Another NSL Challenge Is Made Public; Court Decides Government Can Keep Gag Order In Place Indefinitely

from the new-law-means-challengers-can-be-told-'no'-more-frequently dept

Another National Security Letter issued by the government has made its way into the public domain. While it's still likely years away from the full exposure finally granted to Nicholas Merrill of Calyx Internet Access (after 11 years!), this one may not stay covered up for the next decade.

The Maryland District Court finds the gag order issued along with the NSL constitutional, but has problems with the lack of an expiration date. But it still defers to the government's best judgment as to when it will be "safe" to disclose the contents of the letter. The difference here is that the court has the USA Freedom Act to contend with, which slightly alters the acceptable amount of secrecy.

Respondent notified the FBI that it intended to file a petition to set aside the nondisclosure provision of the NSL. Respondent opined that the nondisclosure provision may no longer be needed. Respondent also invited the Government to initiate a judicial review proceeding in lieu of Respondent's filing a petition. The Government responded by initiating the instant proceeding.

Just prior to Respondent's filing of its opposition to the petition, the laws governing NSLs were amended via the USA FREEDOM Act of 2015, Pub. L. 114-23, 129 Stat. 268.1 Accordingly, the Court wiIl conduct its judicial review under the most recent version of the relevant statutes, specifically, sections 2709 and 3511 of Title 18, United States Code.

The unnamed respondent (redacted and under seal) claims the government hasn't met the burden of justifying the ongoing gag order -- an argument it has been forced to make without any knowledge of what the government has submitted (or withheld) to justify the continued secrecy. The court, however, has viewed material supporting the government's contentions and, no surprise, found in favor of national security.

There is reason to believe that disclosure ofthe information subject to the nondisclosure requirement during the applicable time period may result in a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person.

The problem is, the "applicable time period" is completely open-ended. Even with the added stipulations of the USA Freedom Act, the government can keep this gag order in place for the next several years, provided the government periodically asserts that "danger" of the national security type is still present.

At present, the nondisclosure requirement in this case has no ending date, and the Court's review of its continued viability falls within an interim period between the effective date of the USA FREEDOM Act of 2015, which directs the Attorney General to "adopt procedures with respect to nondisclosure requirements ... to require ... review at appropriate intervals ... and termination ... if the facts no longer support nondisclosure," and the anticipated but unknown date when the Attorney General will have actually promulgated such procedures. In the absence of those governing procedures, the Court will require the Government to review every 180 days the rationale for the nondisclosure requirement's continuation. Once the Attorney General's procedures are in place, then the nondisclosure requirement will be subject to review thereunder, and this Court's mandate of review every 180 days will no longer be in force.

So, the gag order will only be looked at every six months until the Attorney General takes over, at which point it will be reviewed at "appropriate intervals." Putting this into the hands of the Attorney General seems less likely to result in a ruling in favor of disclosure than leaving it up to a more impartial court. Even with this "fix" in place, there's very little reason to expect the gag order to be lifted any time soon.

As for the unnamed respondent's First Amendment arguments, the court says these alleged violations are outweighed by the government's need for secrecy in national security investigations. Furthermore, it's suggested the respondent should be happy the government has grudgingly allowed it to report nonspecific information on requests for subscriber data.

The methods or reporting established in §1874 -- with reporting allowed in "bands" of numbers and with restriction on the period of time for which a report may be issued -- are a reasonable accommodation of an ECSP's desire for transparency and the Government's compelling interest in national security.

There's no telling who the service provider is that's challenging the gag order. One of the few details that can be sussed out from the documents no longer under seal is that the NSL likely arrived in the first three months of this year. At this point, the service provider won't be able to have the decision reviewed until summer of next year and after that, it will be in the Attorney General's hands. The encouraging sign is that the Attorney General's office has already agreed to unseal certain documents in this case, rather than keep the entire discussion hidden from the general public. Granted, the documents do little more than confirm the government's belief that the gag order should remain in place -- without providing anything more than vague national security concerns to back up that assertion.

