FBI Acts Like It's Still 1960 With Its Report On 'Black Identity Extremists'

from the agency-eats-its-own-speculative-dog-food dept

We already knew Jeff Sessions was a throwback. The new head of the DOJ rolled back civil rights investigations by the agency while calling for harsher penalties and longer jail terms for drug-related crimes, while re-opening the door for asset forfeiture abuse with his rollback of Obama-era policy changes.

But it's more than just the new old-school DOJ. The FBI is just as regressive. Under its new DOJ leadership, the FBI (inadvertently) published some speculative Blue Lives Matter fanfic [PDF] -- an "Intelligence Assessment" entitled "Black Identity Extremists Likely Motivated to Target Police Officers."

There's no hedging in the title, despite what the word "likely" usually insinuates. According to the FBI, this means there's an 80-95% chance it believes its own spin.

Here's the opening sentence:

The FBI assesses it is very likely Black Identity Extremist (BIE) perceptions of police brutality against African Americans spurred an increase in premeditated, retaliatory lethal violence against law enforcement and will very likely serve as justification for such violence.

And here's what the term "very likely" means when the FBI uses it:

Beyond that, the FBI says this:

The FBI has high confidence in these assessments…

And here's how the FBI defines "high confidence."

High confidence generally indicates the FBI’s judgments are based on high quality information from multiple sources. High confidence in a judgment does not imply the assessment is a fact or a certainty; such judgments might be wrong. While additional reporting and information sources may change analytical judgments, such changes are most likely to be refinements and not substantial in nature.

What's in this open-and-shut report? What key elements lead the FBI to believe "BIEs" will be killing cops in the future? Well, it appears to be nothing more than a recounting of recent cop killings, coupled with anecdotal evidence, like the expression of anti-white sentiment in social media posts. Beyond that, there's little connecting those who have killed cops with the ethereal FBI BIE ideal. There's certainly no organization behind the killings -- only a few common factors. And those factors -- if the FBI is allowed to continue to treat "BIE" as a threat to police officers -- will do little to discourage violence against police officers.

What it will do is allow law enforcement to engage in racial profiling and to overreact to social media rants by angry black men. And it will allow the FBI to turn into the same FBI that targeted Martin Luther King Jr. and other civil rights activists during the 1960s. In fact, it almost acknowledges as much in the report.

BIEs have historically justified and perpetrated violence against law enforcement, which they perceived as representative of the institutionalized oppression of African Americans, but had not targeted law enforcement with premeditated violence for the nearly two decades leading up to the lethal incidents observed beginning in 2014. BIE violence peaked in the 1960s and 1970s in response to changing socioeconomic attitudes and treatment of blacks during the Civil Rights Movement.

The composers of this report may have a lot of confidence in their assumptions, but no one else seems to.

Daryl Johnson, a former Department of Homeland Security intelligence agent, when asked by Foreign Policy in October why the F.B.I. would create the term “B.I.E.,” said, “I have no idea” and “I’m at a loss.” Michael German, a former F.B.I. agent and fellow with the Brennan Center for Justice’s liberty and national security program, said the “Black Identity Extremists” label simply represents an F.B.I. effort to define a movement where none exists. “Basically, it’s black people who scare them,” he said.

“Could you name an African-American organization that has committed violence against police officers?” Representative Karen Bass asked Attorney General Jeff Sessions at Tuesday’s hearing. “Can you name one today that has targeted police officers in a violent manner?” It’s no surprise that he could not. Mr. Sessions, who confessed that he had not read the report, said he would need to “confirm” and would reply in writing at a later time. The F.B.I. itself admits in the report, that, even by its own definition, “B.I.E. violence has been rare over the past 20 years.”

If the report is acted on, it will be the 1960s all over again.

Although it’s unclear what actions the F.B.I. will take as a result of the report, the conclusions pave the way for it to gather data on, monitor and deploy informants to keep tabs on individuals and groups it believes to be B.I.E.s. This could chill and criminalize a wide array of nonviolent activism in ways that have terrifying echoes its infamous Cointelpro program, which investigated and intimidated black civil rights groups and leaders, including Marcus Garvey and the Rev. Dr. Martin Luther King Jr. Under this program, F.B.I. agents concocted a false internal narrative connecting Dr. King to foreign enemies, allowing agents to justify threatening to publicize his private life and encouraging him to commit suicide. This is a reminder that while the “Black Identity Extremist” designation is new, the strategy of using a vague definition to justify broad law enforcement action is not.

This is what the report looks like from the outside. It's unclear if those inside the agency feel the same way. The leaked report confirms many people's suspicions about law enforcement agencies: they view minorities as threats and will concoct narratives to support these views. There's no evidence any sort of BIE organization exists, much less the existence of a concerted effort to inflict violence on police officers. But this report is a gift to every police officer and FBI agent who really wants to believe African Americans are out to get them. Given the administration's unqualified support for law enforcement, coupled with the Commander in Chief's off-the-cuff encouragement of violence, this report is basically an invitation to start policing like it's 1960, rather than 2017.

Filed Under: black lives matter, blm, doj, extremism, fbi

AT&T Lawyers Investigating Whether Trump Had Undue Influence On DOJ Merger Review

from the cronyism-vs-cronyism dept

Given the Trump administration's rubber stamping of every mono/duopolist desire (killing net neutrality, broadband privacy rules, media consolidation limits), most expected the AT&T Time Warner merger to see approval without much fuss. After all, while the problems caused by vertical integration deals like Comcast NBC Universal are very real, it didn't seem likely that an administration running rough shod over consumer protections would give much of a damn. Especially given that Trump DOJ antitrust boss Makan Delrahim had already been on record stating he saw no problems whatsoever with the deal.

That's why leaked reports that the DOJ was suddenly considering blocking the deal came as such a surprise. Said reports indicated that the DOJ was considering a lawsuit to thwart the deal unless AT&T was willing to divest either CNN-owner Turner broadcasting, or DirecTV -- which AT&T acquired last year.

