Wow! We keep pointing out how bills like Senator Amy Klobuchar's S.978 anti-streaming bill and Senator Patrick Leahy's PROTECT IP Act will be abused by US law enforcement, and we keep being told that those bills aren't "intended" to be used the way they could be. I think part of the problem is that people don't realize how the Justice Department and US Attorneys will sometimes stretch and twist the law just to go after someone.
Last month, we wrote about the absolutely ridiculous case by the US against former Cisco engineer Peter Adekeye. The details have to be read to be believed, but most of it only came to light because a Canadian judge absolutely blasted both Cisco and the US Attorneys for what clearly appeared to be an unnecessarily vindictive criminal prosecution against Adekeye because he filed an antitrust lawsuit against Cisco, after Cisco tried to block third party companies (such as one of Adekeye's) from accessing necessary patches to service certain Cisco equipment.
The whole story was horrifying, but we thought it ended in May when the judge let Adekeye go and gave the Justice Department a pretty big slap for its actions. But... no. Slashdot points us to the news that the Justice Department has just unveiled a new indictment against Adekeye over the same issue: basically someone at Cisco gave Adekeye a login to download patches, and he did exactly that. This is not, in any way, a matter that should involve the Justice Department. The judge in Canada made that clear. The story about Adekeye shows the Justice Department acting for bad reasons -- either incompetence, corruption or malice (pick any two!). And you would think that someone there might think twice before pushing ahead with bogus prosecution against Adekeye (who's finally back in Switzerland after being stuck in Canada for a year), but that's not how the US works.
And this is why we get very afraid when Congress looks to pass broad new legislation that may impact criminal statutes and the kinds of things that US Attorneys can charge people over. I'd like to believe that US Attorneys are good people trying to stop and punish crimes, but we've seen too many cases where it appears that their actions are incredibly questionable. I'm still hopeful that it's just a few bad seeds among the ranks of US Attorneys, but if we keep seeing stories like this...
specialized points us to a report at Wired concerning a released (via the Freedom of Information Act) report from the FBI as it prepares for dealing with smartphones and faster 4G and beyond mobile data networks. Not surprisingly, the FBI is concerned about what this will mean for law enforcement. Not too long ago, we noted that the feds had been sending documents to local police forces, warning them of the ability of iPhone owners to remotely wipe the devices, using a tool designed to deal with thieves. But the FBI instead describes a future possible addition to this -- using voice or facial recognition characteristics to activate this -- as "Big Brotherish" (you can see it on page 79 of the embedded document below):
In a move that seems Big Brother-ish, Apple has a patent
in the works that could use voice and facial recognition
technology to activate a "kill switch" on its popular iPhone,
shutting it down when hackers "jailbreak" or unlock the
phone to install unauthorized programs on it, or try to steal
information from an unsuspecting iPhone user.
Apparently the FBI doesn't quite recognize that "Big Brother" is the government.
And, speaking of "Big Brotherish," it seems quite concerning that the feds main issue with LTE 4G networks is that since they can send more data through, it means a bigger "firehose" of data to deal with.
One notable impact is that Law Enforcement Agencies
(LEAs) will need to deal with significantly higher data rates
than in current wireless network intercepts.
I recognize that they're just describing the problem, but isn't this effectively admitting that they get way too much info. If you're getting a "firehose" of data, you're doing it wrong (and potentially illegally).
Whenever we talk about the very serious risks and likely abuses of new laws favored by the entertainment industry -- such as PROTECT IP and the felony streaming bill, S.978, supporters of those bills insist that we're crazy for suggesting that the laws will be abused or that there will be any unintended consequences. We're told, over and over and over again that these laws are designed for and targeted only at the "worst of the worst." They're targeted at "rogue" actors, who must be stopped.
And yet, we've seen all too often how US officials have abused other such laws to attack and protect certain US companies from competition. A whole bunch of you have been sending over this incredibly frightening example of the Justice Department conspiring with Cisco to effectively try to destroy a former exec's life for daring to file an antitrust claim against Cisco, due to Cisco's desire to block competitors from servicing some of its products. Unfortunately, I actually found the version of the story at the Ars Technica link above a bit confusing (and it buries many of the key points). A much better way to understand just what Cisco and some federal prosecutors appear to have done is to read the ruling, embedded below, from a Canadian judge, who explains the whole thing clearly and bashes Cisco and the US Justice Department for its incredible overreach, for no reason other than to try to destroy the life of Peter Adekeye.