Filed Under: attorney general, doj, fbi, first amendment, free speech, gag order, national security, national security letter, nsl

Recipient Of FBI National Security Letter Can Finally Reveal Details, 11 Years Later

from the and-it's-just-as-messed-up-as-expected dept

Back in October, we followed up on a much older story concerning Nicholas Merrill, the owner of Calyx Internet Access, who back in 2004 had received one of the FBI's infamous National Security Letters (NSLs) complete with a total gag order on it. NSLs have long been widely abused by the FBI to (unconstitutionally) get around the 4th Amendment, demanding all sorts of information from private parties and then putting a perpetual gag order on the request, which also would seem to violate the 1st Amendment. Merrill fought back against the NSL -- at first anonymously because he wasn't even allowed to admit to anyone that he'd received one. In 2010, Merrill was finally granted the right to admit that he had received an NSL and that he was fighting it. But he still couldn't reveal much more than that.

The October ruling said that the entire gag order needed to be lifted, and that Merrill should be able to finally reveal the actual NSL -- and that has now happened. You can see the ridiculously broad list of information that was demanded from Merrill.

Merrill is now able to reveal that the FBI believes it can force online companies to turn over the following information simply by sending an NSL demanding it: an individual’s complete web browsing history; the IP addresses of everyone a person has corresponded with; and records of all online purchases. The FBI also claims authority to obtain cell-site location information with an NSL, which effectively turns a cell phone into a location tracking device. In court filings, the FBI said that at some point it stopped gathering location data as a matter of policy, but that it could secretly choose to resume the practice under existing authority.

“For more than a decade, the FBI has been demanding extremely sensitive personal information about private citizens just by issuing letters to online companies like mine,” said Mr. Merrill.   “The FBI has interpreted its NSL authority to encompass the websites we read, the web searches we conduct, the people we contact, and the places we go. This kind of data reveals the most intimate details of our lives, including our political activities, religious affiliations, private relationships, and even our private thoughts and beliefs,” he explained.

As Marcy Wheeler notes, the depth of information that the NSL was getting willy nilly with no oversight at all through NSLs is rather astounding.

This is what the government means when it does “connection” chaining: gluing together every fragment of your online life together to see it all.

The ACLU has also helpfully created a graphic showing the gradual revealing of this NSL, with each part of the legal fight unmasking a bit more over the course of this decade-plus battle: Along with the NSL details, Merrill was also able to release an unredacted version of October's ruling -- and we'll deal with that in a separate post, so stay tuned.

Filed Under: censorship, doj, fbi, first amendment, fourth amendment, gag order, national security letters, nicholas merrill, nsl
Companies: calyx

Fertility Company Bullies Unhappy Customer With Bogus Legal Threats And Nonexistent Lawyers

from the reputation-still-feeling-protected? dept

It looks like another company wants to ruin its reputation by "protecting" its reputation. Paul Alan Levy of Public Citizen is helping an unhappy customer fight back against the litigious threats of Fertility Bridges, which allegedly promised her one thing, but delivered another.

After searching the Fertility Bridges web site, identifying what appeared to be an ideal donor, and receiving confirmation from Fertility Bridges that the donor had confirmed her willingness to proceed, Oliver wrote a large check to Fertility Bridges. However, as soon as the company had received Oliver’s payment, Fertility Bridges went dark concerning the donor's availability instead of moving forward with an egg donation. Then, just after Oliver’s check had cleared, Fertility Bridges admitted that the donor was unwilling to go forward with the procedure, without giving any reason, and suggested that she choose another of the company's available donors. But when Oliver asked for a refund of the entire fee that she had paid Fertility Bridges, the company temporized for a while, and then refused. In the circumstances, Oliver suspected that she had been the victim of a bait and switch.

Oliver took her complaint to the Better Business Bureau. Shortly thereafter, she received a threatening email (the first of several) from Fertility Bridges stating that the agreement it had failed to uphold on its end had been violated by Oliver's complaint.

