New Indictment Tries To Tie Julian Assange To A Hacking He Had Nothing To Do With

from the several-versions-of-truth-and-this-one-is-the-DOJ's dept

The government is still trying to get Julian Assange out of the UK so it can ring him up on a variety of charges related to obtaining and publishing a large number of sensitive documents. Most of the charges are still related to the documents obtained from Chelsea Manning. The DOJ wants to use the oft-abused CFAA to put Assange behind bars because he supposedly helped Manning hack a CIA database.

Another indictment [PDF] has been issued by the DOJ, making this its third attempt to throw the book at Assange. If the DOJ can prove Assange contributed to hacking attempts, it may end up with a case worth pursuing. But much of what the indictments deal with is normal journalism behavior: the cultivation of sources and the encouragement of sources to locate/leak newsworthy documents. The blurry line the DOJ is walking on is the same line the previous administration seemed to feel wasn't worth crossing, no matter how much harm/embarrassment Assange had caused with the release of sensitive documents.

The latest indictment expands the government's espionage theories. The government's second superseding indictment deals with Assange's alleged "unlawful overt acts:" the hacking attempts supposedly made targeting Defense Department computers, possibly with the aid of Chelsea Manning and other Wikileaks associates.

Much of this expanded narrative seems to rely on the input of FBI informants, including Sigurdur Thordarson, who was convicted twice for sex with minors after he began working for the FBI in 2011. Sketchy contributors aside, there are some major omissions in the government's narrative.

First, as Dell Cameron points out for Gizmodo, the indictment casually ignores the government's contribution to cyber attacks on American businesses located overseas, as well as some foreign government targets. But there is a significant omission in the new indictment. And the purpose of this crucial admission appears to be an attempt to link Assange to a data breach he never participated in.

A section of the indictment titled “Sabu, Hammond, and ASSANGE” begins on the date December 25, 2011, and refers to an attack on servers belonging to a private firm identified only as “Intelligence Consulting Company.” This is obviously Stratfor, the Austin-based private intelligence company whose millions of pilfered emails comprise the WikiLeaks drop known as the Global Intelligence Files.

DOJ omits several crucial details about the Stratfor hack in its attempts to name Assange as a conspirator in a breach that happened without his knowledge. Most notably, prosecutors exclude that the actual breach of Stratfor’s security, in late 2011, occurred 83 days prior to the events they describe, unknownst by anyone DOJ identifies as part of the conspiracy, including Assange.

Assange and Wikileaks may have helped distribute the documents obtained in the breach and there does appear to be evidence Assange provided the hackers with some tools for searching the stash of five million emails, but there's nothing in the indictment that ties Assange to the underlying hacking. The only thing in the indictment is stuff the DOJ is generously calling "evidence."

At best, these are copies of exchanges taken from chat rooms in which a user claims to be Assange, which is not likely to hold up in court.

To be sure, indictments are often a pile of helpful omissions designed to speedily initiate prosecutions. But the more the government adds to its accusations, the more glaring its omissions become. This case was already problematic -- willing to walk right up to the First Amendment and dare it to do something about it. Now it's become more farcical, with the government accusing someone of doing something it appears clear they didn't do and bolstering it with half-truths about the FBI's own involvement in malicious hacking efforts.

Filed Under: cfaa, doj, extradition, hacking, indictment, julian assange, leaks
Companies: stratfor, wikileaks

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

DOJ Finally Uses FOSTA, Over Two Years Later... To Shut Down A Site Used By Sex Workers

from the worth-it? dept

For years leading up to the passage of FOSTA, we were told that Congress had to pass the law as quickly as possible because so many women were "at risk" due to trafficking. And when asked for evidence of this, people would point to Backpage, even though the site had shut down its "adult" section under pressure from Congress a year earlier. Of course, the actual stats that were provided turned out to be fake and Backpage was seized before the law was even passed. The charges against the founders did not include sex trafficking charges. Also, as the details have come out about Backpage, it's become evident that rather than facilitating sex trafficking, the company was actively working with law enforcement to find and arrest sex traffickers. However, where they started to push back on law enforcement was when law enforcement wanted to go after non-trafficked sex workers.

