Bill Barr Says DOJ Prosecutors Should Bring Sedition Charges Against Violent Protesters

from the what-even-the-fuck dept

If Attorney General Bill Barr is ever gifted with superlatives, the one that will stick will be "worst."

After presiding over some civil liberties violations under Bush I, Barr has returned to AG work under Trump and seems dead set on making everyone forget his first reign of far-more-limited terror. Barr wants encryption backdoors, the end of Section 230 immunity, and law enforcement officers promoted to the rank of demigod. The public will be expected to absorb the collateral damage.

Bill Barr does know how to deliver a good speech, whether he's preaching to the converted or, in this recent speech, preaching to some developing converts. Speaking to Hillsdale College students during their Constitution Day event, Barr said he's trying to build a kinder, gentler DOJ.

In exercising our prosecutorial discretion, one area in which I think the Department of Justice has some work to do is recalibrating how we interpret criminal statutes.

In recent years, the Justice Department has sometimes acted more like a trade association for federal prosecutors than the administrator of a fair system of justice based on clear and sensible legal rules. In case after case, we have advanced and defended hyper-aggressive extensions of the criminal law. This is wrong and we must stop doing it.

[...]

To be clear, what I am describing is not the Al Capone situation — where you have someone who committed countless crimes and you decide to prosecute him for only the clearest violation that carries a sufficient penalty. I am talking about taking vague statutory language and then applying it to a criminal target in a novel way that is, at a minimum, hardly the clear consequence of the statutory text.

This is definitely something that could use improvement. The DOJ has engaged in plenty of bad-faith, overly-aggressive prosecutions. Almost anything involving the CFAA comes to mind.

But Barr can't lead this reform. He doesn't even really want it. As he was delivering this speech about prosecutorial discretion, news broke detailing the contents of a phone call Barr had with DOJ prosecutors:

Attorney General William Barr expressed frustration with some local and state prosecutors' handling of riot-related crimes, telling top Justice Department prosecutors that he wants them to be aggressive in bringing charges related to protest violence, including exploring using a rarely used sedition law, according to a person familiar with the matter.

This isn't discretion. This is [checks Barr's Constitution Day speech] a "hyper-aggressive extension of criminal law," the "taking" of "vague statutory language and applying it to a criminal target in a novel way." Barr's not going to practice what he preached at Hillsdale College and he doesn't want his prosecutors engaging in restraint either.

Proving sedition is difficult. That's why we haven't historically charged violent protesters with sedition. There are a bunch of other federal and local statutes that capably address acts of violence or vandalism. There's no reason federal prosecutors should start pretending violence or vandalism occuring during/adjacent to anti-police brutality protests is a conspiracy to overthrow the government or "oppose by force" federal laws and statutes. There has only been one successful sedition prosecution in the last 25 years. It seems unlikely using this law to ensure protest-related prosecutions are federal is going to work.

But that's not all. Barr also wanted DOJ prosecutors to find some way to go after Seattle's mayor over her handling of protests in her city.

Attorney General William Barr asked Justice Department prosecutors to explore charging Seattle Mayor Jenny Durkan (D) over a protest zone in the city, The New York Times reported Wednesday.

Barr asked prosecutors in the department's civil rights division to explore charging Durkan during a call with prosecutors last week, the Times reported citing two people briefed on those discussions.

Barr's nice words about dialing back aggressive prosecutions were aimed solely at DOJ prosecutors who have made the mistake of going after Trump or his underlings in the administration. Barr doesn't care about the victims of over-prosecution who don't have connections to the White House. Those people are still on their own and still subject to the whims of prosecutors who have been given free reign to interpret the law for maximum prosecutorial efficiency. Barr said the quiet part loud later in his Hillsdale speech:

Rather than root out true crimes — while leaving ethically dubious conduct to the voters — our prosecutors have all too often inserted themselves into the political process based on the flimsiest of legal theories. We have seen this time and again, with prosecutors bringing ill-conceived charges against prominent political figures, or launching debilitating investigations that thrust the Justice Department into the middle of the political process and preempt the ability of the people to decide.

On one hand, this is a sickening display of sycophancy. On the other hand, it will save the taxpayers some money. No sense wasting time prosecuting someone Trump's just going to pardon.

Barr's day of awfulness finally came to end with this unbelievably hot take in response to a student's question about COVID-19 lockdowns. There's no way to really brace yourself for his response:

"You know, putting a national lockdown, stay at home orders, is like house arrest. Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history," Barr said as a round of applause came from the crowd.

The Greatest Intrusion. Well. OK then.

Bill Barr can no longer be satirized. He'd be an unsubtle farce capable of gathering only the cheapest laughs if he wasn't actually in charge of the goddamn Department of Justice. This makes him frightening, rather than pitiable.

Filed Under: doj, law enforcement, protests, sedition, william barr

DOJ Tries To Step In To Trump Defamation Case To Get It Dismissed; Claims His Statements About Alleged Rape Were Part Of His Presidential Duties

from the say-what-now? dept

Earlier this week, you may have seen a bunch of headlines about Bill Barr's DOJ trying to step in to take over a defamation case against the President. There is so much crazy about this story that it seemed worthwhile to dig in.

There have been a rash of somewhat strange defamation lawsuits over the last few years, often connected to the "me too" movement, in which someone calls out a person for bad behavior, the accused person denies it, and then the accuser sues for defamation. To be honest, most of these feel like SLAPP suits, even if I'm sympathetic to the accuser. A mere denial of something should not be nearly enough to reach the stage of defamation. One of these lawsuits was filed by E. Jean Carroll against President Trump. Carroll claimed that Trump sexually assaulted her in a dressing room in a Manhattan department store many years ago. Upon being asked about the accusations, Trump denied it, saying they were "totally false" and claiming (falsely) that he "never met this person in my life." Based on those statements, Carroll sued in NY state court.