"You directly violated our legal agreement by attempting to post an online review. As such, we are setting the plans in motion for a multi-million dollar defamation case against you. . . . unless you withdraw your unwarranted BBB complaint or any illegal online reviews, we will proceed at lightening [sic] speed in a defamation case against you to minimize as much damage as possible. We have your signed legal agreement clearly stating you will NOT post online reviews."

The provisions the threatening email alluded to are these:

"M. ONLINE REVIEWS
"Because of the extremely private and emotionally delicate nature of the egg donation business Recipients agree NOT to post any online reviews anywhere on the Internet without first presenting it to Fertility Bridges for legal review. . . .

"N. APPLICATION OF LAW
"Recipients agree that this Agreement will be governed and interpreted by California jurisdiction. . . .

"Q. SETTLEMENT OF DISPUTES
"Recipients agree to mediation to resolve any disputes. If mediation does not resolve the issues then Recipients agree to binding arbitration to settle disputes [and] in California Jurisdiction..."

Fertility Bridges' own agreement immediately undercuts its threats of a (baseless) "multi-million dollar defamation case," as it binds both parties to mediation and arbitration. The parts about California's jurisdiction undercut the rest.

[G]iven the (oddly-worded) provision subjecting the agreement to California law, even if the clause were construed as forbidding disparaging reviews without prior approval, the clause would be forbidden by the new California law that prevents companies from imposing non-disparagement clauses in consumer agreements.

The combination of legal errors might cause one to wonder what sort of lawyer helped compose the threatening emails sent to Oliver. Levy tried to speak to Fertility Bridges' legal representation on behalf of Oliver. His attempt was met by Fertility Bridges tugging at its suspenders and claiming it was just a humble, small-time fertility consulting company that didn't much care for big city lawyerin' -- despite its succession of escalating emails suggesting Oliver would be sued into the ground for attempting to badmouth the company.

In fact, for all of its assertions that any review or complaint about its services would first need to be viewed by Fertility Bridges' legal team before publication, the company appears to have no legal representation retained to handle this task. In an email conversation with Levy, the company (comically) makes it clear it would need to retain a specific type of lawyer to handle Oliver's challenge of its non-disparagement clause. [All spelling and grammatical errors in the following are quoted directly. Emphasis added.]

Thanks for your prompt response. If the Olivers feel the need to post something on the Internet, we can't stop them. As you have read we do not have a gag clause, we ask that they present to our attorney or mediator to verify the facts are truthful and void of medical privacy data so that they do not subject themselves to libel.

Do have them post away and we will hire a separate attorney who focuses specifically on false claims (not truthful ones - since those are ok to post and have always been.) As you know different attorneys specialize in different types of the law so we will hire one who specializes in this. We are not lawyers and don't intent to be. Our goal is to create a service that helps and leave the legal matters up to the experts.

We have an attorney who is responding to their NJ claim but we don't feel she has the expertise to advise on libel claim since it will be important to learn the details of libel once we head into mediation with the client.

Will you serve as their lawyer defending them against their lies they are intending to write online? Are you libel attorney?

[...]

If you feel there is anything else we need to know about this case, please pass all and we will share with our with a specialized libel attorney when we hire one. 9 days is too short a time to find and hire This special kind of attorney so we will do this after posts are made and take the right amount of time to find the right one. Once they are made, we will know how extreme the situation is, exactly the nature of their post and we will have a chance to state our response refuting their claims in the public forum they are posting on and what potential damages that might occur as a result. I am sure there is some case law that already defines what the legal remedies are for posting libelous remarks online and we will aim to find an attorney who knows.

I assume once an actual lawyer is retained by Fertility Bridges, all communication along these lines will cease. The non-disparagement clause Fertility Bridges claims isn't a non-disparagement clause is actually unenforceable in California -- the state it's chosen to handle its litigation in. And if Oliver's review actually contains defamatory statements, there are legal remedies the company can pursue that have nothing to do with its shady "run it by our [nonexistent] lawyers first" clause. As Levy points out, given the legal remedies readily available, the only reason to insert language like this into service agreements is to discourage unhappy customers from making their complaints public.

