Senator Wyden Demands Answers About Feds' Seizure Of Dajaz1

from the you-thought-it-was-going-away? dept

If the feds thought that they could seize the Dajaz1.com blog, hold it for a year in secret, then return it and pretend nothing really happened... it appears they may be in for a bit of a surprise. Senator Ron Wyden has begun his investigation into the matter, sending detailed requests for information from Attorney General Eric Holder, ICE director John Morton and White House IP Czar Victoria Espinel. You can see the three letters embedded below. There are a lot of questions to each of them, with a big focus on who they were talking to about the seizures (e.g., the RIAA) and what they were saying. They also ask questions about the legal basis for the seizures and even the training and procedures involved. I'll certainly be interested to see the replies when they come in...

Filed Under: constitution, doj, domain seizures, due process, eric holder, fifth amendment, first amendment, free speech, ice, john morton, operation in our sites, prior restraint, ron wyden, victoria espinel
Companies: dajaz1, riaa

Justice Department Says It Should Be Able To Require People To Decrypt Their Computers

from the legal-questions dept

Another big legal question is hitting the courts, as the Justice Deparment is asking a federal judge to require a woman to decrypt her encrypted laptop as part of a lawsuit against her for a mortgage scam. The government claims that forcing her to decrypt the laptop is no different than standard discovery procedures, such as requiring someone open a safe. However, others, including the EFF, are arguing on Fifth Amendment grounds, that individuals should not be compelled to decrypt such encrypted content, on the grounds that it's a form of incriminating yourself, if the content is found to be useful in prosecution. As we've discussed in the past, some courts have found that people cannot be forced to turn over their encryption key on this very basis. However, this case is slightly different, in that the government is seeking to get around such earlier rulings, by saying that it just wants to require her to type the password in herself to decrypt the laptop -- rather than demanding the key itself. However, the EFF's brief (pdf) in the case suggests that this really isn't a huge difference, and just the decryption requirement alone would be a Constitutional problem.

Filed Under: decryption, encryption, fifth amendment

White House Ramps Up Efforts To Criminalize Wikileaks, As Witnesses Refuse To 'Cooperate'

from the this-is-the-new-transparency? dept

We've discussed a few times how, despite all the promises of transparency and protection for whistleblowers from President Obama, the Obama administration has been by far the most aggressive presidential administration in going after leakers and trying to charge them with crimes. So it was little surprise that the feds were putting tremendous pressure on folks like Bradley Manning to admit to a "conspiracy" involving Wikileaks. Manning refused to play along, so now the feds are broadly widening their investigation, issuing all sorts of random subpoenas on people with very, very distant relations to Wikileaks, seeking something (anything!) that can be used to bring charges under the Espionage Act.

Meanwhile, many who are being called as witnesses are refusing to participate, and may face jailtime themselves:

But it also highlights a very important potential controversy: the refusal of numerous witnesses to cooperate in any way with this pernicious investigation. One witness who has appeared before the Grand Jury has already refused to answer any questions beyond the most basic biographical ones (name and address), invoking the Fifth Amendment right against self-incrimination to do so, and other witnesses are highly likely to follow suit.

One option for federal prosecutors when facing a witness who refuses to answer questions on this basis is to offer them immunity, meaning that nothing they say when testifying can be used to prosecute them (they can still be prosecuted, just not with the aid of anything they say while testifying). Such an offer then precludes further invocations of the self-incrimination privilege as a grounds for refusing to answer questions, as it means there is no longer any danger that the witness could incriminate themselves by testifying. In the event the government makes such an offer, the court would almost certainly compel the witness to answer questions. But at least some of those witnesses -- ones who have already been subpoenaed or are likely to be -- intend to refuse to answer questions anyway, risking an almost-certain finding of contempt of court, which typically carries jail terms as a means of forcing testimony.

One witness or potential witness who is considering that form of civil disobedience told me they view the attempt to criminalize WikiLeaks as such a profound assault on basic freedoms, including press freedoms -- one motivated by a desire to conceal government wrongdoing and illegality -- that they would rather be imprisoned than cooperate in any way with those efforts. That is the mindset of true principled heroism, and if it actually comes to that, anyone committed to transparency and preservation of press freedoms should do everything possible to support such persons in any way they can...

This whole thing seems like a massive waste of resources by the Administration, seeking to punish whistleblowers and the press for revealing information that wasn't sensitive, but merely embarrassing.

Filed Under: espionage, fifth amendment, first amendment, wikileaks
Companies: wikileaks

More Reasons Why Homeland Security Seizing Domain Names Is Unconstitutional

from the keep-up dept

We've raised a number of reasons as to why the federal government's domain name seizures (via Homeland Security's Immigrations and Customs Enforcement group) are almost certainly not Constitutional. And while we've run these arguments by a number of well respected Constitutional lawyers who are extremely interested in these issues (and may be getting involved in various ways), some in our comments have insisted that our points could be ignored because we are not lawyers. And while I've asked some of the lawyers I regularly speak to if they would write blog posts commenting on these issues, many are quite busy trying to actually do something about these issues, and that seems a bit more important.