Again, I actually think the case is pretty weak as a defamation case. Many of the claimed statements are not remotely possible of reaching the level of defamation. Many of them take statements that Trump made and stretch the intended meaning of them quite far. Others take statements that are clearly Trump's (bonkers) opinion, rather than factual. It is, overall, a weak case and will almost certainly not be a winning case for Carroll. That said, the case has rolled on (remember: New York has a terrible anti-SLAPP law, one of the worst in the country -- and while the legislature has passed an improved law, I don't believe Cuomo has signed it yet). Most recently there was a discovery dispute. Carroll is seeking a sample of Trump's DNA as part of her discovery requests. Trump's personal lawyers sought to delay discovery, but failed to do so last month.

That puts the President in a bit of a pickle. Even though he'd likely win the lawsuit in the end, it appears he'd really rather not provide Carroll with a sample of his DNA. The insane solution? Bill Barr and the DOJ suddenly jump into the case on behalf of Trump and try to remove it to federal court, taking over for Trump's private lawyers. Now you may be saying "wait, what?" and I agree with you. But, a little background here is necessary. First, there's the Westfall Act, which requires that if the Attorney General "certifies" that the actions a federal employee is being sued over were "acting within the scope of his office or employment," then the DOJ steps in to represent that federal employee. This is done to avoid having federal employees randomly sued and having their life upended for doing their job.

But... this is not the usual case in which you'd see this. For this to apply, Bill Barr has to claim that Donald Trump saying he didn't know E. Jean Carroll, didn't rape her, and a few other things were within the scope of his role as President of the United States... and what the actual fuck? How is that even remotely a thing? The filing by the DOJ doesn't go into much depth on this, it just says that because the DOJ says so, it must be so:

Acting pursuant to 28 C.F.R. § 15.4(a), the Attorney General’s delegate has certified that President Trump was acting within the scope of his office as President of the United States when he publicly denied as false the allegations made by Plaintiff.

In a footnote, the DOJ tries to give Barr deniability by saying he delegated his authority here to Torts Branch Director James Touhey, but come on. Everyone knows that this is Barr doing the President's personal business. The full certification is just Touhey saying "yup, he denied the rape as part of his job" in slightly more official words:

I, James G. Touhey, Jr., am the Director of the Torts Branch, Civil Division, United States Department of Justice, responsible for most civil litigation under the Federal Tort Claims Act. I have read the complaint dated November 4, 2019, in the above-captioned case. Pursuant to 28 U.S.C. § 2670, and by virtue of the authority vested in me pursuant to 28 C.F.R. § 15.4, I hereby certify, on the bases of the information now available with respect to the incidents alleged in the complaint, that Defendant Donald J. Trump was acting within the scope of his office as the President of the United States at the time of the alleged conduct.

Honestly, this bullshit should haunt James G. Touhey Jr. for the rest of his life as a lawyer. It is pure bullshit.

And while some people are claiming that this is the DOJ trying to take over the "defense" of Trump in this case, that's not it at all. It's trying to get the case dismissed. Federal employees are effectively immune from defamation claims under the very same Westfall Act, because of sovereign immunity. In the case of Suzanne Brown v. Katherine Schoeneman, someone tried to sue an FBI employee for defamation, but the DOJ stepped in under the Westfall Act (making the new case Brown v. U.S.) and got the case dismissed thanks to sovereign immunity for defamation claims.

Of course, that ruling does say that the DOJ's certification can be challenged, and you can bet that Carroll's lawyers are going to challenge every last word of Touhey's certification -- so I assume that's the next step here. For what it's worth, the case has been assigned to Judge Lewis Kaplan. I honestly don't know much about Judge Kaplan other than the fact that last month we wrote about him issuing quite a benchslap to infamous copyright troll Richard Liebowitz, so based on that small sample size, he appears to be a judge not willing to put up with much shit. That said, the DOJ is not the same as Richard Liebowitz.

Also, as pointed out by Ken White, there are some cases that suggest the DOJ could win this argument. In CAIR v. Ballenger, the DC Circuit said that since answering questions from the press is part of the job, then answers about a scandal outside of your official duties could be considered within the scope of the office. So, because the press was talking to him in his role as President and he answered as such, his answers about a claim of rape from decades ago are now a part of his job as President. This argument makes about as much sense as saying that his comments were defamatory in the first place, so it's a toss up here over which of these arguments is dumber.

Of course, some of you may be asking why did the DOJ just step in now if the case was filed back in November of last year. The answer is almost certainly that Trump REALLY REALLY does not want to give a DNA sample to Carroll. There may be legit reasons why he would not want to do that, and I still think her defamation case is weak, but it's is truly fucked up that he then gets to pervert the Justice Department with the help of Bill Barr, to try to squeeze out of the case.

Filed Under: defamation, discovery, dna, doj, donald trump, e. jean carroll, westfall act, william barr

Bill Barr's 'Antitrust Crackdown' Of Google Is Going To Be A Weaponized Farce

from the bad-faith-bullocks dept

Back in May we discussed how strange it was that folks would assume that Bill Barr's "antitrust inquiry" into Google would be in good faith, given Barr's history of, well, everything. It's abundantly clear by now that Barr's DOJ has been eager to weaponize antitrust to go after companies Trumpland is politically opposed to (like the legal cannabis sector), while turning a blind eye to every monopolistic whim of his BFFs in the telecom sector. The DOJ's petty lawsuit against California automakers also made it clear there's no real intellectual consistency being applied at the Trump DOJ when it comes to antitrust.

Now reports indicate that Barr has been expediting the DOJ "antitrust inquiry" into Google, in a transparent bid to get his "crackdown of big tech" into the headlines during the election cycle:

"In an unusual move, Mr. Barr placed the investigation under Jeffrey A. Rosen, the deputy attorney general, whose office would not typically oversee an antitrust case. Mr. Barr and Mr. Delrahim also disagreed on how to approach the investigation, and Mr. Barr had told aides that the antitrust division had been asleep at the switch for decades, particularly in scrutinizing the technology industry."

Context here matters. As the net neutrality fracas made abundantly clear, Google has long been the nemesis of the telecom sector, which has been clamoring for greater scrutiny of "big tech" while successfully convincing the Trump administration to neuter pretty much all oversight of telecom monopolies. Barr, a former Verizon lawyer, has eagerly rubber stamped numerous telecom consolidation efforts with less than zero interest in hard data, most notably the job and competition eroding merger between T-Mobile and Sprint.