However, with all of the moral panic around the need to pass FOSTA, we highlighted earlier this year that two years had gone by and the DOJ had not used the law a single time to go after any "sex trafficking" site. Instead, as we predicted, the law was being used in nuisance lawsuits, such as mailing list provider MailChimp and CRM provider Salesforce because Backpage had used those services.

Finally, last week, however, the DOJ made use of FOSTA in shutting down a website and arresting its operator. A site called CityXGuide.com (and some other sites that it ran -- including one with a name similar to Backpage) were seized, and the guy who ran it, Wilhan Martono, was arrested in California. From the details provided, it does look like Martono saw an opportunity to jump into the market vacated by Backpage, and the charges claim that he brought in $21 million doing so.

The original indictment was done in early June, but it was only just unsealed with Martono's arrest and the seizure of the various websites. It does seem clear that Martono sought to be the source for advertising sex work, but the DOJ conveniently mashes together sex work and sex trafficking, because that's the kind of thing law enforcement likes to do.

Indeed, the immediate reaction to this appears to be that plenty of non-trafficked sex workers, who previously had relied on Backpage to remain safe and now relied on Martono's sites, are again put in danger. The Hacking/Hustling collective -- a group of sex workers who came together to advocate around issues such as FOSTA -- put out a press release calling out what a stupid, counterproductive move this is:

“When we are re-envisioning public safety, this is a perfect example of why we can’t exempt human trafficking. Instead of resources going to real investigations or victim support, you have six agencies spending time and resources reading ads and looking for the word ‘blow job’” said Lorelei Lee, a collective member of Hacking//Hustling.

I was going to link to another website that has a blog advocating for sex workers' rights that explained in great detail how this puts sex workers at danger, but honestly, under a broad interpretation of FOSTA, linking to that website might violate the law. That's because after reading the blog post, I saw that there was a link to a "find escorts" site associated with the blog, and while I think I should be able to link to such a blog post, with its cogent explanation for why this DOJ action puts women at risk... merely linking to it would put me at risk under a broad reading of FOSTA (a stupid, unconstitutional reading, but, alas, these are some of the chilling effects created by the law).

Either way, it's difficult to see how this does anything to stop actual sex trafficking. Indeed, again, it's likely to put victims at even greater risk -- while also putting sex workers at greater risk. Studies have shown that when these sites go down, more women are put at risk. Even worse, as noted, Backpage actually helped law enforcement track down and arrest traffickers. But by making everything else such sites do illegal, it appears that (obviously) Martono avoided helping law enforcement at all (the indictment suggests he ignored various subpoenas).

Again, this is exactly as tons of people predicted. When these ads were appearing on places like Craigslist and Backpage, those companies worked closely with law enforcement to go after actual traffickers, and get them arrested. But now, with things like FOSTA, rather than do that, law enforcement can just... take down the best source to find and track down traffickers, pushing them to sites that are less and less likely to help law enforcement? How does that make sense. Indeed, we've covered a number of law enforcement officials saying that the shutdown of Backpage has made it more difficult to find actual traffickers.

And, if you want any more evidence of that: note that nowhere with this announcement is there anything about arresting any actual traffickers. I have a request in to the DOJ asking if they or any law enforcement have arrested any actual traffickers who used these sites -- but at the time of publishing they have not responded. The indictment claims -- somewhat salaciously -- that the sites seized were used to identify "numerous victims of child sex trafficking," including a "13-year-old Jane Doe." Obviously, it's horrific to find out about that Jane Doe or any victim of sex trafficking, but it does seem odd that there is no mention of any arrests of the traffickers.

Because... wouldn't arresting actual traffickers be the goal here?

Either way, this story is getting buzz on Twitter from two communities: sex workers who are pissed off and angry that they're now losing business and the ability to operate safely... and... believers in the ridiculous Q anon nonsense conspiracy theory, who believe that everything going on in the world is a plot to cover up child sex trafficking. To them, this is evidence that the big promised crackdown on sex trafficking rings has begun. Of course, the lack of any actual arrests for actual sex trafficking kinda suggests that's not the goal here.