There are two generally-accepted theories as to what motivated the Trump administration to hamstring the deal, neither of which (unless you're immensely gullible) involve actually caring about the very real negative repercussions the deal will have on telecom/media markets and consumers. One is that the Trump administration is simply getting vindictive revenge against CNN for its critical coverage of the president, a path one Trump administration official said was definitely on the table in a July report in the New York Times:

"White House advisers have discussed a potential point of leverage over their adversary, a senior administration official said: a pending merger between CNN’s parent company, Time Warner, and AT&T. Mr. Trump’s Justice Department will decide whether to approve the merger, and while analysts say there is little to stop the deal from moving forward, the president’s animus toward CNN remains a wild card."

But there's another motivation here for the Trump administration: doing a favor for Rupert Murdoch. Reports have indicated that Murdoch has been pressuring the Trump administration to block the deal since at least January, since the combined company would pose a greater competitive threat to his News Corp. empire. Reports more recently indicate that Murdoch approached AT&T at least twice in the last six months looking to convince AT&T to sell CNN, an idea AT&T isn't interested in. In short, it's very possible that Trump may be using the DOJ to force AT&T to make a deal with Murdoch.

AT&T lawyers clearly smell something fishy here, and the company quickly indicated it will be asking a court for any and all communications between the DOJ and the Trump administration. Not too surprisingly, AT&T's inquiry will focus, in part, on the role Rupert Murdoch is playing in scuttling the deal:

"In the event of a trial over the $85.4 billion deal, AT&T intends to seek court permission for access to communications between the White House and the Justice Department about the takeover, said the people, who asked not to be named because the deliberations are private...AT&T will also try to get any evidence about whether Rupert Murdoch tried to influence the review, according to one of the people. Murdoch, a Trump confidant, controls 21st Century Fox Inc., the parent of Fox News. The president has praised Fox News’s coverage of his administration."

The entire affair is just another indication that 2017 is simply too weird for words. Blocking the deal on antitrust grounds is the right thing to do to protect streaming markets from AT&T's long, documented history of anti-competitive behavior. But is it still the right thing to do if the only real goal is to silence critical media voices while aiding a Trump ally's own business ventures? Pick your poison.

Filed Under: antitrust, doj, donald trump, makan delrahim, merger
Companies: at&t

Latest DOJ WTFness: Encryption Is Like A Locked House That Won't Let Its Owners Back Inside

from the spare-the-Rod,-spoil-the-horse-carcass dept

Deputy Attorney General Rod Rosenstein continues his push for law enforcement-friendly broken encryption. The ultimate goal is the same but the arguments just keep getting worse. Trying to pitch worthless encryption (i.e., encryption easily compromised in response to government demands) as "responsible" encryption is only the beginning of Rosenstein's logical fallacies.

After a month-plus of bad analogies and false equivalents, Rosenstein has managed to top himself. The path to Rosenstein's slaughtering of a metaphor runs through such highlights as the DAG claiming device encryption is solely motivated by profits and that this is the first time in history law enforcement hasn't had access to all forms of evidence. It's an intellectually dishonest campaign against encryption, propelled by the incredibly incorrect belief that the Fourth Amendment was written to provide the government with access, rather than to protect citizens from their government.

In a long article by Cyrus Farivar discussing a recent interview given by Rosenstein, the Deputy Attorney General drops this abomination of an analogy:

"I favor strong encryption, because the stronger the encryption, the more secure data is against criminals who are trying to commit fraud," he explained. "And I'm in favor of that, because that means less business for us prosecuting cases of people who have stolen data and hacked into computer networks and done all sorts of damage. So I'm in favor of strong encryption."

"This is, obviously, a related issue, but it's distinct, which is, what about cases where people are using electronic media to commit crimes? Having access to those devices is going to be critical to have evidence that we can present in court to prove the crime. I understand why some people merge the issues. I understand that they're related. But I think logically, we have to look at these differently. People want to secure their houses, but they still need to get in and out. Same issue here."

It is nowhere near the "same issue." I sincerely hope DAG Rosenstein regrets every word of this statement.

Let's streamline the analogy: People want to protect the data on their phones. People still want to be able to access this data on their phones. In no case ever has encryption prevented people from accessing the data on their phones. Forgotten passcodes might, but that's like losing house keys. You might need outside assistance to get back in.

Rosenstein's analogy skips a step. It has to. There's no way this analogy can ever work couched in Rosenstein's anti-encryption statements. People lock their houses when they leave and unlock them with their keys when they get back. Rosenstein's analogy is completely baffling, given the context of his remarks. How does strong security prevent people from "entering" their devices? It doesn't and Rosenstein knows this. It only prevents people other than the device owner from doing so.

What he's actually talking about is government access, but he can't find a credible argument for weakening the strong encryption he just claimed he believed in. And he doesn't have the intellectual honesty to say what he really means. The "they" in "but they still need to get in and out" is meant to encompass law enforcement agencies. In the context of Rosenstein's anti-encryption argument, that's the only interpretation that makes any sort of sense. Otherwise, it's a non sequitur -- one that claims strong security is somehow capable of preventing home owners from coming and going as they please.

A boneheaded analogy like this is the only rhetorical option left. That's because what Rosenstein wants -- easily-compromised "strong" encryption (i.e., "responsible encryption") -- simply cannot exist. Impossible demands can only be justified by implausible arguments. Given the swift and steady deterioration of Rosenstein's rhetoric, it's probably time to put his "Dead Horses and the Men Who Beat Them" show on ice.

Filed Under: bad analogies, doj, encryption, going dark, responsible encryption, rod rosenstein

Is Trump's AT&T Merger Roadblock A Return To Sensible Antitrust, Or Just More Cronyism?

from the raised-eyebrow dept

Given that the Trump administration has been tripping over itself to obliterate popular consumer protections (net neutrality, broadband privacy) and most media consolidation rules (largely to benefit Sinclair broadcasting), many analysts assumed that the administration would see absolutely no problem with AT&T's latest $86 billion acquisition of Time Warner. After all, such vertical integration mergers -- while they can cause very serious market harms -- are often more difficult to make a case for than mergers where direct competitors are eliminated.