Adekeye, born in Nigeria, but a UK citizen, had apparently been a quite successful Cisco exec in both the UK and the US for many years. In 2005, he left Cisco and started a couple of companies himself, including one, Multiven, that offered to help provide maintenance services for various Cisco equipment. Apparently, Cisco tried to force customers into purchasing maintenance contracts only from them by denying third parties, such as Multiven, access to various bug reports and fixes. Because of this, Multiven sued Cisco, claiming antitrust violations. Cisco then countersued, including suing Adekeye directly, claiming that Adekeye had accessed Cisco's internal network illegally over 90 times. Adekeye does not appear to deny accessing Cisco's internal systems, but notes that he was given the login information from a Cisco employee, which he believed meant he was now authorized to use the system. It sounds like he used this access to get some of the info that Cisco had been denying Multiven. As part of its "hardball" litigation strategy, Cisco also sought to get the federal government to file criminal charges against Adekeye based on the exact same issue.
Separate from all of this, Adekeye had been dealing with attempts to get a work visa to be in the US for Multiven. The court ruling documents the incredibly ridiculous bureaucratic nightmare that Adekeye went through over the period of a few years in an attempt to seek proper visas to work in the US. At no time does it appear that Adekeye violated the various visas he did have. In fact, it sounds as though Adekeye bent over backwards (and then some) to always comply with US immigration and visa rules, even when it resulted in absolutely ridiculous circumstances, such as when he wasn't allowed back into the US, even though he'd been granted his H-1B visa. That story is crazy, but tangential to the point here -- though I suggest reading the ruling to get a sense of the ridiculousness of US immigration and visa policy.
In part because he was unable to get back into the US, Adekeye moved to Switzerland where a new Multiven office was opened, and continued his efforts to get his immigration status cleared up. As part of the ongoing legal dispute, Cisco wanted to depose Adekeye. Adekeye applied for permission to enter the US to do that... but was denied, and he was told if he went anyway, it could harm his chances of getting his visa status fixed. And Cisco used this to their advantage:
Notwithstanding this entirely reasonable explanation for his inability to attend a U.S. deposition, Cisco had the unmitigated gall to commence contempt proceedings for the applicant's "failure" to attend a U.S. deposition. It was, of course, unsuccessful, but it speaks volumes for Cisco's duplicity.
Eventually, all of the parties agreed to handle the deposition in Vancouver. It was outside the US, but close to Cisco's offices here in Silicon Valley. There was a separate (again tangential) issue involving the belief (which may not have been accurate, apparently) that a US deposition could happen in Canada without having to alert Canadian officials. It was at this deposition hearing in Vancouver on May 19th of last year that things got crazy. Cisco, knowing full well where Adekeye was and why he was in Vancouver -- and that he had tried and failed to get to the US -- apparently told the US Attorneys, who they'd been pushing to file criminal charges, about Adekeye's presence in Vancouver. The Justice Department then filed its criminal charges -- once again totally abusing the Computer Fraud & Abuse Act (CFAA) to make Adekeye's actions sound much worse than they actually were, and had a warrant issued for Adekeye's arrest.
They then sought rather extraordinary efforts from the Canadian government to arrest Adekeye immediately. Part of that, according to the Canadian judge who issued this ruling, appeared to involve a US Attorney leaving out key information, making blatantly false insinuations about other facts, and in some cases, what appears to just be lying:
The affidavit made no mention of the fact that United States immigration authorities had refused the applicant entry to the United States. No mention was made that the applicant had no criminal record. No mention was made that the United States Federal Court had ordered a deposition in Vancouver, presided over by a "special master" at which six or more United States lawyers would be present. No mention was made that the criminal complaint "mirrored" a counterclaim brought by Cisco in the main action in which the applicant was seeking large damages in an antitrust suit.
Sinister inferences were suggested, leading to an inference that the applicant would be a flight risk. The affidavit stated that the applicant "is a Nigerian citizen who claims to have citizenship from the United Kingdom", and that he possibly had British citizenship, and that he was in Canada on a Nigerian passport. The latter reference invited an inference he might flee to Nigeria, a country from which extradition was highly unlikely. In fact, U.S. authorities well knew and had a duty to disclose to the issuing judge that the applicant was a citizen of the United Kingdom and possessed a British passport, on which passport he had entered Canada. They also knew and had a duty to disclose that he had been a resident of England, but was currently residing with his wife and child in Switzerland, and that he had travelled from Switzerland to Canada for purposes of the deposition.
