Disney So Desperate To Stop Leaks It Subpoenas ImageShack Over Single Blurry Still Image Of New Star Wars

from the and-creates-a-streisand-effect dept

Yes, of course, Disney is trying to keep the lid on the new Star Wars film and is extra careful to try to stop any leaks coming out about the new film, but this seems like a pretty expensive and silly way of doing things. The company's expensive lawyers at Latham & Watkins have sought a subpoena to serve on ImageShack because someone -- a user with the name "Darth_Simi" posted what appears to be a single blurry cropped still image from the film (shown here as a thumbnail): The focus, obviously, is on trying to track down the leaker: And while I recognize that Disney thinks it's incredibly important to figure out who leaked that single blurry image, this whole thing seems questionable for a variety of reasons. First, it seems highly likely that the blurry, cropped single frame image is not, in fact, infringing because it's fair use. It is a very tiny portion of the copyrighted work, it was not used for commercial reasons and certainly isn't going to impact the market for the film. As such, the attempt to subpoena ImageShack to identify the uploader should be denied, as it's not infringement.

Second, if Disney really wanted to stop such things, going to court seems like a fairly dumb way to do so. As the Hollywood Reporter story above notes, the image only had about 6,000 views when its story on this image went live. By the time I saw it, the number of views of the image had doubled, and it wasn't that long after the story had gone up. Disney clearly isn't using copyright law to stop this particular use, but rather as a separate tool to try to track down a leaker.

Third, it's hard to see how this effort could possibly be worth the money that Disney is paying its expensive lawyers for. Preparing the filing and going to court isn't cheap. And all over what, exactly? A tiny fair use, blurry, cropped frame from a movie that is only likely to get fans more excited to see the actual film?

Oh, and just to make this clear, we believe that our use of the thumbnail above is fair use for the same reasons that the original posting on ImageShack was fair use, and we'll add that, in this case, it's more so because we're commenting on the image itself in a press report -- and the image is newsworthy because of Disney's lawyers' own actions.

Filed Under: copyright, darth simi, dmca, fair use, leaks, star wars, still, subpoena
Companies: disney, latham and watkins

Will Senator Burr's Attempt To Bury CIA Torture Report Actually Make It More Likely The Report Leaks?

from the action,-reaction dept

We already wrote about how Senator Richard Burr has demanded that the White House return all copies of the full, unredacted CIA Torture Report, which Senator Dianne Feinstein distributed to various department heads last month. As we noted in our article, this seemed like an effort to stuff the full report down the memory hole to make sure that no one could ever do anything with it at all and to make it more difficult to access in a series of FOIA lawsuits. Those lawsuits are demanding the report, as well as the internal Panetta Review that is supposedly the smoking gun, involving an internal CIA analysis that mostly agrees with the Senate Intelligence Committee's analysis in the full report.

Reporter Jason Leopold of Vice News (and one of the people suing the government, under FOIA, for the documents) has some more details about Burr's action, including a copies of the letter [pdf] Burr sent the White House, and the letter that Feinstein sent in reply. As Leopold notes, Burr's decision seems specifically designed to try to do a legal two-step to make the document immune from FOIA lawsuits:

By advising the White House to cease entering the full torture report into an executive branch system of records, Burr is saying that the document is a "congressional record," which is exempt from FOIA, as opposed to an "agency record," which is subject to the provisions of the law.

Feinstein's response shows that she disagrees, and that the report can properly be handed over to the Executive Branch. The reason for the letter, obviously, is for it to be used in killing off the FOIA attempts, and the DOJ wasted no time in making just that argument:

Tonight, the government filed a response in our long-running lawsuit and asked a judge to dismiss our case. A CIA lawyer said in a 31-page declaration that the redactions in the executive summary were justified and the Panetta Review is properly classified and should not be released. The government also responded to the ACLU's FOIA lawsuit for the full torture report. The government said the full torture report is not an agency record subject to FOIA, it is a congressional record. The government cited Burr's letter to support its case.