Supporting that position was the fact that Makan Delrahim, Trump's new antitrust boss at the DOJ, had been on record previously stating that he saw no serious problems with the deal. That's why it was a bit of a surprise last week when reports emerged that Trump's DOJ was considering a lawsuit to block the megamerger, and may not approve the deal unless AT&T either sold off DirecTV (acquired last year) or Turner Broadcasting, owner of channels like Cartoon Network, TBS, and CNN.

Given Trump's disdain for CNN's coverage of his Presidency, many began to immediately speculate that Trump was using the merger for leverage. After all, that's what one administration official told the New York Times was on the table in a story back in July:

"White House advisers have discussed a potential point of leverage over their adversary, a senior administration official said: a pending merger between CNN’s parent company, Time Warner, and AT&T. Mr. Trump’s Justice Department will decide whether to approve the merger, and while analysts say there is little to stop the deal from moving forward, the president’s animus toward CNN remains a wild card."

So the idea that Trump would use the merger as leverage to take aim at CNN was clearly something that was on the table. But when asked about the decision while on Air Force One last week, Trump insisted that the decision wasn't his, but was made by "a very respected person," presumably Delrahim:

"Speaking to reporters on Air Force One, Trump said he “didn’t make that decision — it was made by a man who’s a very respected person, a very, very respected person..."I did make a comment as to what I think,” Trump also acknowledged. Previously, the president has blasted AT&T and Time Warner’s merger plans — and during the 2016 election, he threatened to block the companies from combining under his watch.

"I do feel you should have as many news outlets as you can — especially since so many are fake," Trump continued, according to a pool report. Then, he concluded: “I didn't make a statement, but I did make a statement long before. So we’ll see — that probably ends up being litigation, maybe not, we’ll see how it all plays out."

Granted, forcing AT&T to divest either DirecTV or Turner Broadcasting makes sense from a regulatory perspective. Consumer advocates worry that AT&T's greater size, leverage, and control over broadcast content (particularly HBO) will make it harder for streaming providers to license the content they need to compete. They're also worried that AT&T will leverage this advantage -- in concert with its monopoly in broadband and stranglehold over tower backhaul -- to engage in more of the anti-competitive behavior it's well known for (zero rating, etc.).

But it's hard to square this return to sensible antitrust enforcement with an administration that has been taking a mindless hatchet to media consolidation and consumer protection rules. What kind of thought process involves seeing no problem with gutting media consolidation rules (which devastates smaller news outlets and media diversity), yet suddenly having a strong disdain for the often more-murky negative impact of vertical integration? One possible explanation for the policy asymmetry may reside with Rupert Murdoch, who has apparently been trying to get AT&T to offload CNN to News Corporation for much of the year:

"Rupert Murdoch telephoned AT&T Chief Executive Randall Stephenson twice in the last six months and talked about cable network CNN, sources briefed on the matter told Reuters on Friday. According to one of the sources, the 86-year-old executive chairman of Twenty-First Century Fox Inc offered to buy CNN in both conversations.

And again, if you head back to media reports from January, Murdoch had been pressuring the Trump administration to make life harder on AT&T Time Warner, a News Corp. competitor:

"If Fox News’ politics ultimately solidify as more pro-Trump than they were during the campaign, that might be to the benefit of Murdoch’s business interests. According to a well-placed source, Trump has asked Murdoch to submit names for FCC Chairman. Murdoch, another source said, also wants conditions put on the AT&T-Time Warner merger, and he could lobby Trump to make that happen."

Again, it's entirely within the realm of possibility that an administration that has been protecting monoplists and gutting consolidation protections is having an uncharacterstic flirtation with sensible antitrust enforcement under Delrahim. But it's also entirely possible, especially when looking at the administration's behavior in full context, that Trump's DOJ is giving AT&T a hard time simply to aid a political ally and to quash a critical media outlet.

Filed Under: antitrust, cnn, doj, donald trump, makan delrahim, merger
Companies: at&t, time warner

DOJ: Civil Asset Forfeiture Is A Good Thing That Only Harms All Those Criminals We Never Arrest

from the nothing-good-to-say-but-all-the-space-in-the-world-to-say-it dept

Deputy Attorney General Rod Rosenstein has taken a brief vacation from his "Responsible Encryption World Tour" to defend the merits of something equally questionable: civil asset forfeiture. [h/t Meaghan Ybos]

As is the case with any article defending the practice of taking "guilty" stuff from people without even bothering to determine whether the people were actually guilty of anything, Rosenstein's WSJ editorial glosses over the thousands of abuses to home in on a high profile case: the prosecution of Bernie Madoff.

Thanks to civil asset forfeiture, the Department of Justice is announcing today the record-setting distribution of restitution to victims of Bernard Madoff’s notorious investment fraud scheme. We have recovered $3.9 billion from third parties—not Mr. Madoff—and are now returning that money to more than 35,000 victims. This is the largest restoration of forfeited property in history. Civil forfeiture has allowed the government to seize those illicit proceeds and return them to Mr. Madoff’s victims.

To be clear, assets taken from Madoff were seized via criminal asset forfeiture, which requires a conviction. Rosenstein's decision to open with this glosses over this difference, allowing the reader to think civil/criminal asset forfeiture are barely distinct entities. His op-ed doesn't actually say how much of that $3.9 billion came from civil asset forfeiture -- a process that has nothing to do with a criminal prosecution like Madoff's.

From there, Rosenstein says the expected stuff: civil asset forfeiture is just a way of crippling criminal enterprises, despite it being predicated on one-sided accusations about the allegedly illegitimate origin of seized property and tied to a judicial process that discourages citizens from attempting to reclaim their possessions.

