Sony Once Again Ridiculously Warns The Media Not To Report On Leaked Emails

from the that-fair-use-thing... dept

Back in December, when the Sony emails first leaked, we wrote about how Sony hired super-high-powered lawyer David Boies to send off ridiculously misinformed letters to media outlets warning them that they should not write anything based on information in the leaks. Boies took it a ridiculous step further, threatening to sue Twitter for not blocking screenshots of the emails. Both threats had no real legal basis.

Of course, now that the emails are in the news again, thanks to Wikileaks posting the archive online and making it searchable, Sony is apparently shelling out more big bucks to Boies to send around another version of the letter. You can see the letter here or at the bottom of the post.

Once again, the legal reasoning in the letter is... questionable at best. The included attack on Wikileaks is even more confused, arguing that freeing up this information helps North Korean censorship. It's difficult to see how that's really true, but okay. But the really ridiculous part is arguing that the media should not publish this information to support the First Amendment. Really.

SPE [Sony Pictures Entertainment] therefore again asks for your help in protecting the First Amendment and declining to exploit the Stolen Information. As I stated in my December 2014 letter, SPE does not consent to your possession, review, copying, dissemination, publication, uploading, downloading, or making use of any of the Stolen Information. And we again ask that you take all reasonable actions to prevent your company and any of your employees, independent contractors, agents, consultants, or anyone who may have access to your files from examining, copying, disseminating, distributing, publishing, downloading, uploading, or making any use of the Stolen Information.

This is a rather confused understanding of the First Amendment, and the rights of the press to look at and publish newsworthy information, even if it's obtained through more questionable means. Hell, it seems worth mentioning right about now that Sony Pictures Entertainment just happens to be making a movie about Ed Snowden. Apparently, it's fine and dandy for Sony to make a movie detailing how the press was able to report on a bunch of "stolen information," but if anyone in the media does that about Sony, then it's magically illegal? Is Sony really going to try to push that argument in court? Because it's going to get a massive First Amendment smackdown if it tries.

Thankfully, it appears that most of the press is ignoring these threats, and there have been a number of interesting and newsworthy stories coming out of people looking through the emails. Well, except for Hollywood's favored mouthpieces, like Deadline.com. It reported on this letter, but used it to repeat Sony's completely bogus talking points and insist that "respectable media outlets don't seem to have any appetite to re-enter territory that seemed morally questionable in December."

While one might argue that revealing internal gossip and bad jokes by Sony execs is morally questionable, it seems that stories about paying for political investigations of companies you don't like is extremely newsworthy. As is trying to influence international trade policy with statements that completely contradict what you've said publicly. There is plenty of newsworthy information in these documents, and the media would be doing the First Amendment a major disservice to ignore newsworthy information just because Sony doesn't like it.

Filed Under: david boies, first amendment, free speech, journalism, sony emails, sony hack
Companies: sony

Student Sues College After Campus Cops Demand He Get A Free Speech 'Permit' Before Handing Out Fliers

from the stinking-badges dept

Hey, budding adults! Welcome to college! Now, kindly shut up for the next few years.

Cal Poly Pomona’s campus policies impose a web of restrictions before students can distribute literature on campus: They must check in with the Office of Student Life, allow the school to copy their IDs, and wear badges signed by an administrator. Even then, would-be speakers are relegated to the so-called “free speech zone.” Badges can only be issued from 8 a.m. to 5 p.m. on weekdays, although the Office of Student Life pledges to “work with” any student who wishes to engage in expressive activity on evenings or weekends. Additionally, students must register in advance for outdoor events, and the Office of Student Life must approve all flyers and posters.

That's what the First Amendment has been reduced to at Cal Poly Pomona: asking permission, wearing "free speech" badges and a standing-room-only patch of ground. These restrictions have prompted a lawsuit from student Nicolas Tomas, who alleges campus police prevented him from handing out pro-vegan fliers on a campus sidewalk and directed him to jump through the college's many speech-curbing hoops before exercising his First Amendment rights.

Despite being a public college -- which should encourage it to keep its free speech meddling to a minimum -- Cal Poly Pomona continues to issue policy-related "Presidential Orders" that strip away students' First Amendment rights. Because some of these orders haven't been made public, they're open to abuse, as Tomas points out in his lawsuit.

Together, the policies establish an unconstitutional “free speech zone” and impose unconstitutional prior restraints on expressive activities that limit free expression at Cal Poly Pomona.

The policies are contradictory, confusing, and do not provide adequate notice to students regarding Cal Poly Pomona’s policies on free expression. For example, the Student Life webpage on the Cal Poly Pomona website provides links to the Interim Freedom of Expression Policy (dated 2002) and the 2008 Presidential Order policies, but not the 2014 Presidential Order.

The inconsistent policies allow administrators to pick and choose provisions that they are going to enforce, allowing them unlimited discretion to promote or silence speech based on its content or the identity of the speaker.

At some point between March 5th and today's date, CPP personnel updated the site to include the missing 2014 Presidential Order. No new link is provided, nor has the title of the existing link ["New Presidential Order: Use of University Buildings, Facilities, or Grounds (PDF)"] been altered. Only the destination document has. Instead, whoever was in charge of this simply swapped out the 2008 Order for the 2014 Order without any indication this change had taken place. Crafty.