What happened then was somewhat astounding. In the middle of the deposition, RCMP officials walked into the room, interrupted the deposition in progress and arrested Adekeye in the middle of the proceedings. The beginning of this is on videotape. Adekeye, his lawyers, and the "special master" clearly have no idea what's going on, but what's notable is that, while people repeatedly ask for the recording to be turned off, Cisco's lawyers immediately say that the recording should be left on. It appears they knew exactly what was going on and wanted the humiliating arrest on the deposition tape. You can see the video below. As the judge in this ruling notes, the police's actions "could be compared to entering a courtroom and arresting a person during the course of his or her testimony. It is simply not done in a civilized jurisdiction that is bound by the rule of law."
Believe it or not, the situation then gets even worse and even more egregious. Adekeye was, in fact, arrested -- and the charges could have resulted in almost 500 years in jail, all for accessing a Cisco network with a password given to him by a Cisco employee. As you can see, he was removed from the deposition, much to the confusion of the special master appointed by the US court. After being arrested, he asked for bail, and Richard Cheng, an Assistant US Attorney for the Justice Department, sent a letter that was chock full of false and misleading information, which the judge in this case goes through step by step. It falsely implies that Adekeye did not really have British citizenship and that he did not really live in Switzerland. It stated that he used his Nigerian passport to enter the US under an E visa, which was not true. It claimed that the US had denied all of Adekeye's attempts to obtain a visa to visit the US since 2007, which as the ruling now notes "is simply not true." It also falsely stated that Adekeye had fled from law enforcement in the past. Again, the ruling noted "this statement was completely untrue."
And yet, federal officials continued to seek extradition. Even then, months after the arrest, the civil suit between Cisco and Multiven were settled, in a manner that everyone agrees was a "win" for Multiven, with Cisco changing its policy. So the key matter over which this highly questionable criminal charge was brought was settled. And yet, the feds continued to push forward. It was only in May of this year, a year after his arrest, that this new ruling came out and freed Adekeye to leave Canada and go back home.
Honestly, the whole story is really terrifying and makes me depressed to think that my government would do something like this. However, it should seriously call into question whether or not new laws like S.978 and the PROTECT IP Act should be allowed. It seems clear that the Justice Department has no problem using very questionable means to act as the private bullies of certain large companies. It should also call into question some of the recent efforts by other US Attorneys from the Justice Department, such as the efforts in coordination with Homeland Security/ICE to seize domains on questionable evidence, the attempt to extradite Richard O'Dwyer from the UK over very questionable charges and, of course, the recent charges against Aaron Swartz.
All of these cases have key factors in common. They involve what at best should be minor civil issues between private parties in court -- but in which, due to the presence of certain large industry interests, the Justice Department steps in and starts throwing its considerable weight around, including insane possible punishment, all because of dubious and often extremely misleading claims from these private interests. It's possible that the Justice Department officials here are simply incompetent (and honestly, that's an only slightly more comforting idea than the alternative) and unable to realize they're being manipulated by companies seeking to stamp out competition. But it's certainly demonstrating a really horrifying pattern of questionable behavior by the Justice Department and US Attorneys not to focus on real criminal behavior, but to abuse the criminal justice system to take vindictive action against potential competitors for big US industry players.
We've obviously been following with great interest the Federal Government's arguments for why it's allowed to seize domains under the "Operation In Our Sites" banner. The "main event" in the legality of such seizures, for now, is the fight between the Justice Department and the Spanish company Puerto 80, who runs the site Rojadirecta. As you may recall, Homeland Security's ICE division seized two Rojadirecta domain names back in January, despite the fact that the company had been declared perfectly legal in its home country. The Justice Department then did everything it could to stall any of the owners of seized sites from protesting the seizures, often threatening the site owners that if they filed a protest, then criminal charges would be filed against the sites (and, yes, in case you hadn't realized it, that means that all of the sites were seized without any charges being filed).