Still, this whole thing allowed FOSTA co-author Senator Rob Portman to take a victory lap. Someone should ask him why he's celebrating putting women at risk -- or at least ask him where the arrests are for actual sex trafficking.

Filed Under: doj, fosta, section 230, sex trafficking, sex workers, wilhan martono
Companies: backpage, cityxguide

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

Justice Department Releases Its Own Preposterous Recommendations On Updating Section 230

from the guys,-what? dept

Because today wasn't insane enough, just hours after Senator Josh Hawley released his ridiculous bill to flip Section 230 on its head and turn it from a law that protects against frivolous lawsuits into one that would encourage them, the Justice Department has released recommendations for Section 230 reform that appear to have been written by people who haven't the first clue about how content moderation works online.

Professor Mark Lemley sums it up best:

One of the things many have pointed out about the "bipartisan" hatred for Section 230 is that each party hates it for opposite reasons. That is, Republicans are mad that sites are taking down too much content, while Democrats are mad that not enough content is being taken down. And they both (incorrectly) blame Section 230 for "enabling" that situation.

The DOJ's attempt to thread the needle on this is saying that sites should both take down more and less content at the same time. No, seriously. First, the DOJ says that platforms should be liable for lots of content on their platform if they don't magically stop it:

Incentivizing Online Platforms to Address Illicit Content

The first category of recommendations is aimed at incentivizing platforms to address the growing amount of illicit content online, while preserving the core of Section 230’s immunity for defamation claims. These reforms include a carve-out for bad actors who purposefully facilitate or solicit content that violates federal criminal law or are willfully blind to criminal content on their own services. Additionally, the department recommends a case-specific carve out where a platform has actual knowledge that content violated federal criminal law and does not act on it within a reasonable time, or where a platform was provided with a court judgment that the content is unlawful, and does not take appropriate action.

Then, on the flip side, the DOJ wants to make sure that platforms don't take down too much (read: "silence nazis who support President Trump") because [reasons].

Promoting Open Discourse and Greater Transparency

A second category of proposed reforms is intended to clarify the text and revive the original purpose of the statute in order to promote free and open discourse online and encourage greater transparency between platforms and users. One of these recommended reforms is to provide a statutory definition of “good faith” to clarify its original purpose. The new statutory definition would limit immunity for content moderation decisions to those done in accordance with plain and particular terms of service and consistent with public representations. These measures would encourage platforms to be more transparent and accountable to their users.

The specifics of how they want these two things done are utter nonsense. In order to force more taking down of "bad" content, the DOJ literally says that "bad actors" no longer get 230.

Bad Samaritan Carve-Out. First, the Department proposes denying Section 230 immunity to truly bad actors. The title of Section 230’s immunity provision—“Protection for ‘Good Samaritan’ Blocking and Screening of Offensive Material”—makes clear that Section 230 immunity is meant to incentivize and protect responsible online platforms. It therefore makes little sense to immunize from civil liability an online platform that purposefully facilitates or solicits third-party content or activity that would violate federal criminal law.

But what does that even mean? The "facilitates" bit in there is what's problematic -- and that's the same language we've already seen in FOSTA, which has created massive collateral damage and frivolous lawsuits against CRM and mailing list software providers. Does offering up some mailing list software that might be used for criminal activity make you a "bad" actor?

Then there's a further FOSTA-like expansion, carving out exceptions beyond sex trafficking to include "child abuse, terrorism, and cyber-stalking."

Second, the Department proposes exempting from immunity specific categories of claims that address particularly egregious content, including (1) child exploitation and sexual abuse, (2) terrorism, and (3) cyber-stalking. These targeted carve-outs would halt the over-expansion of Section 230 immunity and enable victims to seek civil redress in causes of action far afield from the original purpose of the statute.

Again, as we've seen with FOSTA, this expansion is only being use so far for frivolous cases -- and that would definitely be the case here as well. We've already seen a ton of totally frivolous "let's blame Twitter and Facebook for terrorists" lawsuits, all of which are getting thrown out on 230 grounds. The DOJ's proposed legislation would bring those right back -- allowing people who were killed by terrorists... to sue Twitter. Because, why, now?