Cal Poly Pomona vows to respect your free speech rights, provided you inform the administration 10 days in advance, are granted permission to speak and are willing to wear a speech permit while remaining in the properly-designated area. That's just not how free speech works. Tomas is hoping his lawsuit will result in the school's policies being found unconstitutional. Even if Tomas can't get the constitutionality declaration and permanent injunction he's requesting (along with damages and costs), maybe his efforts will push the school to reconsider its policies.

Filed Under: first amendment, free speech, free speech permit, nicolas tomas
Companies: cal poly, cal poly pamona

EFF, Human Rights Watch Sue The DEA Over Mass Surveillance Program

from the good-timing dept

Well, that was quick. As we noted, just yesterday, USA Today published a detailed takedown of the DEA's massive phone records mass surveillance program that was actually started more than two decades ago. And this morning, the EFF, representing Human Rights Watch, filed a lawsuit over the program. Of course, the program had actually been revealed years ago, and back in January, the US government revealed some details itself about the program, which is what prompted the new lawsuit. As the EFF notes in its press release about the lawsuit:

“The DEA’s program of untargeted and suspicionless surveillance of Americans’ international telephone call records—information about the numbers people call, and the time, date, and duration of those calls—affects millions of innocent people, yet the DEA operated the program in secret for years,’’ said EFF Staff Attorney Nate Cardozo. “Both the First and Fourth Amendment protect Americans from this kind of overreaching surveillance. This lawsuit aims to vindicate HRW’s rights, and the rights of all Americans, to make calls overseas without being subject to government surveillance.”

I recommend reading the full complaint which has more details. It details why the program violates both the First and Fourth Amendments. The basic First Amendment argument:

By their acts alleged herein, Defendants have violated and are violating the First Amendment free speech and free association rights of Plaintiff and its staff, including the right to communicate anonymously, the right to associate privately, and the right to engage in protected advocacy free from government interference.

And the Fourth Amendment argument:

By the acts alleged herein, Defendants have violated Plaintiff’s reasonable expectation of privacy and denied Plaintiff its right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the Constitution of the United States.

It seems likely that the government will pull out all the usual stops to try to end this lawsuit, arguing "national security" and "state secrets" and all that jazz. However, as the USA Today report noted, Eric Holder agreed to kill off this program after realizing that it was nearly impossible to defend in the same manner as the feds were trying to defend the NSA's bulk phone records collection...

Filed Under: 1st amendment, 4th amendment, dea, first amendment, fourth amendment, lawsuit, mass surveillance, metadata, phone records, surveillance
Companies: eff, human rights watch

District Court Says You Can (Probably) Photograph Police, But Only With A Regular Camera, Not A Drone

from the also:-plenty-of-deferential-exceptions dept

You have a First Amendment right to film police officers and other public figures during their performance of public duties… except when you don't. Police officers are given the most deference in these matters, despite a handful of circuit courts upholding this right and the DOJ itself stepping in to inform police departments around the nation that, yes, citizens have a right to record police officers in public.

But the "right" is loaded with exceptions, and it's not backed up by circuit court decisions in several states. To date, most courts have given law enforcement officers plenty of leeway to shut down recordings as they see fit and stay one step ahead of accountability.

In February of last year, Pedro Rivera overheard a police scanner call for respondents to a serious traffic accident in Hartford, Connecticut. Rivera, a cameraman for a local news station, headed to the crash site and attempted to gather footage using his personal drone. This drew the attention of responding officers, who forced Rivera to remove himself and his drone from the scene. (They also suggested his employer could stay in their "good graces" by punishing Rivera for hovering by proxy 150 feet above the scene of the accident.)

Rivera sued, claiming the police violated several of his rights, including his First Amendment right to film police officers performing their public duties. Connecticut's federal court has sided with the police officers, in effect declaring that those within the Second Circuit's coverage area don't have a right to film police -- at least not with a drone.

As for his First Amendment claims, the court found that there was no recognized right to record police activity. While other circuits have split on the issue -- there is such a right in the First, Seventh, Ninth and Eleventh circuits -- the Second has never addressed the question, meaning that there could be no clearly established right as needed for the officers to waive their qualified immunity.

The district court also went out of its way to note that, had Rivera even been in a jurisdiction which protected the right to film police activity, he may have fallen outside the scope of those protections. He wasn't standing by with a camcorder, after all, but sending "a flying object into a police-restricted area ... effectively trespassing onto an active crime scene." Similarly, because there was no constitutional violation, the court dismissed Rivera's retaliation complaint, as you cannot retaliate against the exercise of a right that doesn't exist.

Specifically, the court seems to have an issue with the type of camera used, rather than the act itself.

Moreover, the Court notes that in cases where the right to record police activity has been recognized by our sister circuits, it appears that the protected conduct has typically involved using a handheld device to photograph or videotape at a certain distance from, and without interfering with, the police activity at issue. [...]

By contrast, here Plaintiff directed a flying object into a police-restricted area, where it proceeded to hover over the site of a major motor vehicle accident and the responding officers within it, effectively trespassing onto an active crime scene. See, e.g., U.S. v. Causby, 328 U.S. 256, 266 (1946) (holding that invasions to airspace situated within ―the immediate reaches of land—including airspace so close to the land that invasions of it affect the use and enjoyment of the surface of the land—are in the same category as invasions to the land itself). Even if recording police activity were a clearly established right in the Second Circuit, Plaintiff‘s conduct is beyond the scope of that right as it has been articulated by other circuits.