Homeland Security and the Justice Department are well aware that site owners are challenging the legality of the seizure of five of the domains, but so far only Puerto 80/Rojadirecta has officially gone to court to demand the return of its domains. Almost immediately after Puerto 80 petitioned the court to get its domain back, the Justice Department (as per its threats) officially filed charges against the site. Earlier this month (after stalling once again and getting the court to grant it a delay), the Justice Department finally filed its response to the petition by Puerto 80, which we thought was incredibly weak. Basically, the US Attorneys argued that stifling speech isn't considered "substantial harm" in their eyes, which is a pretty stunning interpretation of the First Amendment.
Puerto 80's lawyers wasted almost no time at all in replying to the Justice Department, and you can read their full filing below. It's absolutely worth reading because it so completely rips to shreds the government's arguments here. I want to go through a few of the key points from the filing, but wanted to call out one huge hole in the government's argument, which is briefly mentioned in Puerto 80's filing, but which appears to be a key point in the overall argument (and which has also been discussed in our comments): the government has completely failed to show any evidence of criminal copyright infringement. Since it can't do that (because it's not clear that any happened), it simply tries to conflate multiple separate parties to pretend there's criminal copyright infringement.
The argument is a little complex, so I'll try to lay it out simply:
For criminal copyright infringement to have occurred, the government has to show that copyright infringement occurred with certain key factors described in Section 506 of US copyright code. The key factors: it has to be willful, it has to be "for purposes of commercial advantage or private financial gain," it has to involve reproduction or distribution of works valued over $1,000 or it has to be on works that are "being prepared" for commercial distribution, but which haven't been released yet (basically leaks). The last factor doesn't apply to Rojadirecta as far as I can tell, because it's accused of streaming sports events that are being shown on TV, meaning that it's not leaking them before they're available.
The "willful" part is going to be difficult to show. The government claims that Puerto 80 was well aware that it was receiving complaints from copyright holders. But, as the law itself states, simply showing evidence of infringement is not sufficient to make it willful. Even worse, of course, are the two rulings in Spain that Rojadirecta was legal. Now, supporters of the seizures love to point out that this is US copyright law we're dealing with, and Spanish copyright law means nothing. That's true for the overall charges... but for proving "willfulness," it's still a big issue that puts a major dent in the US's case.
But, the much, much bigger problem for the government is in those other factors. It knows that Rojadirecta did not reproduce or distribute any works itself. It merely has users who link to such works. Thus, it's pretty clear that there's no direct infringement -- a point that the government effectively concedes in its filing against the petition. So, instead, it seems to be hanging its hat on the claim of contributory infringement. Since there is no contributory criminal copyright infringement in the law, the Justice Department is trying to claim that it still works under an aiding and abetting theory.
There are serious problems for the government in making that stick. Here's the biggest one: just what crime is the government accusing Puerto 80 of aiding and abetting? For there to be aiding and abetting there needs to be criminal copyright infringement done by someone else "aided and abetted" by Rojadirecta. So, here's the problem. Who is that "someone else" that Rojadirecta aided and abetted? The Justice Department will claim that its Rojadirecta's users. But go back up to step 1 above. It's unlikely that any of Rojadirecta's users actually meet the criteria ("for purposes of commercial advantage or private financial gain") necessary to make their use criminal. Their use may still be infringing, but not criminally infringing. Thus, there is no evidence of a crime committed by someone else that Rojadirecta could have aided and abetted. Certainly, the government doesn't show any such evidence.
Basically, the government seems to be conflating two separate parties to try to create criminal copyright infringement out of thin air. That is, it may get Rojadirecta on the first factor, but can't on the second factor. It might be able to get some users on the second factor, but can't on the first factor. So, basically, the government simply doesn't have the goods to prove criminal copyright infringement, and instead is trying to wave its hands in the air really quickly, in hopes that the court doesn't notice this. It seems to think that if it talks about the users' potential civil infringement and quickly switches to Rojadirecta making money from providing a service, it can pretend it's met the factors for criminal infringement... even though it hasn't.
In fact, as part of that hand-waving to distract the court, it seems that the Justice Department is either so incompetent or so desperate that it cited a case that didn't actually say what they claimed it said. Instead, it falsely claimed one case said something when the quote was actually from another case... whose facts were totally different:
The government does not address those arguments or the authority Puerto 80 cites, and instead makes the remarkable suggestion that Puerto 80's failure to "stop an infringing copy from being distributed worldwide constitutes substantial participation in" distribution of copyrighted material. See Opp'n at 21. That is not the law. In fact, it is not the law according to the authority to which the government attributes it—the quote, purportedly from Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 141 (S.D.N.Y. 1991), is not found in Cubby. Rather, it comes from Religious Tech'y Ctr. v. Netcom On-Line Communication Svcs Inc., 907 F. Supp. 1361, 1374 (N.D. Cal. 1995), in which the court found that a material issue of fact existed on the question of whether an online bulletin board system operator was contributorily liable for distributing material which was hosted on its server. The government makes no attempt to explain how the facts of Netcom align with the instant facts, and, indeed, they do not. But Puerto 80 need not belabor the point, because it is irrelevant. That is because even if Puerto 80 could be held liable for contributory infringement, such liability would not support criminal charges.