Filed Under: bullying, fertility, gag order, legal threats, non-disparagement clause
Companies: fertility bridges

Federal Court Finally Says That Gag Order On 11-Year-Old National Security Letter Should Be Lifted Already

from the big-win dept

Five years ago, we wrote about a pretty big victory against National Security Letters (NSLs), which the government has long used to get around the 4th Amendment, demanding information from companies, complete with a perpetual gag order. In 2007, an anonymous ISP owner fought back, speaking out against the whole gag order thing, but not even being able to say what ISP he was associated with, because of that gag order. In 2010, Nicholas Merrill, of Calyx Internet Access, was finally able to admit that he was the one fighting the gag order -- after reaching an agreement with the government (and that was after a number of trips back and forth between the district and appeals courts). Now, five years later, a federal court has finally ruled that the gag order, which was issued back in 2004, should be lifted, because the government has no "good reason" for keeping it in place and keeping the gag order would violate the First Amendment. You can read the redacted order here, which is an interesting read. Basically, a permanent gag order doesn't really fit with that whole First Amendment thing we have here in the US -- but the court prefers to focus on whether or not there's any reason to keep the order in place now.

There's a lot of procedural history here (which explains why it took this long for a ruling, but...). It turns out that in 2014, Merrill and the DOJ reached a further "agreement" that allowed Merrill to talk more about the NSL, but said he could still not discuss an attachment that explained what kinds of records the government sought. This latest part of the lawsuit is about that last remaining part of the gag order. And the court is not impressed by it at all.

Here, the Government has not demonstrated a good reason to expect that public disclosure of the parts of the Attachment that remain confidential would risk one of these enumerated harms; nor has the Government provided the Court with some basis to assure itself that the link between disclosure and risk of harm is substantial. The Government's justifications might constitute "good" reasons if the information contained in the Attachment that is still redacted were not, at least in substance even if not in the precise form, already disclosed by government divisions and agencies, and thus known to the public. Here, publicly-available government documents provide substantially similar information as that set forth in the Attachment. For that reason, the Court is not persuaded that it matters that these other documents were not disclosed by the FBI itself rather than by other government agencies, and that they would hold significant weight for a potential target of a national security investigation in ascertaining whether the FBI would gather such information through an NSL. The documents referred to were prepared and published by various government divisions discussing the FBI' s authority to issue NSLs, the types of materials the FBI seeks, and how to draft NSL requests.
<
Indeed, one of these documents is a publicly-available Department of Justice Office of Legal Education manual that provides a sample attachment that encapsulates much of the redacted-information in the Attachment here in dispute....

[....]

The Government contends that if the parts of the Attachment that remain secret are disclosed, potential targets could change their behavior to evade law enforcement. But those targets can already learn, based on publicly available infonnation, that the FBI could obtain such information through NSLs.

In the end, the court says the gag order makes no sense.

... the Court finds that the Government has not demonstrated a good reason to believe that potential targets of national security investigations will change their behavior to evade detection, or that disclosure of the Attachment in its entirety would create a substantial risk of one of the statutorily enumerated harms.

And then there's the whole First Amendment thing. The court notes that if it accepted the DOJ's arguments, the First Amendment would have an issue with that:

If the Court were to find instead that the Government has met its burden of showing a good reason for nondisclosure here, could Merrill ever overcome such a showing? Under the Government's reasoning, the Court sees only two such hypothetical circumstances in which Merrill could prevail: a world in which no threat of terrorism exists, or a world in which the FBI, acting on its own accord and its own time, decides to disclose the contents of the Attachment. Such a result implicates serious issues, both with respect to the First Amendment and accountability of the government to the people. As Judge Cardamone warned in his concurrence in Doe v. Gonzales, "a ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens," and such unending secrecy could "serve as a cover for possible official misconduct and/or incompetence."

