Second, the voluntary nature allows the DOJ to resume its indiscriminate deployment of gag orders at any time. While this development is welcome, it should be noted this is an area where legislation would be far more effective than internal policy shifts if US tech companies would like to see the change become permanent.

Filed Under: doj, gag orders, subpoenas, warrants
Companies: facebook, google, microsoft, twitter

Deputy Attorney General Walks Back Attorney General's Threat To Journalists

from the house-divided-against-itself--FOUR-MORE-YEARS!-FOUR-MORE-YEARS! dept

Because this administration rarely seems to agree with itself, another recent pronouncement is being rolled back by someone within the same agency that made statements to the opposite effect only days earlier. Let me explain:

On Friday, Jeff Sessions held a press briefing on national security leaks, stating the DOJ was aggressively pursuing several leak investigations. That these investigations would most likely discourage actual whistleblowers was assumed, but not stated. Sessions didn't directly state he was rolling back previous DOJ policy to start targeting journalists who published leaked documents, but he did say this:

I have listened to career investigators and prosecutors about how to most successfully investigate and prosecute these matters. At their suggestion, one of the things we are doing is reviewing policies affecting media subpoenas. We respect the important role that the press plays and will give them respect, but it is not unlimited. They cannot place lives at risk with impunity. We must balance their role with protecting our national security and the lives of those who serve in our intelligence community, the armed forces, and all law abiding Americans.

This appeared to indicate the DOJ was taking the gloves off and would be going after journalists who refused to reveal their sources. Sessions refused to answer a direct question about the issue before ending the press conference, echoing his non-answer on the same subject during his confirmation hearing.

Two days later, the deputy attorney general, Rod Rosenstein, has walked back some of what was implied during Friday's press briefing.

Speaking to Fox News Sunday, Deputy Attorney General Rod Rosenstein emphasized that the department’s renewed effort to prosecute leaks of classified information was not aimed at the news media.

“We’re after the leakers, not the journalists,” he said. “We don’t prosecute journalists for doing their jobs.“

It's only a partial rollback. Rosenstein wouldn't 100% rule out journalists being charged with crimes if the publication of documents was somehow criminal. (Not sure how often that would actually be the case, but the DOJ has a pretty vivid imagination sometimes.) But it sounds like the DOJ isn't going to start pushing for contempt charges if journalists refuse to turn over info when subpoenaed.

Of course, this could all change again in the next few days. The Trump Administration has been nothing if not schizophrenic, with officials offering contradictory statements and the president's own tweets/statements routinely refuted by department heads, cabinet members, and the government's lawyers.

Filed Under: chilling effects, doj, first amendment, free speech, freedom of the press, intimidation, jeff sessions, rod rosenstein, subpoenas

Jeff Sessions Suggests He's Steering The DOJ Towards Prosecuting More Journalists

from the publish-and-die dept

Jeff Sessions and the DOJ are back to threatening leakers again. It seems counterproductive, considering each new threat of leak investigations does little to stem the steady flow of leaks. But the new DOJ boss seems ready to go further than his predecessors.

Having already expressed an interest in taking care of Obama's unfinished business by going after Wikileaks, Sessions now appears to be headed towards threatening journalism and the First Amendment itself. This would be a new direction for the Justice Department. A 2013 report by the DOJ stated it was unwilling to consider the punishment of journalists during leak investigations, except as a last resort.

As an initial matter, it bears emphasis that it has been and remains the Department's policy that members of the news media will not be subject to prosecution based solely on newsgathering activities. Furthermore, in light of the importance of the constitutionally protected newsgathering process, the Department views the use of tools to seek evidence from or involving the news media as an extraordinary measure.

Journalists have been subpoenaed before in leak investigations, but the DOJ has generally been unwilling to jail journalists for refusing to hand over information on their sources. Jeff Sessions, however, seems less concerned about using the weight of the law against members of the press.

In his written remarks before a press briefing on national security leaks, Sessions said this:

I have listened to career investigators and prosecutors about how to most successfully investigate and prosecute these matters. At their suggestion, one of the things we are doing is reviewing policies affecting media subpoenas. We respect the important role that the press plays and will give them respect, but it is not unlimited. They cannot place lives at risk with impunity. We must balance their role with protecting our national security and the lives of those who serve in our intelligence community, the armed forces, and all law abiding Americans.