The opening paragraph also makes it appear as though civil asset forfeiture is often used to return unlawfully obtained assets to victims of crime. Nothing could be further from the truth. While this occasionally happens in criminal forfeiture cases, the lack of criminal charges in civil forfeiture cases makes it extremely unlikely there will be any "victims" to "return" seized assets to.

In most cases, the agency performing the seizure is allowed to directly benefit from it. Whether it's used to pay for new equipment or offset investigatory expenses, seized property rarely ends up back in the hands of victims.

But you won't be hearing any of that in Rosenstein's pro-forfeiture pep talk. Instead, he presents civil forfeiture as a skillfully-wielded scalpel, rather than the property-grabbing cudgel it actually is.

Some critics claim that civil asset forfeiture fails to protect property rights or provide due process. The truth is that there are multiple levels of judicial protection, as well as administrative safeguards.

First, money or property cannot be seized without a lawful reason. The evidence must be sufficient to establish probable cause to believe a crime was committed. That is the same standard needed to justify an arrest.

Second, if anyone claims ownership of the property, it may be forfeited only if the government presents enough evidence in court to establish by a preponderance of the evidence it was the proceeds of crime, or was used to commit a crime.

Courts apply the “beyond a reasonable doubt” standard only in criminal cases. That high threshold of proof is appropriate when the stakes involve a person’s criminal record and potential imprisonment. But all other lawsuits, no matter how much money is at issue, use the normal civil standard. There is no logical reason to demand the elevated criminal standard in a lawsuit about illicit proceeds.

First, the money can be seized for any reason, with justification supplied after the fact. Stating law enforcement needs "probable cause" to seize property is simply untrue. Rosenstein knows this because he points out the standard of evidence needed to secure the forfeiture is actually lower than the standard needed to secure a warrant: "preponderance of evidence." If probable cause were actually needed, drivers and travelers wouldn't have to worry nearly as much about having their cash seized by highway patrol officers during traffic stops or by DEA agents while passing through airport security. Pretextual stops and scanning passenger manifests for one-way ticket purchases are no one's idea of "probable cause."

Furthermore, if the standard of evidence needed prior to seizure was actually the same as the requirement to secure an arrest warrant, more seizure victims would be arrested. But they're not. They're usually free to go, minus whatever law enforcement officers have taken from them.

As for the last part, Rosenstein is right: we shouldn't need to change the standard of evidence in civil cases. But that's not where the change is needed. If property is being taken from criminals -- as Rosenstein and other forfeiture supporters claim -- then all seizures should be of the criminal variety: a conviction should be required. This leaves civil lawsuit evidence requirements unchanged… just the way Rosenstein prefers it.

Then there's this, which Rosenstein offers up as some sort of proof that the government is in the right at least 80% of the time when it takes property from citizens without charging them with crimes:

About 80% of the time, nobody even tries to claim the seized assets.

Well, let's look at this. Rosenstein talks billions in his Madoff anecdote, but the reality of civil asset forfeiture is a majority of seizures fall well under the $1,000 mark. Considering the long, uphill battle facing forfeiture victims, anything short of several thousands dollars usually isn't worth the effort. In those cases, the expenses of challenging the forfeiture would outweigh the the value of the property recovered. This is a stupid stat that proves nothing.

The years of documentation of widespread forfeiture abuse by law enforcement agencies? It's reduced to this by the Deputy Attorney General:

To be sure, law-enforcement officers sometimes make mistakes.

Come on, Rod. This is just embarrassing. You want the private sector to trust you and get on board with DOJ encryption key escrow, etc.? Maybe stop lying to the public. Maybe discontinue this gross minimization of repeated, abusive law enforcement behavior. Maybe do something more to curb forfeiture abuse. Hell, try doing anything at all. The only thing the DOJ has done in recent months is open back up the federal forfeiture adoption program -- something that has been abused for years by law enforcement agencies looking to route around restrictive state laws.

It's unsurprising the DOJ would argue publicly that civil asset forfeiture is A-OK and good for America. It's just unsettling that the arguments are this bad.

Filed Under: bernie madoff, civil asset forfeiture, crimes, doj, rod rosenstein

DOJ Still Demanding Identity Of Twitter Users Because Someone They Shouldn't Have Arrested Tweeted A Smiley Emoji

from the this-case-remains-fucked-up dept

Last month, I had two blog posts about a particularly insane lawsuit being pushed by the Justice Department against a computer security researcher, Justin Shafer. As we explained, the arrest and prosecution of Shafer appeared to be the result of a truly ridiculous vendetta against Shafer by the FBI because Shafer got angry over a previous (and totally misguided) decision to raid his home, after he properly disclosed security problems involving some dental practice software. It seems clear that Shafer never should have been arrested (and never should have had the FBI raid his house three times over just a few months). Of course, what first brought the case to my attention was an even more ridiculous part of the story, in which the DOJ had sent a subpoena to Twitter demanding basically all info on five Twitter users -- even though two of them don't hide their identity -- because Shafer tweeted a smiley emoji at them.

That story is even more insane than it sounds, but I'm not going to repeat the details here -- I'll just repeat: the case involved the DOJ demanding the identity (and more) of five Twitter users because someone else (who they're railroading over bogus charges) sent a smiley emoji to them on Twitter where they were discussing a different lawsuit altogether.

We now have two updates on that story: (1) Shafer is appealing the fact that he's still in jail, months later and (2) the DOJ has refused to withdraw the emoji subpoena. Yes. You read that right. The DOJ is doubling down, demanding the identity (and more) of Twitter users because someone they never should have arrested, sent a smiley emoji to them. We can cover that second point first because there's not much more to say beyond "What the fuck is wrong with the DOJ?" As you may recall, the five Twitter users whose info was sought by the subpoena included @dawg8u ("Mike Honcho"), @abtnatural ("Virgil"), @Popehat (Ken White), @associatesmind (Keith Lee) and @PogoWasRight (Dissent Doe). Ken White and Keith Lee are both known (and each has blogged about the situation). The rest are at least partially pseudonymous. Dissent Doe, for one, has strong reasons for retaining anonymity, given her focus on data breaches and privacy issues. She revealed the DOJ's stunning decision to keep going over the weekend, noting that she now needs to fight the subpoena in court.