Despite an ocean of data showing that deal would reduce competition, harm sector pay, kill overall jobs, and result in higher prices, T-Mobile did everything in its power to kiss the Trump administration's ass to gain merger approval. As a result, DOJ antitrust boss Makan Delrahim not only approved the deal without listening to experts, but used his personal phone and email accounts to help lobby the deal to approval. That is what "antitrust enforcement" looks like at Donald Trump and Bill Barr's DOJ. It's just cronyism dressed up as serious adult policy.

Now, apparently, we're to believe that Barr genuinely cares about "big tech" monopolies.

The speed at which Barr is moving to shovel the inquiry into the spotlight for election season fodder has apparently upset many staffers at the DOJ, who say the rush has eroded the integrity of the investigation:

"Many career staff members in the antitrust division, including more than a dozen who were hired during the Trump administration, considered the evidence solid that Google’s search and advertising businesses violated antitrust law. But some told associates that Mr. Barr was forcing them to come up with “half-baked” cases so he could unveil a complaint by Sept. 30, according to three people with knowledge of the discussions.

Some lawyers who felt they needed more time laid out their concerns in the memo and left the case; about 20 lawyers remain on the team."

There are clearly several goals here for Billy Barr.

The first is to get the false "Conservatives are being unfairly targeted" victimization complex in headlines ahead of the election. The second is to gain leverage over companies like Google as they ponder cracking down on Trump disinformation during an election season. The third is to aid telecom giants and folks like Rupert Murdoch that have long coveted Silicon Valley's advertising revenue. None of these motivations have anything to do with a genuine "antitrust inquiry," but we're going to spend the next month or two watching experts and journalists, who should know better, pretend otherwise.

Some economists have pointed out that Barr's quest to use antitrust to police viewpoint diversity not only isn't particularly legally sound, it (like so much in Trumpland) flies in the face of everything Conservatives claimed they believed in over the last thirty years. For example, there was decades of right wing histrionics about the "fairness doctrine" -- a concern that's suddenly and mysteriously absent as Barr attempts to mutilate antitrust to support his quest to police "viewpoint diversity":

Google engages in plenty of dodgy behavior that requires intelligent, adult antitrust and regulatory scrutiny. But Iran Contra cover upper Billy Barr, fresh off endless bouts of sycophancy, obvious falsehoods, and antitrust abuse, is probably the last guy capable of doing so with even a modicum of integrity.

Filed Under: antitrust, cronyism, doj, william barr
Companies: google

Bill Barr Applauds FOSTA Sponsor's Clone Of Senate's Encryption-Breaking 'Lawful Access' Bill

from the DO-NOT-CONGRATULATE dept

I guess those "rule of law" folks don't care if a law is any good or will do what it intends to do without causing significant collateral damage. All they care about is that it's a law and, as a law, everyone should just subject themselves to it with a minimum of complaining.

The Attorney General is one of those "rule of law" people. Sure, he works for an administration that doesn't seem to care much about laws, propriety, or basic competence, but he's the nation's top cop, so laws and rules it is.

Bill Barr wants holes in encryption. He wants them so badly he's making up new words. "Warrant-proof encryption" isn't any different than regular encryption. It only becomes "warrant-proof" when the DOJ and FBI are talking about it, as though it was some new algorithm that only scrambles communications and data when the presence of a warrant is detected.

Far too many people in Washington think encryption is only valuable to criminals. Bills are in the works to compel encryption-breaking/backdooring. Some even handcuff these demands to Section 230 immunity -- a 2-for-1 special on shoveled shit straight from the federal government to Americans' favorite platforms and services.

Given how much the AG loves broad, abusive laws, it's no surprise he's going on the record to congratulate the author of another terrible law on her newest terrible piece of legislation.

Today, Attorney General William P. Barr issued the following statement on the introduction of a bill in the U.S. House of Representatives that would give law enforcement access to encrypted data with court approval in order to protect user privacy. The legislation was introduced by Representative Ann Wagner.

“I applaud Representative Wagner for introducing this critical lawful access legislation. Although strong encryption is vital, we cannot allow the tech industry to use encryption that blinds law enforcement and prevents it from thwarting or investigating serious crimes and national security threats, including terrorist plots, cyberattacks, and sexual exploitation."

Yes, let's applaud Rep. Ann Wagner. (Let's not.) Wagner was the sponsor behind FOSTA, the anti-sex worker law (d/b/a anti-sex trafficking legislation) that has been instrumental in roughly zero prosecutions -- the same prosecutions bill sponsors like Wagner claimed would be impossible without this new law.

That wasn't Wagner's only bogus claim. She also claimed the passage of FOSTA resulted in the immediate disappearance of 90% of "sex trafficking ads." This claim was proven false by fact checkers. The vast majority of the ads that vanished did so when Backpage shut down its adult ads prior to FOSTA's passage and prior to the DOJ's prosecution of the site's owners.

So, when Barr applauds Wagner, he's applauding someone who'll say almost anything to justify harmful legislation. This is the kind of person Barr admires because Bill Barr does the same thing, even though he's not writing new bills personally.

Here's some more of the "anything" Barr will say to applaud bad bill-making. Wagner's new thing is a clone of the Senate's "Lawful Access to Encrypted Data" bill. As you can guess by reading the bill's clunky title, it's another attempt to sacrifice encryption on the altar of law enforcement convenience, ensuring cops don't have to work too hard to collect evidence.

As we all are painfully aware, law enforcement agencies -- despite being around for more than 150 years -- have yet to solve a single crime. So it's imperative we give them access to gigabytes of communications and data so they can finally get around to putting a few criminals behind bars. That being said, here's what's being said by Barr in support of this bill. I have no idea what most of this has to do with anything, but it's full of things that sound bad.