The case cited quotes Congress as defining "public domain" airspace as somewhere between 500-1000 feet above the ground, depending on location, time of day, weather, etc. In the 1946 case, military planes were buzzing Causby's farm at less than 100 feet above the ground. The Supreme Court found in Causby's favor.

This raises the question: would Rivera's photography have been protected if it had occurred above 500 feet? The district court has basically declared that an altitude of 150 feet is an "invasion" of the ground below it. Would going higher restore rights? Or would deference to law enforcement make an accident scene off-limits to aerial photography?

This is where older rulings clash with new technology. The court plainly states that it would have viewed Rivera's photography more charitably had he been using a handheld camera, placing him closer to the accident scene than his drone ever was. Somehow, the fact that it was overhead seems to be what's holding the district court back from upholding Rivera's First Amendment rights. A height of 150 feet likely interfered with nothing more than the officers' sense of control. Because the police couldn't "rope off" the sky, they had to do the next best thing: order the flying camera and its operator away from the scene.

The court says the camera "trespassed" into an active crime scene. But cameras do that all the time. The yellow tape may keep observers further away horizontally from crime scenes, but it does not prevent them from observing or filming any visible part of it. This decision gives police control over the skies, even when the circumstances don't demand it. They certainly have every right to ground a citizen's drone if it's interfering with police or medical aircraft, but otherwise it's just another camera -- in this case a camera 150 feet away from the nearest police officer. There's no interference happening here, and yet, the "right" to film police has been limited to only certain earthbound photography equipment -- and even then, still subject to any number of restrictions imposed arbitrarily by police officers.

Filed Under: drone, filming police, first amendment, journalism, pedro rivera, photography, police

Warner Bros. And Rightscorp Argue That Copyright Trolling Is Protected By The First Amendment

from the that's-one-way-to-look-at-it dept

Is the process of copyright trolling protected by the First Amendment? That appears to be the claim that both Rightscorp and Warner Bros. are making in response to a class action lawsuit filed against them.

Back in November, we wrote about a class action lawsuit filed against Rightscorp, by lawyer Morgan Pietz. Rightscorp, of course, is a company trying (and mostly failing) to make copyright trolling slightly more respectable by shaking down accused infringers (based on a questionable methodology) for somewhat lower amounts than traditional copyright trolls. Morgan Pietz, if you don't know, is one of the key lawyers who helped take down infamous copyright troll Prenda Law -- so his involvement was noteworthy.

Since November, when the lawsuit was initially filed, there's been some back and forth in the lawsuit (and even the main named plaintiff has changed). In the first amended complaint [pdf] that was filed last month with new lead plaintiff, John Blaha, the claims about violations of the Fair Debt Collection Practices Act have been removed, to focus mainly on violations of the Telephone Consumer Protection Act and abuse of process. The TCPA bans autodialing telemarketers, and Pietz is trying to argue that Rightscorp's autodialers fall under this law. The abuse of process claims focus on how Rightscorp got access to various people to shakedown, using DMCA 512(h) subpoenas. This is the process -- which courts have clearly rejected -- by which copyright trolls think they can issue subpoenas to ISPs about potential infringers, without first filing a lawsuit. Every few years, copyright trolls think they've newly discovered this loophole even though the courts have rejected it. The lawsuit has also added key Rightscorp clients, Warner Bros. and BMG, as defendants as well.

Last week, Rightscorp responded [pdf] by arguing that the case should be dismissed under California's anti-SLAPP law. Now, we've been huge supporters of California's anti-SLAPP law and believe that we need a similar federal anti-SLAPP law. Anti-SLAPP laws allow defendants to quickly get lawsuits dismissed when it's clear those lawsuits are nothing more than attempts to silence their public speech (SLAPP standing for "Strategic Lawsuit Against Public Participation.") However, I'm hard pressed to see how robocalling someone demanding they pay up or get sued is "public participation" in any way. Here's how Rightscorp makes its argument however:

The abuse of process claim should be dismissed under California’s anti-SLAPP statute, as Plaintiff’s attempt to recover damages from Defendants and enjoin them from making further subpoena applications impermissibly impairs Defendants’ free speech and petitioning rights. The imposition of the remedies Plaintiff seeks is prohibited as it would unduly burden Defendants’ efforts to invoke legal process to identify copyright violators who illegally distribute Rightscorp’s clients’ protected works. As the California courts have consistently held, claims attacking a defendant’s efforts to invoke the legal system are subject to being automatically stricken under anti-SLAPP.

But that's not true at all. It's hard to see how anyone can argue that merely filing a subpoena for information is protected free speech. There are plenty of situations where courts have ruled that such subpoenas are inappropriate -- including (as mentioned above) in nearly identical cases. It's not a free speech issue at all. But having gone down this path, Warner Bros. (Rightscorp's main client) has decided to chime in as well [pdf].

Specifically, Plaintiff’s claim impermissibly challenges Defendant’s petitioning conduct, which is protected under California’s anti-SLAPP statute.

While I'm not convinced that Pietz's class action will survive (for a variety of reasons), the idea that the lawsuit itself should be barred under California's anti-SLAPP law seems ridiculous. The lawsuit is not seeking to block Rightscorp's First Amendment rights. It's seeking to stop robocalls and illegal subpoenas that are used to allow Rightscorp to shakedown people for settlement money by bombarding them with demands to pay up to avoid being sued.