Dissent Doe explained to me later that her lawyers have tried, repeatedly, to contact the DOJ about this ridiculous subpoena, and the DOJ has ignored all attempts to communicate. Twitter has told her that any motion to quash the subpoena needs to be filed this week. She also notes, appropriately, that she's "really really ticked off" about all of this. We all should be.

And, just to be clear, there is no way the subpoena is even remotely Constitutional. Not even armchair lawyers could possibly think so. Over and over again, courts have said that anonymity is protected under the First Amendment, and you need to have very strong reasons to pierce the anonymity. The key case here is McIntyre v. Ohio Elections Commission, but plenty of others have weighed in since then. As we pointed out, the recent Awtry v. Glassdoor case nicely summarizes the history of cases protecting anonymity under the First Amendment:

The Supreme Court has recognized that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995). Indeed, “[t]he right to speak anonymously was of fundamental importance to the establishment of our Constitution.” Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088, 1092 (W.D. Wash. 2001) (citing McIntyre, 514 U.S. at 341-42). In particular, “Justice Black . . . reminded us that even the arguments favoring the ratification of the Constitution advanced in the Federalist Papers were published under fictitious names.” McIntyre, 514 U.S. at 342 (citing Talley v. California, 362 U.S. 60, 64 (1960)). So too were the responses of the anti-federalists, which were published by authors who used such fictitious names as “Centinel,” “Brutus” and “The Federal Farmer.” In re Anonymous Online Speakers, 661 F.3d 1168, 1172-73 (9th Cir. 2011).

Further, it is well-established that anonymous speech on the Internet, like other types of anonymous speech, enjoys First Amendment protection. In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011)(“online speech stands on the same footing as other speech—there is `no basis for qualifying the level of First Amendment scrutiny that should be applied’ to online speech”) (quoting Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997)). As the Ninth Circuit has explained, “the ability to speak anonymously on the Internet promotes the robust exchange of ideas and allows individuals to express themselves freely without `fear of economic or official retaliation . . . [or] concern about social ostracism.'” Id.(quoting McIntyre, 514 U.S. at 341-42).

First Amendment protection of anonymous speech “is not unlimited, however, and the degree of scrutiny varies depending on the circumstances and the type of speech at issue.” Id. Political speech is considered to be “core” speech and is afforded the highest level of First Amendment protection. McIntyre, 514 U.S. at 346. Online messages such as the ones at issue here are also entitled to some level of First Amendment protection, even if the hurdle for overcoming that protection is less stringent than it is for political speech. See In re Anonymous Online Speakers, 661 F.3d 1168 at 1177; see also Highfields Capital Mgmt., L.P. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2005) (finding that identity of individual who anonymously posted derogatory comments about a company on an online message board was protected from disclosure under the First Amendment); Art of Living Foundation v. Does 1-10, No. 10-cv-5022 LHK, 2011 WL 5444622, at *5 (N.D. Cal. Nov. 9, 2011) (finding the standard articulated in Highfields applied to anonymously posted online commentary criticizing the plaintiff’s organization).

Given that tons of people are pointing this out publicly, what possible reason could the DOJ have for continuing to push Twitter to cough up this info other than to just be assholes?

As for the second update: Shafer has appealed the decision of a magistrate just revoking his pretrial release. The filing, by lawyers Tor Ekeland and Frederic Jennings, is... quite a read (and even cites my articles). It certainly doesn't hold back:

The government accuses Justin Mark Shafer of putting an FBI agent and his wife in substantial emotional distress and publishing restricted information about that FBI agent with the intent to incite violence against him. But nowhere in the record, or in the discovery in this case, is there any true threat of violence against anyone. There is no explicit language articulating any kind of threat. The “restricted” information in question was a prior home address for the FBI agent, publicly available on the internet. This entire case is built on innuendo and speculation that withstands neither constitutional nor statutory scrutiny. It is a chilling example of federal law enforcement overreach, and has serious ramifications for constitutional free speech and due process in relation to the internet and computer law. If the government’s accusations in this case are a crime, then millions of social media using Americans are subject to the prosecutorial whim of the Department of Justice.

The factual bases of the government’s bare bones indictment are a handful of public tweets; a Facebook friend request and message sent to a public Facebook account; the following of a public Twitter account;1 and two emails to an FBI Agent – one with a 😊 emoji and another inquiring about the status of a report of a patient privacy violation. The Defendant made no attempt to mask his identity, and the FBI never contacted the Defendant to express any concern or to ask him to stop his communications. Instead they arrested him. And any claim that he engaged in a sustained course of conduct with a continuity of purpose to cyberstalk or threaten are ludicrous when compared to facts embodied in the case law regarding these statutes.

These accusations led to a pretrial release order so broad it functioned as a prior restraint on Mr. Shafer’s constitutional right to speak about the accusations made against him. When he sought to do so – through a post on his work-related blog – the magistrate judge revoked release, broadly interpreting the release condition terms and finding a violation of those conditions.

An innocent man—who the government has not charged, and cannot charge, with any violent crime, nor with any history of violent crime— is now in jail on the basis of protected speech.

I recommend people read the entire document, as it goes into great detail (even beyond my original posts) about the vindictive nature of the FBI's vendetta against Shafer -- not for doing anything wrong, mind you -- but for being upset that the FBI raided his house and took all his electronics twice for completely bogus reasons. And it's not just Shafer, but Shafers three kids who are now traumatized over the mutliple FBI raids, in which agents pointed weapons at the children, or denied their parents the ability to get the children out of their rooms for extended periods of time.