The danger is particularly great for children, especially during this time of coronavirus restrictions when children are spending more time online. Survivors of child sexual abuse and their families have pleaded with technology companies to do more to prevent predators from exploiting their platforms to harm children. Unfortunately, these companies have not done enough, which is why this legislation is needed.

Well then. And I thought this administration was going to save kids from child predators by sending them to COVID-infested schools ASAP. But somehow this is the tech companies' fault, since they offer security to all users, even though a small percentage of users engage in criminal acts.

Barr finishes up his applause for Wagner and her LAED knockoff with what can only be a deliberate misreading of the issues at stake.

Privacy and public safety are not mutually exclusive. I am confident that the tech industry can design strong encryption that allows for lawful access by law enforcement. Encryption should keep us safe, not provide a safe haven for predators and terrorists.

The issue isn't privacy. The Constitution may help ensure privacy by limiting the government's intrusion into our lives and homes, but what's really at stake here is security. And security -- of devices and files and communications -- is directly related to public safety. You can't claim to be a champion of public safety when you're willing to make it easier for malicious hackers to gain access to email accounts, personal messages, smartphones, hard drives, computers, social media accounts, and everything else encryption shields from outsiders.

An encryption hole handcrafted for cops is a hole anyone else can use once it's discovered. A backdoor built into hardware or software isn't only going to be exploited by law enforcement. If the assistance is compelled, companies won't be able to patch security issues -- not if the flaw exists to serve the government. Tech companies in Australia -- where compelled technical assistance is already law -- are seeing their customer bases shrink as people look for options that aren't deliberately broken. The same thing will happen here in the US if bills like this become law.

Bill Barr is willing to sacrifice your security. And he won't be giving you anything in return. We won't be safer. We'll be more vulnerable than we've ever been. And Rep. Wagner wants to help him screw you over, just like she did to countless Americans with FOSTA.

Filed Under: ann wagner, backdoors, doj, encryption, fbi, fosta, laed, section 230, william barr

Bill Barr Celebrates New DOJ 'Surge' Targeting Violent Crime By Touting 199 Arrests That Occurred Pre-Surge

from the who-needs-accuracy-when-you-have-a-megaphone dept

Earlier this month, the DOJ announced the launch of "Operation Legend." The operation -- named after four-year-old homicide victim LeGend Taliferro -- targeted cities experiencing spikes in violent crimes, including Kansas City, Missouri, where Taliferro was killed.

Cities may not have been asking for federal interference in their law enforcement efforts, but "help" was on the way, nonetheless.

“President Trump has made clear: the federal government stands ready and willing to assist any of our state and local law enforcement partners across the nation responding to violent crime. Operation Legend will combine federal and local resources to combat the disturbing uptick in violence by surging federal agents and other federal assets into cities like Kansas City, a city currently experiencing its worst homicide rate in its history,” said Attorney General Barr.

The first recipient of the "surge" was Kansas City. And the operation has been more successful than anyone could have imagined.

Attorney General William Barr said Wednesday that 200 arrests had been made in a new federal operation launched in Kansas City.

“Just to give you an idea of what’s possible, the FBI went in very strong into Kansas City and within two weeks we’ve had 200 arrests,” Barr said of the operation, which is sending more than 200 federal agents into the metro area.

Truly remarkable numbers. According to the DOJ, 225 federal agents from the FBI, DEA, ATF, and US Marshals Service had been added to the mix in Kansas City. In just four days, the feds are well on the way to ending violent crime in the city. And they weren't even stepping on local toes to do it:

“These agents won’t be patrolling the streets,” [US Attorney Tim Garrison] said. “They won’t replace or usurp the authority of local officers.”

So, how were the feds racking up 50 federal arrests per day? The answer is: they weren't. In fact, Operation Legend has only resulted in one arrest in four days. A DOJ official cleared up Barr's self-congratulatory statement after no one could find any evidence these 200 arrests had taken place.

The official said Barr was referring to the number of arrests made in the city since the launch of Operation Relentless Pursuit, a precursor effort to Operation Legend that surged federal agents in U.S. cities facing crime waves, including Kansas City.

“We have made since December 2019 200 arrests in Kansas City,” the senior official said, referring to the launch of that initial operation. “Legend is essentially a continuation of that.”

Ah. "Essentially a continuation." I see. Whatever it takes to make sure the top man doesn't sound like a fuck up.

But all schadenfreude aside, there's a problem here. The DOJ's new task forces -- blends of federal officers and agents inserted into cities to make street-level busts -- just isn't a good idea.

The DOJ's response to ongoing protests has been, for the most part, horrifying. It's been officers in camo -- looking for all the world like a branch of the military -- rolling out of unmarked vehicles to grab citizens and haul them away to unknown destinations for questioning. And this scary shit is being deployed for the limited purpose of protecting federal property. Like courthouses. And… um… statues.

This surge may be targeting criminal activity occurring nowhere near the sites of ongoing protests, but that won't make the disappearing of suspects any more acceptable if these agencies continue to operate from unmarked vehicles and roll up on citizens wearing fatigues that don't make it clear who they are or what agency they represent. Even separated from the First Amendment context of the protests, tactics like these aren't what we want from our federal government. Suspected criminals still have rights and a "surge" of officers who appear to feel those are privileges is only going to make the current antipathy towards law enforcement even worse.

Filed Under: dhs, doj, donald trump, kansas city, liar, lies, operation legend, william barr

Why Is The US Trying To Punish Hackers For Accessing Vaccine Research We Should Be Sharing With The World?

from the what-a-stupdendous-waste-of-time dept

Back in May, I wondered why the US was trying to hide vaccine data from the Chinese. In fact, it was bizarre that the US government seemed concerned about Chinese hackers trying to access vaccine data, because why would anyone keep such data secret in the first place. This is a global pandemic and the way you solve a global pandemic is with a global solution, and the way to get there faster (and better) is with the open sharing of information. Hoarding and locking up information regarding a potential vaccine makes no sense at all. And yet, this morning, the DOJ made a big showing of how it had indicted Chinese hackers for trying to hack COVID-19 related research.

The Justice Department on Tuesday accused two Chinese hackers of stealing hundreds of millions of dollars of trade secrets from companies across the world and more recently targeting firms developing a vaccine for the coronavirus.