Filed Under: anti-slapp, california, class action, copyright, copyright trolling, dmca, first amendment, morgan pietz, process violations, robocalling, subpoena
Companies: rightscorp, warner bros.

Most Of The 'Evidence' Against Philadelphia Woman/ISIS Wannabe Is Tweets She Made

from the thought-crimes dept

So we just had a story about the FBI uncovering yet another of its own plots for some hapless Americans talking about plans to commit terrorism with the support of an FBI agent. This morning, the DOJ announced the arrest of a Philadelphia woman, Keonna Thomas, who also went by Fatayat Al Khilafah and "YoungLioness." This one doesn't appear to involve an FBI informant, but rather Thomas's own willingness to reveal her support for ISIS on Twitter, which (unsurprisingly) got the Justice Department to take a closer look at her private messages, in which she communicated more directly with someone claiming to be an ISIS member, who told Thomas he could help her become a martyr. The evidence of those communications and her apparent plan to travel to Europe and on to Turkey seem like they could be more damning, but what's striking about the full complaint against Thomas is that nearly all of it is about random stuff she posted on Twitter in support of ISIS -- much of which appears to just be retweets. Here are just a few examples, but there are many more in the complaint:

On or about August 18, 2013, KEONNA THOMAS. a/k/a "Fatayat Al Khilafah," a/k/a "YoungLioness," re-posted on Twitter a photograph of a young male child wearing firearm magazine pouches and camouflage attire, with the following caption: "Ask yourselves, while this young man is holding magazines for the Islamic state, what are you doing for it? #1S1S."

On or about October 16, 2013, KEONNA THOMAS, a/k/a "Fatayat Al Khilafah," a/k/a "YoungLioness," posted on Twitter a picture of U.S. Currency, with the following captions; "US Dollar notes donated by Kuwait nationals to the ISIS brothers;" and "Allahu Akbar [God is great]!! Support the Muslims by giving sadaqah [charity]."

[....]

On or about December 17, 2013, KEONNA THOMAS, a/k/a "Fatayat Al Khilafah," a/k/a "YoungLioness," re-posted on Twitter the following statement by another Twitter user; "'Happiness is the day of my martyrdom' -- Sheikh Khalid al Husainan."

On or about December 23, 2013. KEONNA THOMAS, a/k/a "Fatayat Al Khilafah," a/k/a "YoungLioness," re-posted on Twitter a video along with text advising that the video constitutes "a message to #muslims in the west from a British brother with #ISIS #Mujahideen [violent jihadi fighter] #Syria." The video is titled, "A message from a mujahid," and is accompanied by the following description: "ISIS mujahid gives some advice. Rayat al Tawheed. Official Media of the mujahideen."

On or about January I, 2014, KEONNA THOMAS, a/k/a "Fatayat Al Khilafah," a/k/a "YoungLioness," posted on Twitter the following statement: "I see why the mujahideen [violent jihadi fighters] Sacrifice Dunya [life on earth] for Akhirah [the afterlife] there's no comparison."

On or about January 4, 2014, KEONNA a/k/a "Fatayat Al Khilafah," a/k/a "YoungLioness," posted on Twitter the following statement: "Only thing I'm jealous of is when I see the smiles of shuhadaa [martyrs]"

On or about January 15, 2014, KEONNA THOMAS, a/k/a "Fatayat Al Khilafah," a/k/a "YoungLioness," posted on Twitter the following statement: "I want these to be my last words." Accompanying this statement was a photograph of the following text: "By the Lord of the Kaaba [a shrine in Mecca] I have succeeded."

On or about January 30, 2014, KEONNA THOMAS, a/k/a "Fatayat Al Khilafah," a/k/a "YoungLioness," re-posted on Twitter a photograph of an individual carrying an AK-47 weapon, with the following text: "Sponsor a Mujahid [violent jihadi fighter]." Accompanying the photograph, THOMAS re-posted the following statement by another Twitter user; "Did you know... For as little as $100 you can provide a #Mujahid with his basic necessities for 1 month?"

On or about April 10, 2014, KEONNA THOMAS, a/k/a "Fatayat Al Khilafah," a/k/a "YoungLioness," posted on Twitter the following statement, followed by images of a skull, flames, and a gun: "I need a permanent vacation that can only mean one thing." In response, another user of Twitter posted the following statement: "istishhaadi [martyrdom]"

There's a lot more like that. No doubt, Thomas was clearly publicly expressing her views in support of ISIS and other such things. It should be no surprise that such speech resulted in a further investigation. And the other stuff -- concerning her communication with someone in ISIS, her booking a flight to Barcelona and even getting a visa (in her own name) to Turkey would trip some alarms leading to these charges of "providing material support." In fact, such charges may be perfectly reasonable given those other actions -- though, it's unclear what "material support" was actually provided. It really does seem concerning how much of the evidence is based on tweets and retweets.