But the court, unfortunately, refuses to take things one step further, in saying that the gag order itself violated his First Amendment rights. Instead, it focuses just one whether or not the government still has a "good reason" to keep the gag order in place. Saying that it no longer does, it says it has no need to address the more constitutional question of whether or not the gag order itself violated Merrill's rights.

Also, somewhat amusingly, because the court is ordering the DOJ to lift the gag order, but because it's technically still in place, you get some odd redactions in the ruling, where the government is pointing out why certain things should not be redacted... but they still are, likely because the gag order is still in place, even as the court has ordered it lifted. There are a lot of these kinds of examples, but here's a shorter one: And another longer one:
Oh, and then there's this glorious footnote: The court is not persuaded, but everything is blacked out anyway. Because that's how these things work. In fact, Merrill remains gagged for 90 days, and only after that can he actually reveal what the FBI asked for 11 years ago.

Filed Under: doj, fbi, first amendment, free speech, gag order, national security letters, nicholas merrill, nsl, nsls, redactions
Companies: calyx

DOJ Tells Me It Can't Find Any Internal Guidelines For When It Seeks Gag Orders For Subpoenas

from the difficult-to-believe dept

Earlier, I wrote about how I sent two FOIA requests over the bogus gag order that Assistant US Attorney Niketh Velamoor obtained to silence Reason.com about the bogus subpoena he sent to identify some rowdy commenters. The two FOIA requests were for: (1) the original application for the gag order and (2) any DOJ guidelines on when to apply for a gag order.

As we noted, I just received a response to the first FOIA request, in that I was told the DOJ could find no responsive documents. That seemed quite bizarre, given that just a few weeks earlier, the DOJ itself had released exactly that document and it appears to match up exactly with what I asked for in my FOIA request.

The DOJ also responded to my second request and -- guess what? -- it's the same damn thing. Yup, the DOJ says it has no responsive documents for any guidelines on when to seek a gag order on a subpoena. Now, this seems to suggest two possibilities -- neither of them particularly good. (1) As with my first FOIA request, the folks at the DOJ FOIA office are simply bad at their jobs (whether on purpose or not) and are simply not finding the document that does exist or (2) the DOJ really doesn't have any guidelines for when it should seek a gag order. Neither of these situations are reasonable.

If the first is the case, and we have evidence of that based on the other FOIA response, then the DOJ needs to overhaul its FOIA efforts to actually align with the law itself, which requires them to provide responsive documents. The fact that it's bad at its job (again, on purpose or not) runs counter to the letter and spirit of the law and should be fixed.

If the latter is the case, then that's also a serious problem. A gag order in a legal proceeding should only be used in very rare circumstances, and given the fact that this particular gag order was granted based on almost nothing, rubber-stamped by a judge who didn't seem to care about the details, the DOJ really ought to have some fairly detailed guidelines that need to be followed before some kid working in the US Attorneys' office can try to hide what he's doing out of embarrassment (as appeared to be the case here). I will be asking the DOJ to explain this lack of guidelines and will continue to report on what it has to say.

Filed Under: doj, foia, gag order, guidelines
Companies: reason

DOJ Tells Me It Can't Find A Copy Of The Reason.com Gag Order Request It Already Released

from the good-work,-team-foia dept

As you may remember, earlier this summer, we (and many others) wrote about the ridiculous situation whereby Assistant US Attorney Niketh Velamoor not only sought a bogus subpoena for information on some hyperbolic commenters on the site Reason.com, but also obtained a gag order. At the time, I noted that I had sent in FOIA requests to the DOJ for Velamoor's initial application for the gag order as well as for the DOJ's guidelines on requesting a gag order. It turned out that Paul Levy, from Public Citizen, did the same -- though he (wisely, apparently) made his request directly to Velamoor, rather than to the DOJ's FOIA office. From that, Levy received a copy of the gag order application, which we wrote about last month.