This is totally performative, as those hackers are in China and the US can't do a damn thing about them, other than allow for Attorney General Bill Barr and FBI Director Chris Wray to grandstand and pretend they're doing something useful. And, again, the really shameful part is the fact that this research is "secret" in the first place.

And, of course, last week we had a repeat of the story from May, except that this time it wasn't "Chinese hackers" trying to get vaccine data, but theoretical Russian hackers:

Russian cyber actors are targeting organizations involved in coronavirus vaccine development, according to a new warning by US, UK and Canadian security officials on Thursday that details activity by a Russian hacking group called APT29, which also goes by the name "the Dukes" or "Cozy Bear."

An advisory published by the UK National Cyber Security Centre (NCSC) details activity by the Russian hacking group and explicitly calls out efforts to target US, UK and Canadian vaccine research and development organizations.

"APT29's campaign of malicious activity is ongoing, predominantly against government, diplomatic, think tank, healthcare and energy targets to steal valuable intellectual property," a press release on the advisory said.

I'm sure within a month or two we'll have another performative press conference from Barr and Wray announcing pointless show charges against Russian hackers as well, because why not?

And, again, rather than recognize that saving and protecting global health is the key priority here, the US government is responding by worrying that others might save the world first. House Minority Leader Rep. Kevin McCarthy is even introducing a bill to "sanction foreign hackers" for trying to get US COVID-19 vaccine information in his somewhat pointless Defend COVID Research from Hackers Act".

The bill is pointless on multiple levels. Foreign hackers are not subject to US jurisdiction, so this wouldn't do anything in the first place. Second, given the indictments announced today, it's not as if law enforcement actually needs greater authority. They seem to have the authority they need to go after hackers. But, (to repeat myself) more importantly, we should be sharing this research widely and getting everyone else to pool their research efforts as well in order to move everyone forward as quickly as possible in order to save as many lives as possible. This isn't a zero sum game where one country "wins" and another "loses." This is about stopping a devastating global pandemic.

As even CNN is admitting, there are no good health reasons for keeping this info secret or worrying about hacks, it's literally a completely wasteful attempt to want to claim bragging rights.

Given the inevitable confusion ahead, getting to the head of the line just does not make sense as an explanation, at least from a financial windfall perspective or a saving lives perspective. But the need to dominate voiced both by Trump and the leader of Russian vaccine efforts, Dmitriev, makes the likely reason for any sneak attack all too clear. It's less about saving the world with a vaccine than about beating the other guy and taking home the first place medal.

What a stupid, stupid reason. Leadership is about doing the right thing even if it makes you look bad. The right thing here is figuring out how to save as many lives as possible and to end the pandemic as quickly as possible. McCarthy's bill would do the opposite of that, and is a total waste of time. I get that it's still driven by the silly belief that everything related to drug discovery must be "owned" and "patented," but actual lives are on the line right now, and Rep. McCarthy should be ashamed that he's wasting time and holding back research, instead of encouraging more open sharing of information.

Filed Under: china, chris wray, covid-19, hacking, information sharing, innovation, kevin mccarthy, patents, russia, sharing, vaccines, william barr

Barr DOJ Weaponized Antitrust To Launch Flimsy Inquiries Into Legal Weed Companies

from the ill-communication dept

We've long noted how Bill Barr, a former Verizon lawyer (and forefather of our domestic surveillance apparatus) isn't a big fan of this whole "rule of law" thing. It had already been established that he'd been wielding the DOJ's antitrust authority as a personal Trump bludgeon, using it to launch capricious, unnecessary probes (the whole short-lived and nonsensical inquiry into California automaker emissions), and prop up the interests of companies willing to kiss Trump's ass voraciously enough (the decision to rubber stamp the Sprint/T-Mobile merger while ignoring all objective data).

But in testimony this week before Congress, longtime agency employee turned whistleblower John Elias made it very clear that it's all dumber and worse than we had previously known. The cornerstone of his testimony (pdf) involved noting that Bill Barr and DOJ antitrust boss Makan Delrahim routinely ignored staff advice and waged all manner of vindictive, facts-optional, politically motivated assaults on industry under the auspices of "antitrust."

Barr's biggest target appears to be the legal marijuana industry, investigations into which consumed upwards of 29% of agency resources. In many instances, he notes, Barr's DOJ launched inquiries into marijuana companies and smaller mergers that in no way posed competitive or monopolistic threats. In many instances, the merging companies didn't even compete with one another. Yet the inquiries pulled agency resources from investigations into, you know, actual monopolies:

"At one point, cannabis investigations accounted for five of the eight active merger investigations in the office that is responsible for the transportation, energy, and agriculture sectors of the American economy. The investigations were so numerous that staff from other offices were pulled in to assist, including from the telecommunications, technology, and media offices.

Reminder: most objective experts noted that the T-Mobile Sprint merger was a terrible idea, inevitably resulting in less competition, higher prices, and layoffs. The DOJ not only ignored its own staff's advise to block the deal, Delrahim personally helped usher the deal to completion via his personal email and text messaging accounts. Every last shred of objective data showing the deal was a bad idea was ignored. What wasn't ignored? Small legal weed companies that were targeted simply because King Dingus (and likely evangelicals, and the pharmaceutical and alcohol lobby) don't much like legalized marijuana.

In his testimony, Elias makes it clear that Delrahim's staff are frequently and fully aware that these inquiries are baseless bullshit:

"The head of the Antitrust Division, Assistant Attorney General Delrahim, responded to internal concerns about these investigations at an all-staff meeting on September 17, 2019. There, he acknowledged that the investigations were motivated by the fact that the cannabis industry is unpopular “on the fifth floor,” a reference to Attorney General Barr’s offices in the DOJ headquarters building. Personal dislike of the industry is not a proper basis upon which to ground an antitrust investigation.