We already noted that some in the DOJ consider retweeting ISIS tweets to be material support of ISIS. The charges against Thomas may be perfectly reasonable because of the other issues and her actually planning to travel overseas (and, if she truly did intend to join ISIS and become a martyr as implied by some of the tweets, she sure didn't consider that announcing her intentions publicly might not have been the smartest of moves). But it does seem somewhat worrisome that so much of the evidence is based on her tweets and retweets, given the possible First Amendment implications. Actually sending money to terrorist groups is one thing. But retweeting idiotic sayings in support of crazy terrorist groups? Should that really be illegal?

Filed Under: doj, fatayat al khilafah, first amendment, isis, keonna thomas, tweets

FBI Uncovers Another Of Its Own Plots, Senator Feinstein Responds By Saying We Should Censor The Internet

from the say-what-now? dept

As you may have heard, yesterday the FBI "uncovered" yet another of its own terrorist plots, the latest in a very long line of "terrorist plots" the FBI has "uncovered" -- in which the details always show that it was an undercover FBI "informant" (often doing this to get off leniently for some other issue), who more or less goads hapless, naive people, into a "plot" that had no real chance of ever happening. This appears to be the same sort of thing.

Still, politicians never leave an opportunity like this unexploited, and so in jumps Senator Dianne Feinstein, arguing that the only proper way to deal with this is to, of course... censor the internet:

I am particularly struck that the alleged bombers made use of online bombmaking guides like the Anarchist Cookbook and Inspire Magazine. These documents are not, in my view, protected by the First Amendment and should be removed from the Internet.

For what it's worth, Dianne Feinstein's "view" is wrong. The Anarchist Cookbook is very much protected by the First Amendment. While the book is banned in other countries, who don't have the equivalent of the First Amendment, it's perfectly legal in the US. The FBI/DOJ has extensively investigated the Anarchist's Cookbook in particular over the years, and as far back as 1997 directly told Senator Feinstein that she could not ban it. This is from the DOJ back in 1997:

Senator Feinstein introduced legislation during the last Congress in an attempt to fill this gap. The Department of Justice agrees that it would be appropriate and beneficial to adopt further legislation to address this problem directly, if that can be accomplished in a manner that does not impermissibly restrict the wholly legitimate publication and teaching of such information, or otherwise violate the First Amendment.

The First Amendment would impose substantial constraints on any attempt to proscribe indiscriminately the dissemination of bombmaking information. The government generally may not, except in rare circumstances, punish persons either for advocating lawless action or for disseminating truthful information -- including information that would be dangerous if used -- that such persons have obtained lawfully.

And yet, Feinstein's first response to the FBI uncovering yet another of its own plots is to go back to trying to censoring the internet in direct violation of the First Amendment? Yikes.

Oh, and even worse... in keeping with the fact that this plot was actually created by the FBI itself, guess where the two "terrorist wannabes" got the Anarchist Cookbook? From the undercover FBI agent! From the criminal complaint itself [pdf]:

On or about Novermber 2, 2014, the UC [Undercover Officer] met with VELNTZAS and SIDDIQUI. When VELENTZAS was reading a book called "Chemistry: The Central Science," the UC asked how this book was going to benefit them. VELENTZAS stated that they could practice at her house, but could not leave any residue. The UC stated that practicing at the house was not a good idea because the people living in the apartment below VELENTZAS might hear loud noises, referring to noises from explosions. VELENTZAS said she could always tell her neighbors that she dropped some bookshelves. The UC and VELENTZAS then discussed the fact that the UC had downloaded The Anarchist Cookbook. VELENTZAS suggested the UC print out the parts of the book that they would need. During the conversation, the UC stated, "We read chemistry books with breakfast. Like, who does that?" VELENTZAS responded, "People who want to make history."

The complaint also lists many other books and magazines and web pages that the various people read throughout, and later has one of the wannabe terrorists thanking the undercover agent for introducing The Anarchist's Cookbook to her.

As for the other document that Feinstein wants to censor, Inspire is Al Qaeda's magazine. And, again, reading through the complaint you see that it was actually the undercover agent who brought the magazine. The wannabe terrorist did ask the undercover agent to get it, and eventually it was the undercover agent who actually got it. Velentzas keeps asking the undercover agent to find a copy of Inspire, over and over again in the complaint until eventually the agent complies:

On or about December 24, 2014, the UC visited VELENTZAS and brought the Spring 2014 issue of Inspire magazine, as previously requested by VELENTZAS.

In other words, in neither case did the would be terrorists get the "bad" material from the internet. In both cases it came from the undercover FBI agent.

Meanwhile, it seems like the only real result of this ridiculous statement will be for Feinstein to drive ever more awareness to the old Anarchist's Cookbook, so yet another generation of teenagers can discover it and think they've found something totally cool online.

Filed Under: anarchist's cookbook, censorship, dianne feinstein, doj, fbi, first amendment, free speech, own plot, terrorism

Georgia Supreme Court: No, Writing Mean Things About Copyright Trolling By Linda Ellis Is Not 'Stalking'

from the moving-on... dept

A few years ago, we wrote about a terrible Georgia state court ruling against Matt Chan, the operator of Extortion Letter Info (ELI), a website/forum that has tracked copyright trolling for many years. There had been a number of discussions on the site about Linda Ellis, who is somewhat notorious for her trolling effort. Ellis wrote a poem called "The Dash" that gets reposted a lot online. Ellis and her lawyers then send threat letters, emphasizing the possible $150,000 in statutory damages (yet another example of how statutory damages aid in copyright trolling), before suggesting much lower (but still crazy high) dollar amounts to "settle." While some of the discussions on ELI were overly aggressive towards Ellis, it still seemed ridiculous that the court ordered Chan to remove all content relating to Ellis and to block any future mentions of her.