This strongly suggests the 2013 guidelines on "new media" will be rewritten by Sessions' DOJ to justify increased prosecutions of journalists. This is a dangerous step forward, especially in an era where leaks seem to be coming faster than journalists can publish them. Throwing a few journalists in jail for contempt creates a severe chilling effect. Even the enhanced threat of prosecution may be enough to discourage journalists from publishing leaked docs or working with government sources.

Sessions was asked directly if this administration would prosecute journalists. He refused to answer the question before ending the briefing. This would be the second time Sessions has dodged this question -- the first being Sen. Klobluchar's question along the same lines during his confirmation hearing. What better way to send a chilling message to journalists then telling them their freedom might be at stake as they attend a press briefing.

Filed Under: chilling effects, doj, first amendment, free speech, jeff sessions, journalism, sources, subpoenas

Prosecutors Say Subpoenas Will Be Used For Serious Crimes Against Children, Use Them For Everything Else

from the flexible-definitions-and-malleable-purposes dept

It's always been true: if you give a government agency increased powers for a limited purpose, the limitations and the purpose will soon be shrugged off. The ACLU of Massachusetts is trying to get some prosecutorial power reeled back in, thanks to administrative subpoena mission creep.

When prosecutors first pushed for the power to seize telephone and Internet records themselves, bypassing the need for a judge to approve a warrant, they argued the power was necessary to help them quickly track down missing children and sexual predators.

But records obtained by the American Civil Liberties Union show prosecutors have used that significant subpoena power hundreds of times a year in routine investigations related to larceny, check fraud, assault, and other common crimes.

[...]

In one case cited by the [ACLU], Suffolk District Attorney Daniel F. Conley issued a subpoena in 2011 to find the subscriber information for several Twitter handles and for anyone who used the hashtag #BostonPD after the police removed an Occupy Boston encampment in Dewey Square.

It is the same here as it is with everything else. Stingrays were supposed to be counterterrorism devices, what with them being repurposed war gear. But then it was homicides. Then drug dealers. Then pretty much anyone cops wanted to locate, even if all they'd done was steal $60 of fast food.

Likewise, National Security Letters. The clue is in the name. Maybe they're only being used for national security purposes, but if so, America is under constant threat from prolific terrorists. The FBI issues thousands of these a year. And we know very little about the underlying crimes, thanks to indefinite gag orders and loads of government court filings still under seal.

The subpoenas discussed here are also administrative. This means prosecutors write the paperwork themselves and run it past no one before serving it to internet service providers and phone companies. They also do this thousands of times a year.

Four other district attorneys disclosed a limited amount of data. But Healey and Middlesex District Attorney Marian T. Ryan turned over a large trove of information that revealed how frequently the subpoenas are used. Ryan’s office said it issued more than 2,400 over the last three years, while Healey’s office said it sent more than 1,200 during the period.

[...]

District Attorney Michael O’Keefe of the Cape and Islands, who issued 450 subpoenas over the last three years...

All for serious crimes, right?

Ryan’s office said the subpoenas were used to investigate crimes ranging from annoying calls and destruction of property to stabbing and rape of a child.

This isn't just irritating the ACLU. It's also irritating legislators who felt they were misled by prosecutors during the push for expanded power. Senator Cynthia Creem says prosecutors said it would be used to tackle crimes against children. Instead, the subpoenas are being used to handle almost any criminal activity. In response to this prosecutorial abuse of a legislated privilege, Creem is now attempting a claw-back.

Creem has filed a bill that would limit the use of administrative subpoenas to certain crimes against children and require prosecutors to report how many subpoenas they issue, the types of investigations involved, and whether they led to charges and convictions. The bill would also require prosecutors, at the close of an investigation, to inform the customers whose telephone and internet logs were seized.

Undoubtedly, this bill will face stiff resistance from prosecutors who've become accustomed to getting everything they want exactly when they want it. It's pretty difficult to convince investigators they don't need this, even though they apparently had no problem closing investigations prior to the law's passage in 2008.

Filed Under: 4th amendment, administrative subpoena, for the children, investigations, privacy, subpoenas, surveillance