You can see that filing here [pdf], with this being the relevant portion:

Congress retains control over the Full Report for at least five reasons. First, the conditions under which the report was created reflect that SSCI as a whole asserted complete control over not only drafts, but also the final product. Second, throughout the years-long process of creating and finalizing the Report, both SSCI and the CIA handled the Report in accordance with SSCI’s instructions and strict limitations on access. Third, SSCI voted, in accordance with Senate Rules, to seek declassification and release only of the Executive Summary, Findings and Conclusions – not the Full Report. The then-SSCI Chairman’s decision to provide the Full Report to certain Executive Branch agencies for nonpublic use does not amount to a Committee decision to seek to declassify and release the Full Report. Fourth, the current Chairman of SSCI has reiterated SSCI’s intent to retain control of the Full Report. Finally, the defendant agencies have treated the Full Report, received in December 2014, as a congressional record, sequestering it in secure storage space appropriate to its classification and carefully limiting its dissemination and use. Because the Full Report remains a congressional record as opposed to an agency record, this Court lacks jurisdiction over plaintiffs’ FOIA claim seeking its release, and plaintiffs’ claim should be dismissed under Rule 12(h)(3) or 12(b)(1).2

This is not all that unexpected, even if it's fairly ridiculous. However, it's possible that the whole thing could backfire badly. Feinstein knew what she was doing in distributing the report to a number of people within the administration. While all of whom have access to it have the proper clearance, at least some have to agree that this report is an important historical document, detailing incredible misdeeds by the CIA -- and some of them may view it as important to have that information shared with the public to make sure such events never happen again.

Senator Burr's rather obvious move here to demand all copies be "returned" is seen by many as an attempt to bury the report entirely. As Senator Ron Wyden points out, returning the report would "aid defenders of torture who are seeking to cover up the facts and rewrite the historical record." Given that, it seems more likely that at least someone with access to the document is going to realize that this important review of history is at risk of being shredded. Hopefully there is someone in the government with the courage to stand up and get a copy out to reporters in some manner or another, before Burr has a chance to succeed in wiping it off the face of the earth.

Filed Under: cia, cia torture report, congress, dianne feinstein, doj, foia, jason leopold, leaks, richard burr, senate, senate intelligence committee, whistleblowing

DOJ, Which Once Claimed James Risen's Testimony Was Necessary, Now Tries To Block Other Side From Using Him

from the funny-how-that-works dept

The James Risen saga is basically over, but ended in a bizarre way. As you hopefully recall, this case goes back many years, and involves the DOJ trying to convict Jeffrey Sterling, a former CIA official, of leaking info to Risen. However, Risen has made the compelling case that the DOJ's desire to involve him was an attempt to punish him for earlier work he'd done exposing questionable practices by the intelligence community -- and specifically to force Risen to give up a source, so that future whistleblowers can't trust him. This backfired massively, as Risen fought this entirely, promising never to give up his source, even as the issue went up the Supreme Court (which refused to hear the case), but technically ended with a court saying Risen had to give up his source. Risen still insisted that he would not, and he'd go to jail if he had to. This put Attorney General Eric Holder in a bit of a bind, as he'd promised not to put reporters in jail. Thus, last month, Holder blinked, saying the DOJ would not force Risen to give up his source. However, he was still supposed to testify, just not on that.

Last week, Risen took the stand and basically said absolutely nothing, leading the DOJ on Monday to tell the court that it wanted to "exclude James Risen as an unavailable witness." The filing is fairly amusing, as it admits that Risen is refusing to reveal anything:

Mr. Risen’s under-oath testimony has now laid to rest any doubt concerning whether he will ever disclose his source or sources for Chapter 9 of State of War (or, for that matter, anything else he’s written). He will not. As a result, the government does not intend to call him as a witness at trial. Doing so would simply frustrate the truth-seeking function of the trial.

But as you read it, you realize that the key reason for the filing isn't to admit defeat, but rather to block Sterling's lawyers from using Risen's refusal to testify (or the fact that, in previous filings, the DOJ had said, directly, that without Risen's testimony, they couldn't convict Sterling).

This is true irrespective of whether he is called by the government or the defense—he is unavailable to both parties. The law makes clear that testimony that is not subject to meaningful cross-examination regarding non-collateral matters is antithetical to the purpose of a trial and should be excluded.