So, imagine my surprise to have the DOJ finally respond to my FOIA request a month later, only to tell me that it could find no responsive documents to my request. There is no real detail provided. Just this: Of course, FOIA offices are notorious for claiming no responsive docs if you're not 100% accurate in your request, but I think my request was pretty clear. Here was my request:

The June 4th application for a non-disclosure order by the US Attorneys Office in the Southern District of NY concerning the subpoena issued to Reason Magazine (or Reason.com). The non-disclosure order was granted on June 4th by Judge Frank Maass and vacated on June 19th. I am seeking the original application.

And, as we learned from the document that was released to Levy, it was an "Application for § 2705(b) Grand Jury Non-Disclosure Order to Service Provider." And it was, indeed, filed and approved on June 4th. And it was clearly "In Re Grand Jury Subpoena to Reason.com." The idea that the DOJ's FOIA staff "could find no responsive documents" suggests a serious problem with how the FOIA office works -- or how the US Attorney's Office in NY files their documents. Clearly the document exists. After all it was released to Levy. And the description I gave of the document is pretty damn close to the actual document. I am, of course, free to "appeal" the "no responsive documents" claim, but it's not clear what the point is here, since the document was already released (unbeknownst to the DOJ's crack FOIA team).

At the very least, this should call into question how the DOJ handles its FOIA requests.

Filed Under: doj, foia, gag order, niketh velamoor, no responsive documents
Companies: reason

DOJ's Gag Order Request On Reason Was As Ridiculous As You'd Expect

from the rubber-stamps-are-back-in-fashion dept

A few weeks back we discussed a few times the ridiculousness of Assistant US Attorny Niketh Velamoor seeking, and then getting, a gag order preventing Reason.com's staff from revealing the existence of a subpoena for identifying information on a few of its commenters who had made hyperbolic internet comments about a US judge. We noted that the gag order itself did not give a reason, other than repeating the possibility of any or all of the officially allowed reasons for a gag order, but never specifying which ones applied. We also noted that Velamoor's initial application for the gag order had not been unsealed in the case -- and we filed a FOIA request with the Justice Department for it (along with the DOJ's guidelines on seeking a gag order). We still have not received a response on either FOIA request.

However, Public Citizen's Paul Levy went with the more direct route of reaching out to Velamoor directly and requesting the application for the gag order -- and after some initial pushback and evasions Velamoor eventually asked the court to unseal the document (as Levy notes, Velamoor perhaps used the time in between to learn what the law says and to research Public Citizen's long history of suing to get documents unsealed). And thus, Levy has now published the application and written up an analysis. You can see the application here, where it shows that, as in the rubber stamp approval of the gag order, Velamoor simply listed out the categories of reasons why a gag order can be issued and then basically said that the commenters might "flee" or "tamper" with certain data.

When the Government seeks such information via grand jury subpoena, 18 U.S.C. § 2705(b) authorizes the Court to issue

an order commanding a provider of electronic communications service or remote computing service to whom a warrant, subpoena, or court order is directed, for such period as the court deems appropriate, not to notify any other person of the existence of the warrant, subpoena, or court order. The court shall enter such an order if it determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will result in--

(1) endangering the life or physical safety of an individual;
(2) flight from prosecution;
(3) destruction of or tampering with evidence;
(4) intimidation of potential witnesses; or
(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.

In this case, such an order would be appropriate because the attached subpoena relates to an ongoing criminal investigation that is neither public nor otherwise known to all targets of the investigation, the account holder is suspected of being involved in or associated with persons involved in the conduct under investigation, and disclosure of the subpoena to the account owner or to any other person may alert subjects or targets of the ongoing investigation. Accordingly, there is reason to believe that notification of the existence of the attached subpoena will seriously jeopardize the investigation, including by giving targets an opportunity to flee or avoid prosecution, or tamper with evidence, including electronically stored information that is easily tampered with. Given the amount of time a criminal investigation commonly lasts and the particular circumstances presented here, the Government respectfully submits that 180 days is an appropriate delay of notice period for the Court to order.