Then the DOJ says that the entire setup of 230 should be changed:

Third, the Department supports reforms to make clear that Section 230 immunity does not apply in a specific case where a platform had actual knowledge or notice that the third party content at issue violated federal criminal law or where the platform was provided with a court judgment that content is unlawful in any respect.

That's like the whole point of 230. All this would do is turn 230 into a "notice-and-takedown" statute, because as soon as you received notice of any alleged issue, you'd risk liability if you kept it up. We've already seen how that works in the DMCA context, in which tons and tons of perfectly lawful speech is taken down just to avoid liability. This is a proposal for widespread censorship (which is ironic, given that the DOJ claims part of its goal is to try to encourage less silencing of voices).

On that front, the proposals are equally uninformed.

First, the Department supports replacing the vague catch-all “otherwise objectionable” language in Section 230(c)(2) with “unlawful” and “promotes terrorism.” This reform would focus the broad blanket immunity for content moderation decisions on the core objective of Section 230—to reduce online content harmful to children—while limiting a platform's ability to remove content arbitrarily or in ways inconsistent with its terms or service simply by deeming it “objectionable.”

It's important to note that nearly all of the litigation on Section 230 has focused on (c)(1) and not (c)(2), but whiny conservatives who insist that sites are "censoring" them really hate the "otherwise objectionable" language, because it makes it clear that sites have the right to moderate how they see fit. Wiping that out is bizarre, because it would suddenly exempt things like spam filtering from Section 230.

Second, the Department proposes adding a statutory definition of “good faith,” which would limit immunity for content moderation decisions to those done in accordance with plain and particular terms of service and accompanied by a reasonable explanation, unless such notice would impede law enforcement or risk imminent harm to others. Clarifying the meaning of "good faith" should encourage platforms to be more transparent and accountable to their users, rather than hide behind blanket Section 230 protections.

This is similar to Hawley's proposal, and raises serious 1st Amendment questions. The government cannot and should not be determining whether editorial decisions are made in "good faith."

Then there's the funniest part of the DOJ proposal. Because everyone who understands anything about how content moderation works has pointed out that all of these kinds of changes would create a true "moderator's dilemma" (no liability if you don't look, so you don't want to look, or if you look you feel the need to heavily moderate everything to avoid liability), the DOJ just says "oh yeah, add in something saying there's no moderator's dilemma." Really.

Explicitly Overrule Stratton Oakmont to Avoid Moderator’s Dilemma. Third, the Department proposes clarifying that a platform’s removal of content pursuant to Section 230(c)(2) or consistent with its terms of service does not, on its own, render the platform a publisher or speaker for all other content on its service.

But none of that fixes all of the other parts of the moderator's dilemma created by this very proposal.

Separate from those two major prongs, the proposed reform hits on two other points, both of which are kind of odd. First, it says it would open up civil enforcement actions from the federal government, making them exempt from Section 230 as well. Already, federal criminal law is exempt, but by exempting civil enforcement, it could allow for things like the FTC to go after websites for... something based on user content? It's not entirely clear how that would play out. And then it says that federal antitrust law is not covered by 230, which... seems like an odd thing to call out. I guess the focus here is on whether or not the government could make an antitrust claim on moderation choices (so, for example, if Apple or Google blocked a competitor from being in their app stores). The specifics of such a proposal would matter, so it's not clear how big a deal that might be at a first glance.

All in all, the DOJ proposal is, at the very least, craftier than Hawley's silly proposal. But when looked at together, its attempt to thread the needle of the "too much moderation/not enough moderation" debate is one that will only make things much worse, and not solve any of the actual problems online. But it may be a field day for lawsuits, and maybe that's the point: let's punish Silicon Valley with a ton of lawsuits, just because we can.

Filed Under: bias, content moderation, doj, good faith, intermediary liability, otherwise objectionable, section 230, terrorism

eBay Execs Thought Sending Dead Pigs, Live Spiders To Small News Website Was A Good Idea

from the utterly-batshit dept

Pop quiz: a couple publishes a relatively small news website critical of your massive and hugely profitable corporation.