Nice work, Justice Department... citing the wrong case. Whether you believe it's incompetence or deception, it looks bad either way.
On top of that, the government plays up the whole aiding and abetting claim in its response to the petition, but as Puerto 80 points out in the latest filing: the government's actual charges in its forfeiture case against Puerto 80 don't include aiding and abetting because forfeiture is not allowed for aiding and abetting:
... the domain names were not seized based on an allegation of aiding and abetting, and the government chose not to bring those charges in its forfetiyre complaint. Even if it had, those charges would not support forfeiture of the domain names because the forfeiture statute does not permit seizure based on those crimes. See 18 U.S.C. § 2323 (permitting seizure based on alleged violations of specific statutes, of which 18 U.S.C. §§ 2 and 371 are not among).
In other words... the government really seems to be trying to completely remake the law here, pretending it says all sorts of stuff it does not. And in order to do that, it basically keeps conflating different parties and switching back and forth in a sort of legalistic sleight of hand. One hopes the courts are not fooled by these rather deceitful tactics.
Now, the government has argued that most of these arguments belong in the fight over the forfeiture, rather than in this petition to return the domain, but again, Puerto 80 points out that this makes no sense, and is the whole reason why the concept of "prior restraint" is an issue. The government isn't supposed to be able to stifle speech and then say "we'll figure it all out at trial later...." Thus, Puerto 80 argues, the only proper thing to do is to return the domains, and then get on to the meat of the problems of the government's entire rationale for the seizures and forfeiture attempts.
The big question now is whether or not the courts are confused by the government's hand-waving, distractions and false citations. Or if it recognizes the underlying problems with the government's entire case. Hopefully, we'll find out soon.
We've been covering the various illegal domain seizures by the US government quite a bit, and with the latest round, I did want to loop back on one point: how come none of the seized sites have sued the government yet? We've heard a few times that the lack of lawsuits from those who have had their domains seized is "evidence" that they know the seizures were legal and that they would lose any court case. I began to wonder about this myself, and spent the last two weeks contacting people on all sides of these cases and found the answer to be exactly the opposite: it's not the site holders who are scared. It's the Justice Department, and they seem terrified to have one of these cases actually go to court.
What was really incredible was how everyone I spoke to involved in these cases (even though not at all connected with one another) had an identical story: they'd all love to take their cases to court, but they're waiting for the government to actually get in touch with them. If it was just one site, there would be no story. But I spoke to people associated with many sites, and the story was nearly identical. To hear John Morton and other proponents of domain seizures talk about it, it's "easy" for the owners of seized sites to protest and file suit against the government over the seized sites. Tragically, the reality has turned out to be quite different. Many of the sites were not even officially notified about the seizure until months later. Prior to that, they weren't even told what the sites were accused of, let alone who was doing the accusations. You try responding to a government action against you completely blind. You don't know who you're suing or for what.
Even once notified, the "notification" often came in the form of an "offer" from the government to effectively give up any and all legal claims against the government. From there, the process sounds like something out of the movie Brazil. Any attempt to speak to the government has been met with either a total lack of response or directing people to someone else, who then won't respond. Some of the people navigating this situation said it took months just to figure out who in the government they should be discussing the issue with -- and once it was figured out, actually getting those individuals to respond to basic questions that are normally answered as a matter of course in discussions prior to any litigation, has been an exercise in futility.
Basically, the same story was heard over and over again: the Justice Department doesn't seem to want these lawsuits to proceed and is stalling as much as possible and trying to avoid the legality of the seizures from being tested. At the same time, the site holders are eager to take these issues to court and are tremendously frustrated and distressed over the idea that the US government can simply seize domains without hearing, notice or effective process of appeal. However, nearly all of them expect that it will eventually end up in court (though one suggested that we might all be dead before a case moves forward at this rate).