And, specifically, please oh please, don't let Sterling's lawyers mention anything about all of this to the jury:

Moreover, since Mr. Risen is not available as a witness on the central issue in the case, the defendant should be prohibited from commenting on Mr. Risen’s failure to appear or suggesting that the government has failed to meet its burden because it did not call him as a witness.

In response, the judge refused the DOJ's request to declare Risen "unavailable" for both sides, and everyone's figuring out how to proceed, with Sterling's lawyers saying that they want to use earlier Risen testimony about how he had multiple sources for his book.

Either way, the DOJ comes out of this looking terrible, and James Risen has made it clear that, if you're a whistleblower, you certainly can trust him not to reveal who you are to the government...

Filed Under: cia, doj, eric holder, evidence, james risen, jeffrey sterline, leaks, sources, whistleblowers

Former CIA Director May Face Charges Under Espionage Act, Showing How Ridiculous Espionage Act Is

from the will-it-happen? dept

In a surprising development, the New York Times reported late Friday that the FBI and Justice Department have recommended felony charges against ex-CIA director David Petraeus for leaking classified information to his former biographer and mistress Paula Broadwell. While the Times does not specify, the most likely law prosecutors would charge Petraeus under is the same as Edward Snowden and many other leakers: the 1917 Espionage Act.

It remains to be seen whether Petraeus will actually be indicted (given how high-ranking government officials so often escape punishment), and the decision now sits on Attorney General Eric Holder's desk. But this is a fascinating and important case for several reasons.

First, all of Petreaus's powerful D.C. friends and allies are about to be shocked to find out how seriously unjust the Espionage Act is—a fact that has been all too real for many low-level whistleblowers for years.

By all accounts, Petraeus's leak caused no damage to US national security. "So why is he being charged," his powerful friends will surely ask. Well, that does not matter under the Espionage Act. Even if your leak caused no national security damage at all, you can still be charged, and you can't argue otherwise as a defense at trial. If that sounds like it can't be true, ask former State Department official Stephen Kim, who is now serving a prison sentence for leaking to Fox News reporter James Rosen. The judge in his case ruled that prosecutors did not have to prove his leak harmed national security in order to be found guilty.

It doesn't matter what Petraeus's motive for leaking was either. While most felonies require mens rea (an intentional state of mind) for a crime to have occurred, under the Espionage Act this is not required. It doesn't matter that Petraeus is not an actual spy. It also doesn't matter if Petraeus leaked the information by accident, or whether he leaked it to better inform the public, or even whether he leaked it to stop a terrorist attack. It's still technically a crime, and his motive for leaking cannot be brought up at trial as a defense.

This may seem grossly unfair (and it is!), but remember, as prosecutors themselves apparently have been arguing in private about Petraeus's case: "lower-ranking officials had been prosecuted for far less." Under the Obama administration, more sources of reporters have been prosecuted under the Espionage Act than all other administrations combined, and many have been sentenced to jail for leaks that should have never risen to the level of a criminal indictment.

Ultimately, no one should be charged with espionage when they didn't commit espionage, but if prosecutors are going to use the heinous Espionage Act to charge leakers, they should at least do it fairly and across the board—no matter one's rank in the military or position in the government. So in one sense, this development is a welcome one.

For years, the Espionage Act prosecutions have only been for low-level officials, while the heads of federal agencies leak with impunity. For example, current CIA director John Brennan, former CIA director Leon Panetta, and former CIA general counsel John Rizzo are just three of many high-ranking government officials who have gotten off with little to no punishment despite the fact we know they've leaked information to the media that the government considers classified.

So hopefully Eric Holder does the right thing and indicts Petreaus like he has so many others with far fewer powerful connections. As Petraeus himself once said after CIA whistleblower John Kiriakou was convicted for leaking: "There are indeed consequences for those who believe they are above the laws." 

But if Petraeus does get indicted, perhaps we should start a new campaign: "Save David Petreaus! Repeal the Espionage Act!"