It seemed rather obvious that this was a pretty clear First Amendment violation, but the court felt that it was okay under Georgia's anti-stalking law. Georgia's Supreme Court has now unanimously reversed the lower court decision, saying that posting mean stuff about someone on a public website is not the same as stalking. The court focuses on the fact that the content posted to ELI wasn't sent directly to Ellis, but rather posted publicly in a place where she could (and, in fact, did) see it. It doesn't even get to the First Amendment issues, focusing just on whether or not this is stalking under Georgia's law:

The limited evidence in the record shows that Chan and others posted a lot of commentary to his website about Ellis, but it fails for the most part to show that the commentary was directed specifically to Ellis as opposed to the public. As written, most of the posts appear to speak to the public, not to Ellis in particular, even if they are about Ellis. And there is no evidence that Chan did anything to cause these posts to be delivered to Ellis or otherwise brought to her attention, notwithstanding that he may have reasonably anticipated that Ellis might come across the posts, just as any member of the Internet-using public might. The publication of commentary directed only to the public generally does not amount to “contact,” as that term is used in OCGA § 16-5-90 (a) (1), and most of the posts about Ellis quite clearly cannot form the basis for a finding that Chan contacted Ellis.

To the extent that a few of the posts may come closer to “contact” — including, for instance, the open letter to Ellis, which Chan may actually have intended as a communication to Ellis — their publication still does not amount to stalking. Even assuming for the sake of argument that Chan “contacted” Ellis by the publication of any posts, the evidence fails to show that such contact was “without [her] consent.” OCGA § 16-5-90 (a) (1). This is not a case in which Chan sent a message to Ellis by electronic mail, linked commentary to her social media account, or posted commentary on her website. To the contrary, the commentary about which Ellis complains was posted on Chan’s website, and Ellis learned of that commentary — that is, it arguably was communicated to her — only as a result of her choice to discover the content of the website. The evidence shows that Ellis visited the website herself — it appears, in fact, that she registered herself as an authorized commentator on the website — and that she had others visit the website and report back to her about the commentary published there. Generally speaking, our stalking law forbids speech only to the extent that it is directed to an unwilling listener, and even if Ellis did not like what she heard, she cannot be fairly characterized as an unwilling listener. Ellis failed to prove that Chan “contacted” her without her consent, and the trial court erred when it concluded that Chan had stalked Ellis.

The only mention of the First Amendment comes in a footnote, in response to the part of the paragraph above, where the court notes that Ellis was not an "unwilling listener" as required under the law, noting that even so, if the speech is protected by the First Amendment, the stalking law wouldn't apply:

Even then, if the speech is protected by the First Amendment, it is excluded from the scope of our stalking law. See OCGA § 16-5-92 (“The provisions of Code Sections 16-5-90 and 16-5-91 shall not apply to persons engaged in activities protected by the Constitution of the United States or of this state . . . .”).

But, by determining that the blog posts are not even stalking, the court avoided that question altogether. Either way, another important victory for free speech online, overturning a bad ruling that would have resulted in serious chilling effects for online speech.

Filed Under: copyright, copyright trolling, criticism, first amendment, georgia, linda ellis, matt chan, matthew chan, stalking, the dash
Companies: eli, extortion letter info

Judge Suggests Attorney General Jim Hood Is Unconstitutionally Threatening Google 'In Bad Faith'

from the ya-think? dept

About a month ago, we noted that a federal court had granted a temporary injunction blocking a subpoena issued by Mississippi Attorney General Jim Hood, demanding all sorts of information from Google. At the time, the judge only said that Google's argument was "stronger" than Hood's, but said a full ruling would come out in time. That full ruling [pdf] is now out, and boy, does it make Jim Hood's anti-Google vendetta look questionable -- specifically saying that there is "significant evidence of bad faith" on the part of Hood to try to use his government position to unconstitutionally coerce Google into making changes to its service that it has no legal obligation to make.

If you don't recall, Hood has a long-standing obsession with Google, despite having an astounding level of ignorance about how the search engine actually operates. In his anti-Google rants, Hood makes statements that are blatantly false and repeatedly argues that Google is to blame merely because its search engine finds websites that Hood's office doesn't like and doesn't think should exist at all. And that doesn't even touch on the now known fact that the MPAA secretly funded Hood's investigation and wrote nearly every word of the threatening letters sent to Google.

While Hood and various MPAA supporters have insisted that he's clearly in the right, at least federal judge Henry Wingate doesn't see much to support that. Hood tried desperately to keep this issue out of federal court, using a variety of claims, including the so-called "Younger Abstention" which argues that federal courts should stay out of certain issues. However, as Wingate notes, that only applies in three specific cases, none of which apply to Hood's campaign against Google -- and, even if any of them did apply, there's a further exception for "bad faith" -- and Wingate is pretty convinced that Hood is acting in bad faith:

Moreover, even if the Younger elements were satisfied here, the court would not be required to abstain here because an exception to the application of the doctrine applies. Indeed, federal courts may disregard the Younger doctrine when a state court proceeding was brought in bad faith or with the purpose of harassing the federal plaintiff... Google has presented significant evidence of bad faith, allegedly showing that Attorney General Hood’s investigation and issuance of the subpoena represented an effort to coerce Google to comply with his requests regarding content removal. As previously discussed, the Attorney General made statements, on multiple occasions, which purport to show his intent to take legal action against Google for Google’s perceived violations. When Google declined to fulfill certain requests, the Attorney General issued a 79-page subpoena shortly thereafter. The court is persuaded that this conduct may evidence bad faith on the part of the Attorney General.