The children now suffer currently from trauma and substantial emotional distress as a result of the repeated armed FBI raids. The Shafers’ three-year old is now unable to sleep alone in her room. Their (now) six-year old is struggling and withdrawn in school, where he previously excelled. Their ten-year old is now afraid to be near open shades, for fear of being surveilled.... Their father has not come home since April 18, 2017, because he is in jail awaiting trial.

As for why Shafer has been in jail all this time? Apparently it's because he wrote a blog post about the case. You can read that blog post here. I wouldn't necessarily say that the blog post was a good idea, because he's clearly venting his anger about the arrest and the treatment by the FBI and Special Agent Nathan Hopp in particular. But it hardly meets the criteria of threatening Hopp or "contacting" him via social media. And yet, since Shafer was barred from either of those things as condition for pretrial release, he was brought back in and has been in jail ever since. That raises a whole new set of First Amendment questions. Shafer is in jail for blogging.

During the period of Mr. Shafer’s pretrial release, he committed no crimes. He used no illegal or prohibited substances. He neither fled nor attempted to flee. He did nothing that posed a threat to the safety of any person or the community. He simply wrote a blog post comprised of constitutionally protected speech criticizing his prosecution. (See Ex. C, April 14, 2017 Blog Post) For this he has been taken away from his wife and children.

Shortly after the blog post was published, Mr. Shafer received a notice of potential violation of his pretrial conditions of release.

On April 18, 2017, a revocation hearing was held before Magistrate Judge Toliver. The government referenced vague concerns regarding flight risk, and claimed that the blog post Mr. Shafer had written was evidence of danger to the community or violation of the no-contact order between Mr. Shafer and SA Hopp. The government argued at the revocation hearing that merely “criticizing” SA Hopp in the “blog site” [sic] was indirect contact. (Tr. 5:8-6:10 (Apr. 18, 2017).) At the close of the revocation hearing, Magistrate Judge Toliver revoked Mr. Shafer’s pretrial release order. He has been detained since.

More specifically, Shafer's lawyers point out:

The original terms of his supervised release violated his free speech rights under the First Amendment. Imprisoning him pre-trial based on his speech is unconstitutional. This current, unconstitutional incarceration before an adjudication by a jury of his peers hampers Mr. Shafer’s ability to put on an effective defense, as he is not free to diligently prepare for his defense with his attorneys due to constant monitoring and harassment in jail. This violates his Fifth Amendment Due Process rights and his Sixth Amendment right to mount an effective defense. Moreover, none of Congress’s narrowly prescribed exceptions to an innocent defendant's presumption of liberty apply here. Mr. Shafer should be released pre-trial under appropriate conditions because his current incarceration violates the Constitution and federal law.

Everything about this case is crazy. We've certainly seen overreach by the DOJ in the past, but this case seems like a pretty blatant example not just of overreach, and not just of the DOJ doing whatever the fuck it wants, but of it doubling down to violate the rights of people just because it doesn't like being called out about it.

Filed Under: anonymity, cfaa, disclosure, dissent doe, doj, fbi, first amendment, identity, justin shafer, keith lee, ken white, nathan hopp, popehat, subpoena, vendetta
Companies: twitter

DOJ Finally Drops Case Against Protester Who Laughed During Jeff Sessions' Confirmation Hearing

from the laughs;-lasts dept

A small bit of good news from our lol-worthy Justice Department: federal prosecutors have decided they're no longer interested in jailing someone for laughing at the Attorney General. That isn't the entirety of the story (or the dropped charges, for that matter), so here's a little background.

Back in January, Desiree Fairooz attended Jeff Sessions' confirmation hearing. Statements made by a legislator provoked an unfortunate response from this pink-hatted attendee.

Fairooz, a retired children's librarian and demonstrator affiliated with the organization Code Pink, let out a laugh during a Senate hearing back in January after Sen. Richard Shelby (R-Ala.) said Sessions had a “clear and well-documented” record of “treating all Americans equally under the law.” (Sessions had faced strong opposition from civil rights organizations and was rejected as a federal judge in the 1980s over concerns about his past comments on race.)

This very slight blow to Senate hearing decorum could have been ignored. Perhaps Fairooz could have been approached quietly and asked to keep her amusement to herself. Instead, a rookie Capitol police officer decided to arrest Fairooz. This led to a verbal altercation with Fairooz loudly protesting her removal from the hearing.

She was convicted in July by a jury -- but supposedly not because she laughed out loud.

Desiree Fairooz, an activist associated with the organization Code Pink, was found guilty on two counts: one for engaging in “disorderly or disruptive conduct” with the intent to disrupt congressional proceedings and a separate count for parading, demonstrating or picketing.

Several jurors who spoke with HuffPost after the verdict emphasized that they were focused on Fairooz’s actions after a rookie Capitol Police officer approached Fairooz when she laughed at Sen. Richard Shelby’s (R-Ala.) claim…

The jurors made this assertion post-conviction but the government appeared to believe laughter was enough of a crime in and of itself to justify pursuing a conviction. The judge disagreed.

[A] judge tossed out the jury’s conviction in July, finding that prosecutors had improperly argued during the trial that “laughter is enough, standing alone,” to merit a conviction. D.C. Superior Court Chief Judge Robert Morin said he found it “disconcerting” that the government had explicitly argued during the trial that laughter in and of itself was enough for a guilty verdict.

But there was still more prosecuting to be done, apparently. Fairooz rejected the government's offer of a plea deal, which would have required her to plead guilty to laughing at a legislator and/or disrupting the proceedings. So the government decided it would take another swing at securing a conviction. Maybe this was just a ploy to push Fairooz into an unforced error -- accepting the previously-rejected plea deal. Whatever the case, the government has now decided it's through trying to prosecute laughter.

Justice Department prosecutors have dropped their case against a woman who laughed at now-Attorney General Jeff Sessions during his confirmation hearing. Desiree Fairooz was scheduled to face trial for a second time next week, but a DOJ prosecutor entered a nolle prosequi filing in the case on Monday indicating the department is dismissing the charges.