Do you:

Apparently if you're employed at eBay, the answer is an enthusiastic C. Six (now former) executives and employees of eBay are facing federal charges after they participated in massive, grotesque harassment campaign targeting the publishers of a small news outlet (Ecommercebytes.com, published by David and Ina Steiner) critical of eBay. Said harassment campaign included sending porn to the Steiners' neighbor under their name, and also sending them live spiders, bloody pig masks, cockroaches, and even a dead pig fetus. Why? They were upset by both the newsletter and anonymous commenters:

"Members of the executive leadership team at eBay followed the newsletter’s posts, often taking issue with its content and the anonymous comments underneath the editor’s stories. It is alleged that in August 2019, after the newsletter published an article about litigation involving eBay, two members of eBay’s executive leadership team sent or forwarded text messages suggesting that it was time to “take down” the newsletter’s editor.

In response, Baugh, Harville, Popp, Gilbert, Zea, Stockwell, and others allegedly executed a three-part harassment campaign. Among other things, several of the defendants ordered anonymous and disturbing deliveries to the victims’ home, including a preserved fetal pig, a bloody pig Halloween mask, a funeral wreath, a book on surviving the loss of a spouse, and pornography – the last of these addressed to the newsletter’s publisher but sent to his neighbors’ homes."

These weren't all low level employees, either. They included eBay’s senior manager of global intelligence, a manager of eBay's global intelligence center (GIC), a contractor who worked as an intelligence analyst within the GIC, and a senior manager of special operations for eBay’s global security team --and a former cop. In short, all folks who should have known better. And if you spend some time reading the articles at the newsletter in question, it appears to be just a largely polite trade mag. That it set these executives off to such a degree is just bizarre.

U.S. Attorney Andrew Lelling indicated at a press conference that this appeared to be a "one off," and not part of a broader campaign against those critical of eBay. But he also made it very clear he'd never seen anything quite this grotesque and idiotic:

According to the government complaint (pdf) and press release, the plan was apparently three-phased. First, the executives decided they'd harass the couple, then they'd step in and approach the victims pretending to fix the problem they created. All in a bizarre effort to try and glean some good press for eBay in a newsletter that (no offense to the Steiners) isn't even that big:

"As part of the second phase of the campaign, some of the defendants allegedly sent private Twitter messages and public tweets criticizing the newsletter’s content and threatening to visit the victims in Natick. The documents allege that Baugh, Gilbert, Popp and another eBay security employee planned these messages to become increasingly disturbing, culminating with “doxing” the victims (i.e., publishing their home address). It is alleged that the very same group intended then to have Gilbert, a former Santa Clara police captain, approach the victims with an offer to help stop the harassment that the defendants were secretly causing, in an effort to promote good will towards eBay, generate more favorable coverage in the newsletter, and identify the individuals behind the anonymous comments."

But wait, it gets crazier. After engaging in grotesque harassment, then pretending to help in the belief it would net eBay some good press, the folks involved in the effort decided to engage in surveillance of the couple, at times justified by falsely claiming they had threatened eBay executives. At least some of these efforts may have had the blessing of former eBay CEO Devin Wenig (who urged executives to "take her down," according to the complaint). Those involved even crafted fake documents to help them lie about the effort should they get questioned by the police:

"The third phase of the campaign allegedly involved covertly surveilling the victims in their home and community. According to the complaint, Harville and Zea registered for a software development conference to explain their trip to Boston on Aug. 15, 2019. Baugh, Harville, and Zea (and later Popp) allegedly drove to the victims’ home in Natick several times, with Harville and Baugh intending at one point to break into the victims’ garage and install a GPS tracking device on their car. As protection in the event they were stopped by local police, Baugh and Harville allegedly carried false documents purporting to show that they were investigating the victims as “Persons of Interest” who had threatened eBay executives."

Those involved then lied to law enforcement and eBay lawyers about what they'd been up to. While Lelling's office indicates this was a one off and an eBay statement downplays the scandal, it takes a very specific corporate culture to generate executives who thought this was in any way a good idea, and who were able to engage in this behavior without running into any company or institutional guard rails whatsoever (until after the fact). Meanwhile the Steiner's newsletter will ultimately wind up getting more attention than ever. Bang up job all around.