The court also notes that Hood clearly recognizes that many of his attacks on Google are blocked by Section 230 of the CDA (which, again, say you can't blame a service provider for actions of its users), because Hood himself signed a letter to Congress asking for Section 230 to be amended to exempt investigations by state attorneys general (we wrote about that dangerous effort at the time as well).

From there, Judge Wingate notes that it seems clear that Hood is likely violating Google's First Amendment rights too, even noting that the subpoena itself appears to be retaliation for protected free expression:

Furthermore, the court also is persuaded that Google has demonstrated a substantial likelihood that it will prevail on its claim that Attorney General Hood has violated Google’s First Amendment rights by: regulating Google’s speech based on its content; by retaliating against Google for its protected speech (i.e., issuing the subpoena); and by seeking to place unconstitutional limits on the public’s access to information. First, the relevant, developing jurisprudence teaches that Google’s publishing of lawful content and editorial judgment as to its search results is constitutionally protected.... The Attorney General’s interference with Google’s judgment, particularly in the form of threats of legal action and an unduly burdensome subpoena, then, would likely produce a chilling effect on Google’s protected speech, thereby violating Google’s First Amendment rights.

Additionally, it is well-settled that the Attorney General may not retaliate against Google for exercising its right to freedom of speech by prosecuting, threatening prosecution, and conducting bad-faith investigations against Google.... As explained supra, Google has submitted competent evidence showing that the Attorney General issued the subpoena in retaliation for Google’s likely protected speech, namely its publication of content created by third-parties. Given the gravity of the rights asserted herein, the court finds it appropriate to enjoin further action on behalf of the Attorney General until a determination on the merits of Google’s claims is made.

Judge Wingate also sides with Google on the 4th Amendment, noting that the broad subpoena appears to be a "burdensome fishing expedition" that goes well beyond what the Attorney General is allowed to request.

Google also wins on the key issue that the MPAA was using Hood to press: how it handles searches for copyright-covered material. As Google points out, copyright is a federal law issue, not a state law issue, so the requests regarding copyright are preempted by federal law. Hood (and, apparently, his MPAA-paid lawyers who helped draw up the subpoena) tried, weakly, to get around this preemption by arguing that by finding unauthorized material, Google was "misleading customers." That doesn't fly:

The Attorney General admits that certain requests contained in the subpoena “could arguably be used to show copyright infringement” (AG Response, p. 30), but argues that the same information could also be used to expose Google’s various practices of misleading customers. The court is not persuaded that the Attorney General’s posited theoretical basis for making these requests is sufficient for the purpose of rebutting Google’s preemption allegation.

Basically, the judge clearly recognizes Hood's effort for what it was: a broad fishing expedition that was partly "retaliation" against Google for daring to stand up for its right to run an online search engine. The case is far from over, but Hood (and his MPAA-assisted team) are going to have to move on to some other plan of attack. Maybe (just maybe), they can focus on (1) going after actual criminals, rather than made up ones and (2) telling the MPAA to learn how to innovate, rather than blame Google for its own failures.

Filed Under: attorneys general, bad faith, blame, copyright, dmca, first amendment, henry wingate, jim hood, mississippi, safe harbors, search engines, section 230
Companies: google

Lawsuit Over DHS First Amendment-Violating Suspicious Activity Reports Given Green Light By Judge

from the Get-a-job,-terrorist! dept

Say what you will about the internet, but the nation's best conspiracy theorists are employed by the US government. A case involving five individuals who ended up in DHS Suspicious Activity Reports (SARs) is being allowed to move forward. What's remarkable about the lawsuit's allegations is how little it takes to find yourself on the receiving end of extra surveillance and attention.

At the heart of the lawsuit are the SARs themselves -- the paperwork generated with the assistance of "see something, say something" tips from civilians, anything law enforcement/security guards consider to be a "bit off," and the many scattered DHS Fusion Centers' desire to appear useful and fundable.

Case in point: California resident Wiley Gill.

Lead plaintiff Wiley Gill is a white man who converted to Islam as a student at California State University, Chico, and he drew the attention of the Chico Police Department in May 2012. (Chico is about 180 miles due north of San Francisco.) According to the SAR about Gill, the officer entered Gill’s residence in response to an apparent domestic violence incident (Gill was home alone). The officer then saw on a webpage “titled something similar to ‘Games that fly under the radar’" on Gill’s computer.

"Coupled with the fact he is unemployed, appears to shun law enforcement contact, has potential access to flight simulators via the Internet which he tried to minimize is worthy of note," the SAR, entitled "Suspicious Male Subject in Possession of Flight Simulator Game," concludes.