You don't say. Elias, throughout his testimony, also very politely makes it clear that the DOJ's antitrust responsibilities have been hijacked to cater to the daily Trump brain fart du jour, perfectly represented by the dumb and now defunct California emissions effort:

"When news of the investigation became public and spread within the Antitrust Division, many of my colleagues, who are familiar with the “state action” defense as well as the NoerrPennington doctrine, questioned why the Division was investigating conduct that appeared to be prompted by a state regulator. In response to criticism of the investigation, on September 11, AAG Delrahim circulated an all-Division email in which he stated that he “strongly believe[s] that the Division has a basis to investigate and that the standards for opening a preliminary investigation were more than satisfied based on the available facts.” AAG Delrahim simultaneously announced an all-staff town hall meeting for September 17. There, he stated that staff was not rushed into initiating the investigation. That representation conflicted with the recollection of a staff member who had assisted with the opening memorandum."

Keep in mind, this is the same Barr DOJ many journalists and "experts" somehow believe will not only conduct a fair inquiry into giants like Google, but will deliver valid, good faith remedies for the very real problems Google helped create (as opposed to say problematic remedies focused on aiding aspiring Google ad competitors like AT&T, Comcast, and Verizon).

Like so many policy subjects (the environment, encryption, an open internet, police brutality, on and on and on...) Trump arrived at the worst possible time for a litany of reform efforts. That's doubly so for the government's antitrust authority, which has been steadily eroded for years and is in dire need of meaningful reform in the Amazon era. Instead we get... whatever the fuck this is supposed to be.

Filed Under: antitrust, automobiles, doj, marijuana, politics, retaliation, william barr

Senators Launch Full On Nuclear War Against Encryption: Bill Will Require Broken Encryption, Putting Everyone At Risk

from the stop-pushing-this-bullshit dept

Another day, another bad bill. Just as we're coming to terms with the EARN IT Act moving forward in Congress, three Senators -- Lindsey Graham, Tom Cotton, and Marsha Blackburn -- have announced a direct attack on encryption. The full bill is here. It's 51 pages of insanity that would effectively destroy privacy and security on the internet. This is five-alarm fire bad.

For what it's worth, Graham is also a co-sponsor of the EARN IT Act, which makes me wonder if he's going to agree to an amendment of EARN IT that keeps encryption out of it while pushing this bill instead. That's now the rumor making the rounds, and I even received a press release from an anti-porn activist group supporting this bill because they think it will help clarify that EARN IT won't end encryption (none of that makes sense to me either, but...)

The announcement of the bill includes all the usual "think of the children" nonsense, claiming that we can't have encryption because some bad people might use it for bad stuff. The press release summarizes what they claim the bill will do:

Highlights of the Lawful Access to Encrypted Data Act:

• Enables law enforcement to obtain lawful access to encrypted data.

• Once a warrant is obtained, the bill would require device manufacturers and service providers to assist law enforcement with accessing encrypted data if assistance would aid in the execution of the warrant.
• In addition, it allows the Attorney General to issue directives to service providers and device manufacturers to report on their ability to comply with court orders, including timelines for implementation.

• The Attorney General is prohibited from issuing a directive with specific technical steps for implementing the required capabilities.
• Anyone issued a directive may appeal in federal court to change or set aside the directive.
• The Government would be responsible for compensating the recipient of a directive for reasonable costs incurred in complying with the directive.

Incentivizes technical innovation.

• Directs the Attorney General to create a prize competition to award participants who create a lawful access solution in an encrypted environment, while maximizing privacy and security.

Promotes technical and lawful access training and provides real-time assistance.

• Funds a grant program within the Justice Department’s National Domestic Communications Assistance Center (NDCAC) to increase digital evidence training for law enforcement and creates a call center for advice and assistance during investigations.

In short, this basically says "break encryption, but we won't tell you how." We're right back to "nerd harder" except that this time it's "nerd harder, or you're breaking the law."

The problems with this should be evident from all the times we've discussed this before, so I'm really not interested in going over it all again. But the quick summary: installing a "backdoor" or "lawful access" to encrypted communications is not a simple technical problem. As cryptography expert Matt Blaze once said, it's like saying "well, if you can land a man on the moon, why can't you land a man on the sun." A backdoor to encryption literally breaks the encryption and opens up a huge host of other problems, none of which are readily solvable. Instead, you just find more and more problems, each of which makes everyone less secure.

The actual text of the bill is even worse than the summary. It's crazy long so I won't do a full breakdown here, but will call out a few scary, scary bits. The key part is that this basically requires the end of encryption. While there is some language early on about it not applying if "technically impossible," there is other language that more or less cancels that out. Specifically, it requires Apple and other large device sellers to backdoor encryption. It is not an option, but a requirement:

DEVICE MANUFACTURERS.—A device manufacturer that sold more than 1,000,000 consumer electronic devices in the United States in 2016 or any calendar year thereafter, or that has received an assistance capability directive under section 3513, shall ensure that the manufacturer has the ability to provide the assistance described in subsection (b)(2) for any consumer electronic device that the manufacturer—

‘‘(A) designs, manufactures, fabricates, or assembles; and ‘‘(B) intends for sale or distribution in the United States.

So, if you sell more than a million consumer electronic devices in the US, you are required to make sure they have backdoors. That's... going to be a LOT of backdoors. Every Alexa device. Every smart TV. And, of course, every phone. That's devices. How about apps and services? More of the same:

PROVIDERS OF REMOTE COMPUTING SERVICE; OPERATING SYSTEM PROVIDERS.—A provider of remote computing service or operating system provider that provided service to more than 1,000,000 subscribers or users in the United States in 2016 or any calendar year thereafter, or that has received an assistance capability directive under section 3513, shall ensure that the provider has the ability to provide the assistance described in subparagraphs (A) and (B) of subsection (b)(2) for any remotely stored data that the provider processes or stores.

That's... a lot of websites that will be barred from using real end-to-end encryption. The "shall ensure" part is what should scare everyone.

That's still talking about data stored on those servers though. As for "data in motion" again, services will have to provide backdoors under this bill. The reference to "technically impossible" only seems to apply to "independent actions of an unaffiliated entity that make it technically impossible to do". So, the only way to avoid having to break encryption on your own services is to... outsource it to an unaffiliated entity who can make it impossible for you to break the encryption?