Neither of these arguments make much sense, nor should they result in a gag order. Again, the comments in question were all pretty clearly hyperbolic internet statements and not real threats in any way. The idea that someone would "flee" over that is pretty much laughable. Second, the data was on Reason's servers, which the commenters would not have access to in order to "tamper" with such evidence. One could argue that it's possible they could tamper with local files, browsing history and the like, but it's difficult to see what good that would do and would just open the individuals up to further charges. Plenty of legal cases involve issuing subpoenas or notices not to tamper with evidence. There is no reason that couldn't have been done in this case without a First Amendment-stifling gag order.

As Levy notes, if this is the appropriate level of disclosure required to get a gag order in New York, then basically any subpoena would qualify for a gag order, which is tremendously problematic. And, indeed, historically such a broad stifling of speech is considered unconstitutional.

At this level of generality, such a claim could be made about just about any subpoena, but the courts have generally been skeptical of claims by federal prosecutors that they can flatly forbid witnesses before the grand jury from disclosing what they have been asked.  The leading case, from the First Circuit, summarized the case law as being divided between courts that read Federal Rule of Criminal Procedure 6(e)(2) as flatly forbidding the imposition of secrecy requirements on grand jury witnesses, and those that allow restrictions only on a demonstration of “compelling necessity ... shown with particularity.”  It is hard to see Velamoor’s affidavit as meeting that standard.  The basis for the gag order is a statute specific to subpoenas to ISP's, but Ken White has collected a number of cases  in which trial judges have demanded specific showings before issuing gag orders to ISP’s in particular.    Knowing as we do that this trial judge asked no questions to pierce the generalities in the application, as a practical matter it seems to me that the judge had no evidentiary basis for enjoining journalists from writing about a government demand to disclose the identity of anonymous speakers who, themselves, were not accused of wrongdoing.

Levy also does discuss the possibility that there is a legitimate investigation going on behind all of this, which is certainly possible, if extremely unlikely. But, at the very least, it seems nearly everyone agrees that the gag order itself was quite ridiculous and unconstitutional. And both AUSA Niketh Velamoor and the judge who signed off on it, Frank Maas, should be called to account for why they requested and approved it, respectively. It's not hard to speculate on the reasons: it seems likely that Velamoor requested it after realizing that Reason was going to tell people about it and that the story would likely become public (and, then, perhaps realizing how it looks to subpoena the identity of hyperbolic internet commenters who weren't making any realistic threats). Similarly, it seems likely that judge Maas didn't look too deeply into the situation and more or less rubberstamped the gag order because it came from an AUSA who insisted it was important for his investigation. Perhaps there's more to it, but it would seem that both Velamoor and Maas should explain what that "more" would be, if they don't want the more obvious speculations to be accepted as fact.

Filed Under: doj, first amendment, free speech, gag order, internet comments, niketh velamoor

The Ridiculous Redactions The DOJ Required To Try To Hide The Details Of Its Google Gag Order

from the come-on dept

We already wrote a long and detailed post about the DOJ gagging Google for over four years, preventing it from telling Jacob Appelbaum about the government's §2703(d) Order for his Gmail info (a §2703(d) order is like a subpoena, but with less privacy protections -- which is why the government is a fan). The gag was finally allowed to be lifted on April 1st of this year, despite most of the key moments happening in the early months of 2011. However, as part of the agreement to finally unseal this document, the DOJ apparently required parts of it to be redacted. Perhaps that's understandable, but some of the redactions are so ridiculous as to be laughable -- starting mainly with trying to make sure that every judge and every DOJ employee in the documents is hidden away. Throughout the document, you see examples like this: Of course, amusingly, sometimes they redact the phone numbers, and sometimes they don't. So I'm sure that's useful.

And, really, what sort of court system do we have when the judges get to have their names redacted: And, of course, there are plenty of pages like the following: But the truly hilarious redactions come elsewhere. For example, despite being mentioned throughout the document without redactions, the name "Wikileaks" is redacted when mentioned in the headlines of stories and URLs. I mean... really. The redactions of those URLs? What's that about? Does anyone honestly think that people can't find those articles? For what it's worth:

• WikiLeaks demands Google and Facebook unseal US subpoenas
• Twitter, Wikileaks and the Broken Market for Consumer Privacy

Yeah, that really stopped me, DOJ!