Filed Under: criticism, david steiner, doj, harassment, ina steiner, intimidation, newsletter, stalking
Companies: ebay

DEA Wants In On The Fun, Asks DOJ To Give It Permission To Surveil George Floyd Protests

from the GTFO-drug-warriors dept

I thought there was still a Drug War being fought in this county. I guess it's not as important as billions of annual budget dollars would indicate it is. When the going has gotten mildly tougher for US law enforcement agencies, the DEA is there to help out by placing people engaged in First Amendment activities under surveillance.

The demonstrations over George Floyd's death at the hands of Minneapolis police officers have provoked all sorts of responses from government entities. The DEA's is one of the worst. As usual, it's FOIA terrorist Jason Leopold who's managed to obtain a document the DEA probably didn't want shared publicly.

The Drug Enforcement Administration has been granted sweeping new authority to “conduct covert surveillance” and collect intelligence on people participating in protests over the police killing of George Floyd, according to a two-page memorandum obtained by BuzzFeed News.

Floyd’s death “has spawned widespread protests across the nation, which, in some instances, have included violence and looting,” the DEA memo says. “Police agencies in certain areas of the country have struggled to maintain and/or restore order.” The memo requests the extraordinary powers on a temporary basis, and on Sunday afternoon a senior Justice Department official signed off.

The DEA has always been able to engage in domestic surveillance. Most of its targets reside in the United States. Domestic surveillance to engage in drug-related investigations isn't really the problem here. (This is not to say the DEA's surveillance efforts aren't problematic.) This is the DOJ saying it's okay for an agency that's supposed to be shutting down drug operations to start snooping on protesters. Even if there has been some criminal activity occurring during demonstrations, in recent days this has been the exception, rather than the rule.

The memo [PDF] notes that the law says the DEA's law enforcement powers are supposed to be limited to drug enforcement activity. But there's always a loophole. And that's what the DOJ is using. The memo admits the "federal crimes being committed in the wake of Mr. Floyd's death are largely not drug-related," but says the Attorney General can re-task the DEA as the DOJ sees fit. That's how the DOJ sees it. No further details are discussed in the memo. And the DOJ has nothing to say about what percentage of observed federal crimes to date might have anything to do with drugs.

It appears no one in the DOJ felt the DEA's assistance was necessary. In other words, the DOJ did not ask the DEA if it would be willing to expend its resources surveilling protests for non-drug-related crime. The DEA asked to do this, suggesting it has some underutilized resources that should be budgeted out of the agency when the next appropriations bill comes up for a vote.

It doesn't appear many DEA agents think they should be involved in surveilling protests. The DEA only needed 25 volunteers to do god knows what with their drug investigation expertise. It couldn't get them -- not without stripping the tasking of its voluntary nature.

Two sources knowledgeable about the deployment said 15 people from the DEA’s elite Special Response Team and 10 special agents were chosen. Not all 25 volunteered, the sources said.

Kruskall’s email did not describe what specific tasks the detachment would be given. It added that if insufficient numbers of agents volunteered, others would be assigned the job. According to the sources, fewer than 25 agents raised their hands [when asked to volunteer].

Leopold's DEA sources aren't happy with the DEA's actions. Three people who spoke with Leopold said they were "troubled" by the DEA's desire to send agents to surveil people engaged in protected speech.

And they're correct. The DEA has no business engaging in "covert surveillance" of protests, especially when there's no evidence pointing to drug-related federal crimes being committed. The agency also shouldn't be sending non-volunteers out to help handle protests by "intervening" on regular law enforcement's behalf or arresting protesters for allegedly engaging in criminal acts.

The DEA saw an opportunity to engage in mission creep, if only for a limited time. A DOJ less in thrall to hypocritical "rule of law" notions would have rejected this naked attempt to put DEA boots on First Amendment ground. But that isn't the DOJ we have at the moment. And now we have at least 25 DEA agents burning through tax dollars for absolutely no reason whatsoever. Defund the DEA.

Filed Under: 1st amendment, 4th amendment, dea, doj, george floyd, protesters, protests, surveillance