As for messaging services: again, the bill "shall ensure" assistance:

A provider of wire or electronic communication service that had more than 1,000,000 monthly active users in the United States in January 2016 or any month thereafter, or has received an assistance capability directive under section 3513, shall ensure that the provider has the ability to provide the information, facilities, and technical assistance described in section 2518(4).

And it gets worse. The bill allows the Attorney General to order someone to break encryption:

If a person fails to comply with a directive issued under subsection (b), the Attorney General may file a petition for an order to compel the person to comply with the directive in the United States District Court for the District of Columbia, which shall have jurisdiction to review the petition.

There's also a giant "NERD HARDER" section, which explains Bill Barr's comments above. Basically it creates a contest, run by the Attorney General, to create a type of backdoored encryption where the Attorney General and his hand-picked judges will determine which technology wins. And by "wins" I mean loses, because that technology will be broken in no time at all, putting everyone at risk.

This whole thing is so incredibly dangerous, and it's not even clear that encryption is a real problem for law enforcement. The basic cost-benefit analysis here is that this law would put everyone, and all our communications, at risk of attack, for a possible benefit in a tiny number of cases, where there remains no evidence that a backdoor would have helped stop any crime. I can't see how the tradeoff is worth it, and any elected official pushing this nonsense should be asked to explain how they weigh these costs and benefits. And if they answer like Bill Barr by saying "smart techies can figure it out" they should have their views discounted for being idiots.

Meanwhile, the press release leads off with quotes from the three sponsors, all of which are head-bangingly wrong, but designed to do the usual tugging at the emotional strings rather than any actual recognition of what they're pushing here:

“Terrorists and criminals routinely use technology, whether smartphones, apps, or other means, to coordinate and communicate their daily activities. In recent history, we have experienced numerous terrorism cases and serious criminal activity where vital information could not be accessed, even after a court order was issued. Unfortunately, tech companies have refused to honor these court orders and assist law enforcement in their investigations. My position is clear: After law enforcement obtains the necessary court authorizations, they should be able to retrieve information to assist in their investigations. Our legislation respects and protects the privacy rights of law-abiding Americans. It also puts the terrorists and criminals on notice that they will no longer be able to hide behind technology to cover their tracks,” said Graham.

There remains little evidence that terrorists have been able to communicate without law enforcement being able to access the info. Remember, the FBI flat out lied about how many devices it had in its possession that it couldn't get into, and has since refused to give an updated number (despite multiple requests). At the same time, every time the FBI does come out and point to a situation where it can't get into a phone, a few months later, they seem to admit that, well, actually, there was a technology that let them get in.

On top of that, we've discussed how law enforcement and the FBI have access to so much other information thanks to social media, and various open source intelligence tools, that the idea that they need to attack encryption is just ridiculous.

And that leaves out something else too: if we put backdoors into encryption, guess what will become a huge target for "terrorists and criminals"? That's right: all of our communications.

“Tech companies’ increasing reliance on encryption has turned their platforms into a new, lawless playground of criminal activity. Criminals from child predators to terrorists are taking full advantage. This bill will ensure law enforcement can access encrypted material with a warrant based on probable cause and help put an end to the Wild West of crime on the Internet,” said Cotton.

This is just a joke. The internet is not "lawless" and there's no indication of increased criminal activity, nor any evidence that law enforcement cannot solve crimes because of encryption or the internet. This bill won't ensure anything other than opening up a new avenue for terrorists and criminals to terrorize.

“User privacy and public safety can and should work in tandem. What we have learned is that in the absence of a lawful warrant application process, terrorists, drug traffickers and child predators will exploit encrypted communications to run their operations,” said Blackburn.

Yes, user privacy and public safety do work in tandem. But you know would would ruin that? Breaking encryption and throwing both of those things into the gutter.

This bill should be trashed and these three Senators (and the Attorney General) deserve mockery for a technically ignorant, totally clueless and dangerous bill that would harm Americans and destroy both privacy and security, because some law enforcement agencies are too lazy to do their jobs. Frankly, the intelligence community should come out screaming about this bill as well, as they know full well how much more dangerous this will make their own work. This is a ridiculous attack on the internet.

Filed Under: backdoors, doj, earn it, encryption, fbi, going dark, laed, lindsey graham, marsha blackburn, tom cotton, william barr

Trump, DOJ Claim ANTIFA, Other Extremists Are Hijacking Protests. DOJ Filings Show No Link To Outside Groups.

from the all-narrative,-no-facts dept

The Trump Administration has decided to give cops a pass on killing black people. Wait. Hear me out. The Blue Lives Matter administration began its term by declaring war on the general public if it refused to lick boot properly. And now ANTIFA is behind the riots and looting seen around the country.

On June 9th, the President tweeted that the elderly man shoved to the ground by Buffalo (NY) police officers could be an "ANTIFA provocateur." The president cited facts not in evidence: a One America News piece of speculative fiction delivered by its in-house double agent -- a reporter who also has written for Russian state-affiliated media outfit, Sputnik.

Bill Barr echoed these sentiments, claiming violent extremists were infiltrating protests, apparently making the underlying protests unmeaningful.

With the rioting that is occurring in many of our cities around the country, the voices of peaceful and legitimate protests have been hijacked by violent radical elements. Groups of outside radicals and agitators are exploiting the situation to pursue their own separate, violent, and extremist agenda.'

Barr said that there is evidence that those extremists include Antifa and other groups of different political persuasions, as well as “foreign actors playing all sides to exacerbate the violence.”

FBI Director Christopher Wray elaborated on this, noting that "these individuals have set out to sow discord and upheaval."

This echoed what a senior Justice Department official told Fox News Wednesday about how the feds have seen signs of "very organized" coordination from "professional" agitators, some linked to Antifa.

The DOJ may be publicly supporting these wild-ass claims by administration officials (one of which is the President of the United States), but there's nothing in the paperwork to support these allegations. The front mouths may be frothing about ANTIFA hijackings but for all their efforts, they haven't found anything to corroborate their wishful thinking. Ryan Lucas of NPR has the receipts.