The DOJ is wise to do this. It has plenty of other ways to waste taxpayer dollars that won't so closely resemble punishing free speech. (Uh... scratch that last part.) It also would have had an uphill battle arguing its case in front a judge who already determined Fairooz's laughter couldn't be used as part of the prosecution's case. And if the laughter couldn't be used to justify the officer's arrest and removal of Fairooz, then it would be extremely difficult to claim the ensuing disruption was itself a criminal act. The hasty decision of a rookie Capitol cop pretty much defeats that line of reasoning by tainting the arrest itself. With nowhere else to go and faced with an arrestee unwilling to cave, the DOJ has decided to exit this debacle as gracefully as possible.

Filed Under: desiree fairooz, doj, jeff sessions, laughter, protestor

First Circuit Appeals Court Latest To Overturn Playpen Suppression Order

from the Rule-41-changes-create-another-foregone-conclusion dept

A third Appeals Court has ruled on the tactics the FBI used to track down users of a dark web child porn site. And the third one to rule -- the First Circuit Appeals Court -- continues the government's shut out of suppression orders at the appellate level.

In the two previous cases to reach this level (Tenth and Eighth), the judges found the FBI's Network Investigative Technique to be a search under the Fourth Amendment. This wasn't much of an issue because the FBI had a warrant. The real issue was the warrant's reach: it was issued in Virginia but the NIT found a home in computers all over the US, not to mention the rest of the world.

The lower courts' decisions ordering suppression of evidence for the use of an invalid warrant have all been rejected by US appeals courts. Good faith has been granted to the agent securing the warrant, thus preventing suppression of evidence. In one case, the court even conjectured the deterrent effect of evidence suppression made little sense now that the FBI has statutory permission to ignore jurisdictional limitations when seeking warrants.

The First Circuit Appeals Court's decision [PDF] is no different than those preceding it. The previously-granted suppression is reversed and the FBI awarded good faith for its warrant application, which clearly told the Virginia magistrate judge the agency intended to violate the warrant's jurisdictional limits. This decision, however, limits its discussion to the good faith exception and the judges refuse to draw possibly precedential conclusions about the magistrate judge's legal authority to grant a "search anywhere" warrant.

The "search anywhere" part of the warrant the lower court found invalid is all academic at this point. Rule 41 jurisdictional limits have been lifted. But that did not happen until after this warrant was procured and deployed. Like the Eighth Circuit before it, the First Circuit decides this after-the-fact rule change somewhat negates the deterrent effect of suppression.

The First Circuit says good faith prevails, as the warrant was more or less explicit in its intentions and still managed to be signed by a judge. In fact, the court praises the FBI for applying for a warrant it likely knew violated pre-rule change jurisdiction limitations.

We are unpersuaded by Levin's argument that because, at least according to him, the government was not sure whether the NIT warrant could validly issue under Rule 41, there is government conduct here to deter. Faced with the novel question of whether an NIT warrant can issue -- for which there was no precedent on point -- the government turned to the courts for guidance. The government presented the magistrate judge with a request for a warrant, containing a detailed affidavit from an experienced officer, describing in detail its investigation, including how the NIT works, which places were to be searched, and which information was to be seized. We see no benefit in deterring such conduct -- if anything, such conduct should be encouraged, because it leaves it to the courts to resolve novel legal issues.

I guess the court would prefer to tangle with legal issues it hasn't seen before. This would be one of them -- at least in terms of thousands of searches performed with a single warrant from a seized child porn server located in Virginia. The legal issues may be novel but the end result is more of the same: good faith exception granted and the admission of evidence questionably obtained.

Filed Under: doj, evidence, fbi, first circuit, gag order, nit, playpen, suppression order

Judge Doesn't Care Much For DOJ's Boilerplate, Refuses To Grant One Year Gag Order

from the no,-you-shut-up dept

Last week, the DOJ changed its policy on gag orders. In the past, the DOJ loved attaching indefinite gag orders to nearly everything it submitted to service providers. This prompted some backlash in the form of courtroom challenges. It appears the DOJ has decided to choose its battles more carefully. Gag orders can still accompany warrants and subpoenas, but they now have a more definitive end date.

Barring exceptional circumstances, prosecutors filing§ 2705(b) applications may only seek to delay notice for one year or less.

Naturally, the government has taken its own policy to mean it should ask for the new maximum in every case. A subpoena gag order requested by the US Attorney's Office asks for a year's worth of silence from Google. But Judge Orenstein -- one of the members of the post-Snowden "magistrates revolt" -- doesn't find the government's boilerplate persuasive. (h/t Riana Pfefferkorn) From the order [PDF]:

The government seeks an order requiring subpoena recipient Google Inc. ("Google") not to notify any person (aside from Google's counsel) of the subpoena's existence for a period of one year. Docket Entry ("DE") 1 ("Application"). For the reasons set forth below, I deny the motion without prejudice to renewal. In short, the government has not made the factual showing necessary to secure the relief it seeks, and it does not explain why non-disclosure is needed for an entire year.

Judge Orenstein then goes on to deconstruct the government's boilerplate.

First, the government continues to rely on its earlier formulation that the investigation it seeks to advance through the issuance of a subpoena "is neither public nor known to all of the targets of the investigation." That suggests that there are investigative targets who do know of the investigation's existence. If that is the case, then the risk already exists that such targets will take steps to flee, alter or destroy evidence, or otherwise impede the investigation's progress; at a minimum, I cannot infer that Google's disclosure of the subpoena's existence would create or exacerbate any such risk.

Second, the Application provides no information concerning the person about whom the government seeks to secure information from Google: I know nothing of his or her status as a witness, victim, subject, or target with respect to the investigation; nor does the record reveal whether the person has any relationship with any subject or target that might give him or her an incentive to reveal the subpoena's existence and thereby potentially impede the investigation.

Third, while the Application reports that the subject account "is believed" (by some unidentified person) to be held or used by an individual not in custody who lacks full knowledge of the investigation, it provides nothing to shed any light on the basis for that belief.