Unemployed. Doesn't hang out with cops. Plays games and uses the internet. All inherently suspicious because of this tenuous thread: the 9/11 terrorists used flight simulators to train for their attacks. (The SAR guidelines warn that "acquisition of expertise" related to "aviation activity" is suspicious enough to be awarded a capital "S.") Had the Chico Police Dept. bothered to toss a little respect the Fourth Amendment's way, Gill would likely be nothing more than just some guy looking for a job rather than currently involved in a federal civil rights lawsuit over government surveillance.

This tiny bit of unrelated "data" was gathered by the Chico PD, which entered Gill's residence without a warrant or his consent. According to the lawsuit filed by the ACLU, the "domestic violence call" that predicated the search of Gill's residence was likely bogus and only used as justification to search a residence the CPD planned to search anyway. For the better part of two years, Gill had several previous "interactions" with Chico police officers, almost all of them based solely on his appearance ("full beard and traditional garb," "pious demeanor") and religious activities.

Gill did nothing more than "look Muslim" and play videogames. Other plaintiffs did little more than commit photography.

Internationally-renowned photographer (and former Sara Lee/Levi's executive), James Prigoff, became the subject of a Suspicious Activity Report for trying to take photographs of something that has been previously photographed hundreds of times without incident: the "Rainbow Swash" painting that adorns a Boston oil refinery's storage tank. Prigoff was approached by the company's security guards and told he couldn't photograph the oft-photographed storage tank. Despite leaving and providing no contact information, Prigoff was visited by a member of the FBI's Joint Terrorism Task Force shortly after returning to his home in Sacramento.

Plaintiff Aaron Conklin, a graphic design student, was approached by sheriff's deputies while photographing a refinery. He was told he would be put on a "NSA watchlist."

Sometimes, all it takes to appear suspicious enough to report is to stay in the same area for an indeterminate amount of time. Another plaintiff, Tariq Razak, was described by the reporting agency as "surveying entry/exit points" of the Santa Ana Train Depot before leaving with a woman wearing "a white burka head dress." In reality, he was really waiting for mother ("white burka"), who was using the restroom.

Sometimes just doing your job can put you on a watchlist.

Khaled Ibrahim is a U.S. citizen of Egyptian descent who works for a computer network consulting and service company in Silicon Valley, California. Mr. Ibrahim is the subject of a SAR that the ACLU of Northern California obtained through a Public Records Act request. The SAR describes a “[s]uspicious attempt to purchase large number of computers.” Mr. Ibrahim had attempted to make a bulk purchase of computers from Best Buy in his capacity as a purchasing agent for his company.

The government's ideas of what might be terrorist-related activity continues to expand. And even as the DHS plumbs the depths of absurdity with its SARs, the real terrorists remain unaffected. As the ACLU notes in its lawsuit on behalf of the five plaintiffs, the GAO itself has called the program worthless, noting that it has produced nothing in the way of "results-oriented outcomes" (arrests, indictments, thwarted attacks) but has done plenty of damage to Americans' civil liberties.

But the DHS clearly wants to continue violating rights while producing no results. The government moved to dismiss this lawsuit, claiming none of the plaintiffs can prove a "legally cognizable injury" and attempted to put the blame back on the shoulders of local law enforcement agencies. This didn't sit well with Judge Richard Seeborg.

Defendants primarily frame their challenge to plaintiffs’ standing as a purported failure to allege facts showing causation and redressability. Defendants’ argument characterizes plaintiffs’ supposed injuries as arising, if at all, primarily from the actions of the “front line” state and local law enforcement authorities. Defendants contend plaintiffs have not alleged, and credibly cannot, that the scrutiny they purportedly received from state and local police, or even from private security personnel, was the result of the challenged protocols or other conduct of defendants.

The allegations of the complaint, however, show that the gravamen of the alleged injuries lie not in actions of “front line” authorities standing alone, but in the fact that those authorities, pursuant to the guidance and training provided by defendants, submit SAR reports under criteria and circumstances that are allegedly inconsistent with legal principles and policies embodied in other law. Plaintiffs’ cognizable challenge is not to the conduct of law enforcement or private security officers during the alleged encounters per se, although there is at least some implication that plaintiffs believe Defendants’ Standards lead front line personnel to overreach even at the point of making initial observations. Plaintiffs are claiming injury from what occurs AFTER the encounters, pursuant to the Standards. As such, defendants’ contentions as to causality and redressability both fail.

The harms plaintiffs seek to remedy arise directly from the existence of Defendants’ Standards. If plaintiffs can show those standards violate the APA, they will be declared invalid.

While invoking causality and redressability as the main purported shortcomings of plaintiffs’ standing, defendants also imply that merely being the subject of an SAR, in the national database, should not be deemed a cognizable injury. In light of the privacy and reputational interests involved, however, this argument is not tenable.

The lawsuit will move forward, dragging along with it the tattered reputation of the DHS and its GAO-condemned "Fusion Centers." When it takes little more than a religious belief and a browser window containing details on flight sim software to raise someone to the level of "terrorist," the underlying system is not only broken, but swiftly becoming an easy-to-use tool for racial and religious profiling. And when the fear of terrorist attacks is used as a crutch to shut down First Amendment activity, the government itself has gone as far off the rails as those who remain convinced the 9/11 attacks were an inside job. They both gather around the same rally point -- the smoking ruins of a terrorist attack -- and see nothing in their fellow citizens but enemies on the verge of violence.

Filed Under: dhs, first amendment, homeland security, sars, suspicious activity reports, wiley gill
Companies: aclu