So it's nice to see some lawyers jumping into the fray. Practicing attorney David Makarewicz has written up an explanation of 5 reasons why the domain seizures are likely to be unconstitutional. It's really quite a well-balanced piece, detailing arguments on both sides, before coming down clearly on the side of why these seizures violate the Constitution in multiple ways. You can head over to that link to read the details, but the short version is as follows:

1. These seizures violate the due process clause of the Fifth Amendment. There are certainly arguments here, but Makarewicz breaks down in which areas and for what reasons seizures without a prior hearing are allowed, and explains why those rules should not apply here.
2. The prior restraint argument. Seizing speech without a hearing violates the First Amendment. Here Makarewicz highlights why the arguments that say this is not prior restraint don't hold much water, and notes that, if allowed, such a ruling will almost certainly be abused for the purpose of political censorship.
3. There was no reason for the seizures without a hearing first. As we've pointed out in the past, seizures are generally allowed to preserve evidence. That doesn't apply here, which makes the seizures that much more questionable.
4. The high risk of wrongful seizure. Obviously, the 84,000 websites seized in the mooo.com case make that clear. While he notes that the government doesn't always have to be right, the Constitution "does require the Government to institute sufficient procedures that reasonably protect a person’s freedom and property from a wrongful taking." Here, it's clearly failed.
5. Finally, there is no immediate way for site owners to reclaim their domain. He notes that when there are exceptions to the First and Fifth Amendments, they're generally allowed, if there's immediate recourse. Here there was not.

It's a good read, and by a real lawyer. So I do wonder if our regular critics will similarly brush aside the concerns as not being worthy of consideration.

Filed Under: constitution, domain seizures, due process, fifth amendment, first amendment, free speech, prior restraint

No, The Fifth Amendment Does Not Complicate Net Neutrality

from the oh-please dept

I've said it plenty of times before: I don't think that the government should mandate net neutrality, but I'm getting pretty sick of ridiculously tortured explanations for why doing so is somehow illegal. There are plenty of legitimate reasons not to support network neutrality legislation, and I'm amazed that those against it keep trying to make really far out claims. The latest comes to us via Slashdot, which points us to an article claiming that the Fifth Amendment's eminent domain concept in the "takings clause," net neutrality would consist of an unconstitutional "taking." Sorry, I don't buy it. Not even close. You can read the full paper this is based on, written by Daniel Lyons from Boston College, but it the logic is just not there to support the claim.

The key problem is defining the internet as a a private broadband network, when in nearly every case, the broadband infrastructure involved includes tremendous use of government granted rights of ways and other government subsidies. If the telcos actually had built their network entirely on their own and negotiated privately with land owners for rights of way, they might have a point on this one. But they didn't and they don't.

However, the paper pretends that the internet is a purely private network:

The purpose of the "open internet" initiative is to prevent broadband providers from controlling which third-party content and application providers can use their networks to deliver information to end-user consumers. In essence, these third parties receive an unlimited, continuous right of access to broadband providers' private property. This access allows them to physically invade broadband networks with their electronic signals and permanently occupy portions of network capacity, all without having to pay the network provider for access. The effect is to appropriate the use of these private networks for the public's benefit, in the form of unfettered and nondiscriminatory access to the content and applications of the consumer's choosing.

Almost none of that accurately represents the situation. Content and service providers are not "invading" (especially not physically) anyone's private network at all. Nothing can be further from the truth. They have, instead, put themselves out on the open internet, and these service providers chose to connect to the open internet allowing their users to request such content. The content and service providers are doing nothing proactive, especially nothing that deserves the grossly misleading "invading" moniker.

Lyons then tries to twist this into a claim that it's like an easement on physical property. Again, this is simply untrue. The third parties are not proactively going onto anyone's network. They have set themselves up and connected directly to the open internet (via their own ISPs to which they pay handsomely for bandwidth) and the only times their content crosses those other networks is when the end users (i.e., the customers of these ISPs) reach out and request that the content be sent to their computer. That's how the open internet works. If the ISPs don't like it, they shouldn't have offered an internet service. To twist this and claim that the internet is somehow a "private network" of these ISPs and service providers who connect to the open internet are somehow "invading" that private network is the height of sophistry.

Effectively, you could take Lyons' twisted reasoning and apply it to nearly any government regulation. Taxes? Clearly an unjustified "taking" of someone's private property. Highway speed limits? An unjustified "taking" of the private owners' use of their own automobile. It's not hard. Try it with some other laws. Lyons tries to get around this by suggesting the key is the "right to exclude." But this is also wrong. It assumes that the ISP controls the wider internet, rather than its own network. Yes, a telco has every right to not connect to the internet. But once it does, it's expected to abide by the overall rules of the internet. If it wants to "exclude," then it doesn't need to hook up to the internet.

There are some other factual problems with the paper, such as suggesting that the telcos developed DSL in response to the success of cable modem services. That's not quite accurate. While DSL did lag cable slightly in implementation, cable was not widely deployed when DSL came on the market. The two were more or less developed in parallel.

I have no doubt that this argument will likely come into play in the upcoming fight over the FCC's attempt to reclassify broadband access, but it seems like an excessively weak claim that I hope no court would seriously consider. There are much more serious issues to focus on, including whether or not the sort of change is actually within the FCC's mandate.

Filed Under: eminent domain, fifth amendment, net neutrality, takings clause

Your Encryption Key Is Protected By The Constitution?

from the can't-incriminate-yourself dept

In an interesting case up in Vermont, a federal judge has ruled that someone accused of a crime cannot be forced to reveal his or her encryption key, as it would be a violation of the Constitution's 5th Amendment, saying that an individual cannot be forced to self-incriminate. In an age where encryption is becoming increasingly popular, expect to see other cases of this nature. It seems likely that a case like this one (if not this one itself) will eventually wind up before the Supreme Court to determine whether or not someone can be forced to give up his own encryption key. Where it gets tricky is the question of whether or not the key itself incriminates the person. As the article notes, a person can be forced to give up a key to a safe that contains incriminating evidence, which many say is analogous to this situation. In the meantime, though, we've already seen cases where people are presumed guilty just because their computers have encryption software installed -- so, it may not matter whether or not the key is provided when the presence of PGP alone is viewed as incriminating.

Filed Under: constitution, encryption, encryption key, fifth amendment, pgp