Of course, I reached out to the government as well. I spoke to the press office of the part of the Justice Department involved in these cases, and beyond pointing me to the press releases they put out, they had no comment. I asked if there was an official process to protest domain seizures and was promised they'd get back to me. It's been a week and no one has gotten back to me. Separately, I reached out to people in other parts of the government that are heavily involved in the seizures, and despite multiple people promising to respond with details of the process, or to pass on my question to others who might know the process, days have gone by with no further response.
So, apparently it's "easy" to protest these seizures, but the people most involved in these seizures don't want to even let us (or those who it matters most to!) know what the process is. After talking to so many people on this, it's become abundantly clear that the lack of lawsuits has nothing to do with the strength of the government's case, but the very opposite. Multiple site owners would like to file suit, but can't. The government, who insists that it's easy to protest their wholesale seizure of a domain without prior notice or hearing can't even provide me a straight answer to what the process is to protest such a seizure. It's almost as if the government never even expected anyone to want to protest such censorship and were totally caught off-guard by this.
But the real tragedy is for the folks who ran these sites. Even as many have found alternative homes, they're frightened and disillusioned by the US government. They don't feel they did anything wrong, and yet were blindly punished by the US government, declared as criminals with no clear recourse -- and when they sought out information or details, have been met with the bureaucratic equivalent of a brick wall. We can all disagree over whether or not these domain seizures are legal or productive, but I would hope we can all agree that those who have had their domains seized should at least have a clear path to protest their innocence if they believe that they did not commit the crime Homeland Security, the Justice Department and a magistrate judge already declared them guilty of committing.
With all the reports lately about mobile devices tracking people's whereabouts, Congress (of course) sprung into action to hold grandstanding sessions hearings about protecting privacy on mobile devices. The official title of the hearing was: "Protecting Mobile Privacy: Your Smartphones, Tablets, Cell Phones and Your Privacy." So, it would be natural to expect that most people would talk about protecting privacy on mobile devices. However, one participant went in the opposite direction. Jason Weinstein, the deputy assistant attorney general for the criminal division, decided that the answer to protecting mobile privacy was to make sure there's less mobile privacy... as far as government snoops are concerned.
That is, he used the hearings to suggest a new Justice Department proposal that would require mobile phone operators to collect even more data from their customers than they do already. Yeah, this seems to be the exact opposite of the point of this particular discussion. Of course, our own Derek Kerton has been making this point repeatedly in our comments in the various discussions about Apple and Google tracking locations... and the government grandstanding about it: the government requires that mobile operators track much of this data. And what Weinstein was pitching was that they should track even more of it.
Of course, Weinstein uses the same old excuse for why everyone should have less privacy -- to make his job easier:
Weinstein said, "when this information is not stored, it may be impossible for law enforcement to collect essential evidence.... Many wireless providers do not retain records that would enable law enforcement to identify a suspect's smartphone based on the IP addresses collected by Web sites that the suspect visited."
But, of course, that totally misses the point. We have protections from government for a reason. There is no right for law enforcement's job to be easy. In fact, the rights go in the other direction. Individuals have a right of privacy from the government because we, as a society, supposedly decided that such rights were more important than an all-powerful government. That's what we thought the 4th Amendment was about, but I understand that's been excised from the document lately...
Remember how President Obama, while campaigning, promised to reject the questionable spying practices of the federal government of President Bush? Yeah, forget all that. Over the past two years, we've seen time and time again that he's actually extended those abuses even further. The latest to come out is that the Justice Department is now claiming that the FBI has the right to get phone records on any call made from inside the US to an international numberwithout any oversight. You may recall a few years back that there was a similar controversy, when it came out that the FBI would regularly just call up phone companies and ask for records -- despite the fact that this violates certain laws designed to protect consumer privacy. Sometimes, they would just use post-it notes.
Apparently, a year ago, McClatchy newspapers put in a FOIA request, asking for the details of a particular Office of Legal Counsel (OLC) memo that was mentioned in the (previously released, but highly redacted) report that showed how frequently the FBI abused the law in this manner. The OLC took its sweet time responding, but finally responded, and in the cover letter admitted that the Obama administration believes it is perfectly legal for the FBI to route around the in-place oversight for getting access to such records and claimed that the law said so.
Which law says so? Oh, see, that they can't say. Yes, the part of the letter that explains which law lets the FBI get these records without oversight was redacted.