NPR has reviewed court documents of 51 individuals facing federal charges in connection with the unrest. As of Tuesday morning, none is alleged to have links to the antifa movement.

Of the cases brought so far, 20 involve allegations related to arson; 16 involve the illegal possession of a firearm, more often than not by a felon; another eight people face charges related to inciting a riot or civil disorder.

There is one case linked to an "extremist" movement, though. Three Nevada men facing criminal charges are allegedly part of the "Boogaloo" movement, which advocates -- usually impartially -- for violently overthrowing the government and engaging in another civil war of us (the people) vs. them (the government).

Unfortunately, this isn't the narrative that plays to the voting base, so it's been ignored by Bill Barr and President Trump in order to present protests against police violence as opportunistic anarchism meted out by far left extremists opposed to the current administration. Not that the facts matter. Bill Barr is still insisting this is probably an ANTIFA thing, even when there appears to be no evidence backing his claims.

In his Fox interview, Barr repeated his assertion that an array of extremist groups has been instigating the violence, although he did — as he has repeatedly since the unrest over Floyd's death began — single out antifa as the primary culprit.

Investigations are, of course, ongoing. And they will presumably continue until the DOJ satisfies Barr's unofficial directive. That's why extremely stupid things are happening, like the FBI trying to talk a random twitter user into becoming an informant after he jokingly told the FBI he was a regional ANTIFA director.

There's a narrative being pushed here and it's one designed to focus law enforcement attention on the president's perceived enemies -- not anyone currently endangering lives/buildings with criminal acts. It's meant to recast demonstrations against police violence as fronts for violent extremists. The Trump Administration is trying to neutralize something it can't ever hope to fully control. Pretending this is all about ANTIFA allows the administration to pretend it isn't part of the problem.

Filed Under: antifa, arrests, donald trump, propaganda, protests, william barr

So Wait, People Really Think The Barr DOJ's Investigation Into Google Is In Good Faith?

from the bad-faith-clown-show dept

Late last week, news emerged that the DOJ would likely be bringing a massive antitrust lawsuit against Google. Reports suggest this is the culmination of a full year of saber rattling by Bill Barr, who has made "antitrust inquiries" into "big tech" a top priority at the DOJ:

"the DOJ's antitrust inquiries into Google, Facebook and other Silicon Valley powers has become a priority for Attorney General William Barr, who has asserted greater control of the probes and has said he wants to make a decision on Google by the summer."

The news was quickly met with celebration by numerous folks, many of whom have correctly noted that US antitrust enforcement has become toothless and frail, and our dated definitions of monopoly need updating in the Amazon era. The announcement was also highly celebrated by a litany of folks eager to see Google's domination of search, advertising, and other sectors disrupted -- for both justified and competitive reasons.

Oddly, much of the coverage of the DOJ's potential antitrust case operated under the premise that Barr's efforts are being conducted in good faith, and might actually result in useful remedies at the end of the battle. The problem with that assertion is multi-fold. One, Bill Barr just got done making it abundantly clear his DOJ isn't actually interested in the rule of law. The Trump DOJ has also made it abundantly clear it's not above weaponizing antitrust for petty grievances, as we saw with the ridiculous lawsuit against California over vehicle emissions.

Barr's DOJ also isn't what you'd call consistent on antitrust and monopoly enforcement, either.

Barr's DOJ, for example, just got done rubber stamping the $26 billion merger between T-Mobile and Sprint, despite a laundry list of warnings from economists that concentration in the telecom sector would reduce competition, raise rates, lower overall sector pay, and result in up to 20,000 to 30,000 job losses. Yet DOJ antitrust boss, Makan Delrahim, not only rubber stamped the deal without listening to experts, he used his personal phone and email accounts to help ensure deal approval. That is what "antitrust enforcement" looks like at Donald Trump and Bill Barr's DOJ.

The DOJ's lawsuit to hamper the AT&T Time Warner lawsuit was also treated with furrowed brow seriousness by the press, despite it being well out of character for a Trump administration that generally panders to AT&T, has a less than zero interest in consumer protection, and usually has no problem with industry consolidation -- provided you're an ally of the administration. There's ample indication the DOJ's lawsuit was driven by Trump's disdain for CNN and his ally Rupert Murdoch, who saw two attempts to buy CNN rebuffed by AT&T and had been working overtime to scuttle the deal for competitive reasons.

Why is monopolization in telecom and other sectors ok, and monopolization in Silicon Valley not ok? Because, as we've noted previously, much of the Barr DOJ's sudden, uncharacteristic interest in "policing monopolies" is being driven by the telecom sector (Barr you'll recall used to be Verizon's General Counsel). Giants like Comcast, Verizon, and others have been hungrily eyeing Silicon Valley's stranglehold over advertising revenues for the better part of the last fifteen years, and there's absolutely no doubt in my mind they're driving a lot of the anti "big tech" animosity you're seeing from the likes of Bill Barr and Marsha Blackburn, whose interest in consumer protection, level playing fields, monopolies, or consolidation is utterly nonexistent on any other Sunday.

A desire for stronger antitrust enforcement or concern for monopoly domination isn't what's driving the Barr DOJ here, and press outlets assuming this is a good faith effort are clowning themselves. It's being driven by telecom sector allies and Trump pals like Rupert Murdoch, who are eager to boost their own advertising market share. It's also being driven by heaps of partisan nonsense about how Conservatives are being "censored by big tech," which as we've documented repeatedly isn't based on anything remotely resembling reality.

None of this is to say that there aren't very obvious monopolistic problems Google presents that need addressing. And the separate antitrust inquiry by state AGs (expected this fall) is far more likely to be conducted in good faith, even though there too you have a lot of AGs that were just fine with monopolization in sectors like telecom. But anybody who thinks the Barr DOJ's effort in particular is driven by a genuine interest in reining in monopoly power simply hasn't been paying attention.

Filed Under: antitrust, big tech, competition, doj, internet, william barr
Companies: facebook, google