Fourth, even assuming the belief to be well grounded, it is too vague to support the finding the statute requires. The proposition that the account holder or user does not yet know "the extent of the investigation" suggests that that person does know something about it – but whether that knowledge suffices to provide the ability or motivation to take any action that would impede the investigation is impossible to discern. I assume the government's concern is genuine, and that it may well have a sufficient factual basis, but the existing record gives me no way to predict, as I must to grant the requested relief, that Google's disclosure of the subpoena will have any adverse effect on the government's investigation.

The whole order is a fun read, with Orenstein showing his displeasure with the government's automatic demand for the maximum allowable-gag order length despite providing zero factual assertions backing its claimed need for 365 days of secrecy. Orenstein also denies the government's request to have the docket sealed indefinitely, explaining this makes no sense when it's only asking for a yearlong gag order for the subpoena.

Then he cuts straight to the heart of the matter: the government would undoubtedly ask for a longer gag order (without any specific justification) if it could. But it can't. So it's chosen to ask for the maximum allowed right out of the gate.

Until very recently, when the government sought non-disclosure orders under the SCA, it would typically avoid placing any temporal limit on the scope of the proposed order – thus effectively imposing a permanent gag on the subpoena recipient where the request was granted. The instant Application, however, seeks to compel non-disclosure "for a period of one year from the date of the proposed Order." That change appears to reflect a new policy that, "[b]arring exceptional circumstances, [such] applications may only seek to delay notice for one year or less."

But while the government plainly understands that determining the duration of non-disclosure is a discretionary matter for the court, it provides no reason for seeking the maximum duration consistent with its new policy. Thus, for example, I have no information as to the anticipated length of the remainder of the investigation to which the subpoena pertains, or whether the government anticipates that any events other than the arrest or trial of any remaining targets will obviate the need for continued secrecy. In addition to hobbling the court's ability to reach a reasoned decision, that lack of information seems inconsistent with the government's own policy. As the Rosenstein Memo makes clear, "[i]n applying for a § 2705(b) order, prosecutors should tailor the application to include the available facts of the specific case and/or concerns attendant to the particular type of investigation." Id. at 2. Accordingly, should the government renew its application, I respectfully direct it to include an explanation of the need for the proposed duration of the non-disclosure order it seeks.

The government will have to fix its application before Orenstein will consider approving its gag order request. This is some very good pushback from the magistrate -- one who's often held the government's feet to the fire. The new policy is supposed to prevent automatic requests for max gag with every subpoena and warrant, but the government has interpreted it to mean placing an opening bid for one year's silence and negotiating from there. Orenstein makes it clear he won't be accepting boilerplate justifications for lengthy gag orders.

Of course, it could be this application wasn't meant to be seen by Orenstein. It almost looks like the government hoped to slide it by the New Guy on the SDNY staff: Judge Sanket Bulsara. Its gag order request [PDF] came with a canned proposed order -- one that includes a blank line for Bulsara to sign it.

Somewhere in New York, there's an US Attorney cursing the magistrate rotation.

Filed Under: doj, gag order, james orenstein, magistrate's revolt, subpoena
Companies: google

Declassified Docs Show NSA Trying To Prosecute A Journalist For His Successful FOIA Requests

from the war-on-whistleblowers,-leakers,-and-FOIA-records-requesters dept

MuckRock has been digging into a large pile of declassified CIA documents for the past several months and has come up with some surprising finds. It recently liberated nearly 13 million pages of CIA documents -- known as the CREST archive -- via a FOIA lawsuit. Since this monumental release, MuckRock has covered everything from a CIA report on an Italian pasta shortage to deeper, darker topics like a CIA asset in Mexico being linked to a long list of atrocities.

Digging through the CIA's archives has dug up dirt on other agencies as well. Emma Best details another MuckRock/CIA gem -- one that shows the NSA attempting to prosecute a journalist for obtaining documents via FOIA requests.

Declassified documents in the Central Intelligence Agency’s archives show that while the CIA was looking to include the Freedom Of Information Act in its war on leaks, the National Security Agency was seriously considering using the Espionage Act to target target Puzzle Palace author James Bamford for using FOIA.

While Bamford has briefly discussed this on a handful of occasions, the declassified memos and briefings from NSA confirm that this was more than just an intimidation tactic or a passing thought - the NSA had truly wanted to jail a journalist for his use of public records. When the Agency determined that this was unlikely to happen, they moved on to exploring other legal avenues which could be used to punish Bamford for his FOIA work.

The chain of events leading up to the NSA's discussion about prosecuting someone for doing something the law specifically allowed unsurprisingly includes legal violations of its own the agency was hoping to keep hidden. What Bamford had obtained was a DOJ Inspector General's report detailing the CIA and NSA's abuse of electronic surveillance.

The NSA felt it should have been notified and given a chance to redact or withhold the documents. The DOJ, understandably, felt no compunction to share the documents with the subject of its investigation while the investigation was still underway. (This makes it surprising the documents ever made their way into Bamford's hands considering ongoing investigations make for handy FOIA exemptions.)

Despite the documents being made public, the NSA tried to argue they were still classified. And if Bamford was in possession of classified documents -- even ones obtained legally through FOIA requests -- he could be made to face espionage charges.

Due to “the serious consequences” of the FOIA disclosure, the NSA Director asked that the DOJ immediately contact Bamford to retrieve the documents along with all copies and to learn who else had that information. The NSA Director also requested that the DOJ tell Bamford “that his retention or disclosure of such information could result in his prosecution under 18 U.S.C. 793 or 798,” which are better known as the Espionage Act.

The government has never been shy about prosecuting whistleblowers and leakers. But in most cases, the documents at the center of the cases haven't been handed over to journalists as the result of a completely legal process. That the NSA would consider pushing for an espionage prosecution over legally-obtained documents shows how far the Intelligence Community is willing to go to protect its reputation.

Filed Under: doj, espionage act, foia, james bamford, journalism, nsa, transparency