Republished from Freedom of the Press Foundation

Filed Under: cia, david petraeus, doj, espionage act, fbi, leaks

Irony Alert: DOJ Leaked To Press Decision Not To Force Reporter James Risen To Reveal Who Leaked Info To Him

from the doj-made-a-lol dept

On Friday, we wrote about reports that the DOJ had decided not to force Pulitzer Prize-winning journalist James Risen to reveal an intelligence community source for a story he wrote years ago -- though he still may be subpoenaed and put on the stand about other stuff (and it's not entirely clear if he'll agree to do that). However, there was a bit of irony in all of this: the DOJ leaked this information to the press. Risen's lawyer told reporter Jana Winter that they hadn't received any official word when the stories started appearing in the press, and there hadn't been any official government filing. The NY Times reports the same thing. Instead, it was just reported in the press as "according to a person familiar with the decision."

In other words, it "leaked" from the DOJ.

Or, more specifically, it leaked from the DOJ that it wouldn't seek to put a reporter in jail for refusing to say who leaked other information to him, as it still looks to put that original leaker in jail.

The entire situation was driven by the DOJ's attempt to totally crackdown on leaks that the administration doesn't like. As we've discussed, the Obama administration has (like no other administration in history) declared war on leakers and whistleblowers. It has used the Espionage Act (which is supposed to be used against spies) more than double all other Presidents combined to prosecute those involved in leaks, including journalists. The administration has set up an "Insider Threat Program" and produced a document comparing leaks to "aiding the enemies of the United States."

And, yet... when the government leaks out information that makes the administration look good, suddenly no one has a problem. For years, even when there are leaks that might be said to "compromise national security," so long as they make the administration "look good" no one cares. There are no investigations or freakouts or threats to put reporters or leakers in jail.

And thus, here we are, with the final chapter in the ridiculous Risen intimidation saga involving the DOJ leaking to the press the information that it won't seek to put him in jail for not revealing who leaked him information.

I'm guessing that there will be no investigation at all into who "leaked" this particular information.

Filed Under: doj, eric holder, james risen, leaks, prosecution, subpoena, whistleblowers

German Government Refuses FOI Request By Pointing Out Document Already Leaked

from the well-played dept

Freedom of information requests are a powerful way of finding out things that governments would rather not reveal. As a result, requests are often refused on a variety of grounds, some more ridiculous than others. The Netzpolitik blog points us to a rather unusual case concerning a request by the politician Malte Spitz for a letter from the Chief of Staff of the German Chancellery to members of a commission investigating intelligence matters. The request was refused on the grounds that the document was already freely available (original in German):

The information you requested may be obtained free of charge on the Internet by anyone, in a reasonable manner. The letter from the Chief of the Federal Chancellery, Federal Minister Peter Altmaier, to the chairman of the first committee of inquiry of the 18th legislature, Professor Dr. Sensburg, is publicly available and published in full at the following link:

https://netzpolitik.org/2014/drohung-des-bundeskanzleramtes-wir-veroeffentlichen-den-brief-in-dem-uns-altmaier-mit-strafanzeige-droht/

The Netzpolitik link included there leads to an article that a few weeks earlier had not only leaked the document requested by Spitz, but also noted wryly that the letter from Altmaier threatens anyone leaking documents with legal action.

The German bureaucracy should be applauded for taking the adult view that once a document is leaked, it is publicly -- and officially -- available. This contrasts with the childish attempts by the British government to pretend that Snowden's leaks never happened, and its refusal even to pronounce the name of some of the surveillance programs he revealed.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: foia, freedom of information, germany, leaks

Feds Gearing Up To Try, One More Time, To Force James Risen To Reveal His Source

from the showdown dept

Last week, we noted that Attorney General Eric Holder was hinting that the DOJ was near "a resolution" with reporter James Risen -- the NY Times reporter who the DOJ has been harassing and trying to force to give up sources. In a recent interview, Risen makes the rather compelling case, that this effort by the DOJ was never about actually solving any sort of crime (the DOJ knows who did the leak), but rather about totally discrediting and/or punishing Risen for some of his other investigative reports. If the DOJ can undermine the ability of Risen to protect sources, he loses many sources.

Still, at about the same time that Holder was (again) insisting that no journalists would go to jail under his watch and that they were close to a resolution with Risen, the DOJ was exploring the possibility of issuing yet another subpoena on Risen to try (again) to force him to reveal his sources:

Federal prosecutors obtained 100 blank subpoenas last week for use in the upcoming trial of a CIA officer accused of leaking top-secret information to New York Times reporter James Risen.