It's a secret law! And here I thought, in the US, if the government was going to base actions on a particular law, at the very least, they were supposed to tell you what law. Apparently, the Justice Department under the Obama administration does not believe that to be the case.
Basically, what this means is that the federal government believes that it's free to request information without first getting court approval -- and without telling the public what law says they're allowed to get this information. That's not what the laws on the books seem to say at all. But, of course, big telcos such as AT&T, who are so closely tied to the government, are going to roll over and give the government such info (or, perhaps, give them direct access to the info), even if it violates other laws. Why do you think President Obama voted to support giving telcos retroactive immunity on this issue, while he was running for President despite having earlier said he was against it? Now that he's in power, he apparently is perfectly happy to let the FBI twist the clear intentions of the law to spy on Americans without oversight, and then to refuse to reveal what law he's relying on to make such spying on Americans without oversight legal.
McClatchy quotes Michael German, a former FBI agent, who now works for the ACLU pointing out the obvious:
"It's wrong that they're withholding a legal rationale that has to do with the authorities of the FBI to collect information that affects the rights of American citizens here and abroad.... The law should never be secret. We should all understand what rules we're operating under and particularly when it comes to an agency that has a long history of abuse in its collection activities."
And so far, it doesn't seem like most people care. About the only politician who really seems concerned about this is Senator Wyden, who says this level of secrecy "is a serious problem" and he's "continuing to press the executive branch to disclose more information to the public about what their government thinks the law means." Once again, kudos to Senator Wyden for being one of a very small number of politicians who seems to consistently be concerned about the rights of individuals. But it's sad that the rest of our elected officials aren't up in arms about this. The government shouldn't be spying on Americans, and if it is, it should at least have to tell Americans what law it's basing that decision on.
Last month, there were already reports that the Justice Department was having trouble linking Bradley Manning to Julian Assange -- a key piece necessary to charge Assange with any sort of crime. US investigators have known for a long time that if they can't get such evidence, they don't have much of a case. Back in December, it was reported that they had even offered Manning a plea deal if he would just implicate Assange. The only problem: it appears he's not willing to do so, and there's no other evidence. In fact, all the evidence suggests what everyone said from the beginning: Manning decided to take whatever documents he took himself, and whoever uploaded it to Wikileaks (and it's still not confirmed that it was Manning, though he's obviously the most likely) did so of their own free will, not because of pressure from Assange.
The latest reports (via Julian Sanchez) suggest more of the same. The Justice Department is trying really, really hard to link the two, but seems to be quietly admitting that there may be no "there" there, and because of that, there may be no case. What's really stunning however, is that despite all of this work to try to find a simple link, and the lack of any evidence of that link, the Defense Department is still insisting that the link is there and that Assange must be charged.
I find this pretty interesting. I'm assuming the view of DoD officials is clouded by the fact that Manning, by being in the armed services, was a part of the DoD and that they can't accept the idea that he might honestly believe there were wrongdoings that needed to be exposed. They insist that Assange must have preyed on him and pushed and cajoled him into sharing the info. Of course, now the big question is what will the government do. Without this link, there's no case against Assange. So either they try some other, exceptionally weak claim. Or... the give up. They should know what the right option is, but somehow I doubt they'll choose wisely.
As large segments of the US government go ballistic over the Wikileaks issue -- potentially caused by a military whistleblower -- is it any surprise to find out that the government is admitting it sucks at protecting whistleblowers? The Justice Department has put out a report saying that the Defense Department has pretty much failed in its effort to protect whistleblowers in the military. The report also found that the military has also seen nearly double the amount of "retaliations" for whisleblowing as it had in the past.
Of course, what's most interesting about this is that this is the sort of thing that leads to situations like Wikileaks. If the Defense Department can't protect whistleblowers who go through the official process to report problems, those whistleblowers are going to go to third parties... like Wikileaks.
Well here's a surprise. In the appeal of the ruling from earlier this year that genes are not patentable, the Justice Department has decided to weigh in with an amicus brief, changing the government's longstanding position on gene patents. The government's official position is now that isolated genes should not be patentable, though it does suggest that "manipulated" DNA could be patentable. They basically make the argument that merely isolating a gene isn't an invention, which makes perfect sense. What's interesting is that the Justice Department's position appears to disagree with the USPTO's stated position until now. There must have been a hell of a political fight within the administration to get this through... Anyway, the full filing is after the jump.