The move clears the way for the Justice Department to proceed with a new review of whether Risen should be subpoenaed to testify at the trial of Jeffrey Sterling, the CIA employee accused of disclosing details of a CIA effort to set back Iran's nuclear program.

Some of this is procedural. The DOJ put some new rules in place since the last subpoena, and so there's an argument that in order to review the possibility of a new Risen subpoena, the DOJ basically has to do all the initial legwork, and then the DOJ (and Holder in particular) will "review" under the new rules before determining whether to try this silly process again or to back down. Of course, that seems silly. It seems much more viable to just come out and say that they won't subpoena reporters like this and make that a clear and stated rule. But the DOJ seems unwilling to give up this harassment and intimidation tool.

In the end, it seems likely that Holder will fold, but this game of chicken, putting the threat of jail time on Risen to see who blinks first, is really quite disgraceful by the DOJ. So far, Risen has given no indication he intends to comply -- and has held to the same story all along, that he will not give up his sources under any circumstance. Holder, on the other hand, has promised not to put a reporter doing his job in jail. If both men live up to their word, Holder is the one who needs to blink, and it's pretty stupid to go through this whole charade in the meantime.

Filed Under: doj, eric holder, james risen, journalism, leaks, protecting sources, sources, subpoena, whistleblowing

Eric Holder Says He Regrets Lying To A Judge And Saying A Reporter Was A 'Co-Conspirator' But The Law Made Him Do It

from the uh,-no-it-didn't dept

Giving a talk at the Washington Ideas Forum, outgoing Attorney General Eric Holder spoke about two different (though, similarly named) journalists that the DOJ has been absolutely egregious in trying to abuse for the sake of questionable leak investigations. Regarding James Risen, the NY Times reporter who the DOJ has been pursuing and demanding he reveal sources concerning a leak (when it's clear the DOJ already knows the source and is just doing this to destroy Risen's credibility with sources), Holder says that the DOJ expects "a resolution" in the near future. That's not too surprising. Holder and the DOJ seem to realize that actually putting Risen in jail (the next step in the process) probably wouldn't go over very well.

But it's the other journalist where things get a bit dicier. That's Fox News reporter James Rosen (note the different letter from Risen). Rosen, you may recall, had his phone, email and security badge records grabbed by the government, after the DOJ told a court that Rosen wasn't a reporter, but "an aider and abettor and/or co-conspirator" in the "crime" of leaking classified information about North Korea from the State Department. It later came out that the DOJ actually pretended Rosen was involved in a bombing in its motions to the court.

Holder was asked if there was a decision during his tenure that he regretted, and he brought up the Rosen story:

Holder: I think that -- I think about the subpoena to the Fox reporter, Rosen. I think that I could have been a little more careful in looking at the language that was contained in the filing that we made with the court. He was labeled as a -- as a co-conspirator. I mean, you had to do that as a result of the statute, but there are ways in which I think that could have been done differently, done better. And that's one of the reasons why I thought the criticism that we received because of that -- and the AP matter as well -- was something that we had to act upon and why we put in place this review of our -- the way in which we interact with the media.

Except, as Julian Sanchez points out, that's completely bogus. Holder claiming they had to do that because of the statute is flat out opposites-ville. They had to do that because the statute doesn't allow them to spy on journalists. The law was designed to stop the DOJ from spying on journalists, and so the only way to break that was to lie to the court. The law in question -- 18 USC 793 is designed to only apply to the people actually committing the crime of leaking defense information -- and not to reporters.

Holder claiming that the statute effectively "forced" him into declaring Rosen a co-conspirator is ridiculous. The statute compels him not to seize Rosen's records. Holder is admitting that the DOJ lied to the court here and trying to blame the statute for that lie. That's astounding.

Filed Under: doj, eric holder, investigations, james risen, james rosen, leaks, reporters, terrorism, whistleblowers

TPP Leak Confirms Measures To Criminalize Corporate Whistleblowing

from the no-public-interest-or-free-speech-exemptions dept

As Mike has reported, the core of the newly-leaked TPP chapter is about granting Big Pharma's wish-list, with other worrying stuff for the copyright industry's benefit thrown in for good measure. But hidden away in the chapter's 70+ pages there's something very different -- and very dangerous. Here's how the Australian newspaper The Age explains it:

The draft text provides that TPP countries will introduce criminal penalties for unauthorised access to, misappropriation or disclosure of trade secrets, defined as information that has commercial value because it is secret, by any person using a computer system.

That's clearly an incredibly broad definition of trade secret, and will allow a vast range of materials to enjoy this kind of protection. And by requiring criminal penalties, TPP aims to make that protection very serious indeed:

TPP countries may criminalise all such disclosures or, if they wish, limit criminal penalties to cases that involve "commercial advantage or financial gain"; are directed by or benefit "a foreign economic entity"; or are "detrimental to a [TPP] party's economic interests, international relations, or national defence or national security."

Notice that those are simply options: the default position is to criminalize everything. Moreover, even those "limited" cases could be applied very widely. Particularly troubling is the following aspect of the proposed text:

There are no public interest or free speech exemptions. Criminalisation of disclosure would apply to journalists working for commercial media organisations or wherever the leak was considered harmful to the "economic interests" of any TPP country.

The chilling effect that this would have on investigative reporting is evident. It would also represent yet another powerful reason not to become a corporate whistleblower.

The presence of this section in the latest TPP text is not a complete surprise: a slightly shorter version was already in the previous leak of this chapter, as we reported earlier this year. Moreover, its appearance in TPP seems to be part of a larger push for stronger protection of trade secrets around the world. In 2013, the European Commission proposed new rules "to help protect against the theft of confidential business information." One of the questions in the accompanying FAQ was whether trade secret protection will be part of TAFTA/TTIP. Here's the reply:

Trade secrets will be discussed in the TTIP negotiations, and has a heightened level of relevance with the recent allegations of economic espionage carried out by the national Security Agency (NSA). One goal could be to make sure that the two legal regimes are inter-operative facilitating recognition and enforcement of judgments on either side of the Atlantic. The EU and the US also have a common interest in pursuing protection of trade secrets against misappropriation in third countries.

That's a clear signal that trade secrets will indeed be part of TAFTA/TTIP. Unfortunately, the latest TPP leak gives a pretty good idea of just how bad they are likely to be.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: criminalize, leaks, tpp, trade secrets, ustr, whistleblowing

Obama Administration Has Put Media Leakers In Jail For Nearly 50 Times As Long As All Other Administrations In History

from the ouch dept

We've been among those who have pointed out that the "most transparent administration in history," the Obama administration, has prosecuted media leakers more than all other Presidents in history combined (eight prosecutions in this administration, compared to three total in all previous administrations). Gabe Rottman, over at the ACLU, decided to dig into another stat: how much time has the Obama administration been able to lock up media leakers in jail compared to all other administrations. The answer? The Obama administration has put folks who leaked info to the media in jail for 526 months as compared to 24 months for all other Presidents combined. Admittedly, 420 of those months went to Chelsea Manning, but even if you take that out, we're still talking 106 months for other leakers in cases from this one administration vs. 24 months for all other administrations.

It once again has to make you wonder why the Obama Administration is so focused on punishing anyone who leaks information to the media (even as it likes to "unofficially" leak information all the time). In the end, I keep going back to the speculation I heard from Daniel Ellsberg nearly four years ago (which is also where I first heard the stat about the number of Obama prosecutions against leakers -- at that time, it was just five prosecutions, rather than eight).

Ellsberg's theory was that while President Bush abused the power of the Presidency in the surveillance realm, he was actually proud of it. And while people were upset about secrets leaking, they didn't find it embarrassing. President Obama, on the other hand, came into office claiming to be different -- arguing against those kinds of abuses and promising changes and protections for civil rights. Instead, it appears that the process started under President Bush continued and expanded under President Obama and -- Ellsberg speculated years ago -- the President is somewhat embarrassed by this, leading him and his administration to react negatively to the leaks. Not because of any legitimate security concern, but to try to silence those who seek to reveal that the administration and the President have not come close to living up to their ideals but rather went the other way entirely.

Putting those who leaked info to the media in jail for 526 months -- nearly 44 years -- says a lot about the way the administration truly views whistleblowing, and it's not a saying anything good.

Filed Under: chelsea manning, espionage act, free speech, leak prosecutions, leaks, obama administration, reporting, transparency, whistleblowing