And this even extends to the exhibits of publicly available web pages, which the DOJ still needed redacted. This has to be my favorite: Now watch as I blow your mind and link to: DOJ subpoenas Twitter records of several WikiLeaks volunteers and share the following screenshot I just took: Even more amazingly, in the released documents, they redacted things in the article: Now watch as I wave my magic wand... and unredacticus! And then there's the fact that Appelbaum's own name is redacted repeatedly for no damn reason, since everyone has already admitted that it's him. This includes on public tweets, like this one: It's like they're not even trying: And this: And there's an exhibit with the first of those two "tweets" redacted again: Yeah, that's Wikileaks' Twitter account, which is kinda obvious from the background and all. But here you go: The second one -- despite the claim in the document -- does not actually appear to be a tweet at all. However, it was stated by another of the individuals who the DOJ targeted with the Twitter Order, Rop Gonggrijp -- not on his Twitter account, but rather in a blog post about being targeted.

They even want Wikipedia redacted. I wish I were joking. And that one even tries -- but sometimes fails to redact each mention of Wikileaks even in the references and links at the end. I mean, really: All of this should raise plenty of questions. Beyond just the ridiculousness of the original gag order, it now appears that the DOJ is abusing the redaction process for no good reason at all. In some cases, it's clearly to avoid having any of the DOJ team or the judges criticized publicly -- because what kind of democracy or due process is there if we have transparency. In other cases, it just seems... to be for no reason whatsoever except "because we can." That's not how the judicial system is supposed to work. We have public courts for a reason.

Filed Under: doj, gag order, jacob appelbaum, redactions, wikileaks
Companies: google, wikileaks

Google Was Gagged For Four Years From Talking About Fighting The Wikileaks Investigation

from the harassment-all-the-way dept

Reporter, activity and security guy Jacob Appelbaum has been harassed by the government for years for helping with Wikileaks. We've written before about how he gets detained at the border and is ordered to hand over all of his electronic equipment. A few years ago, we wrote about the ridiculous legal fight in which the Justice Department demanded that Twitter hand over Appelbaum's messages without telling anyone, as part of the still ridiculous grand jury investigation into Wikileaks (which still isn't over!).

If you recall, as part of that discussion about the legal fight with Twitter -- in which we gave kudos to Twitter for standing up for its users' privacy -- it also came out that similar demands for information were also sent to Google and Sonic.net in trying to access Appelbaum's details. Sonic.net quickly said that it fought the request -- but Google gave no comment. We found this to be disappointing at the time.

However, late last week, it was finally revealed -- four years later -- that Google not only fought the order, but was gagged from talking about it until just recently. Reading through the full set of released documents (300 pages) is quite incredible -- as are Appelbaum's own comments as he reads through the document himself.

If you don't recall the big legal fight with Twitter, the DOJ refused to get a warrant, but instead got what's known as a 2703(d) order, which has a much lower privacy protection standard. A warrant, as you know, requires probable cause. A 2703(d) order just requires "reasonable grounds to believe that the contents [of the email] are relevant and material to an ongoing criminal investigation."

This whole thing started in late 2010 when the grand jury investigation sent those 2703(d) orders out -- each accompanied by a gag order. Twitter fought the gag order and was able to get a judge to unseal it in early January 2011 for the sake of alerting the users in question, to see if they would protest (which they did, though unsuccessfully). Twitter alerted a few users, including Appelbaum, that the feds had requested information. While many had assumed the feds had used a warrant or a traditional subpoena, it was quickly revealed that it was the 2703(d) process, raising many more concerns. The fact that there were also a number of mistakes in the order raised further concerns. The revelation of this order got a lot of press attention, which the DOJ hated.

In fact, that's what much of the (now revealed) argument between Google and the DOJ is discussing. Google points out that the identical order in the identical investigation was made public concerning Twitter's involvement, and thus, there is no reason not to make it public for Google too. The DOJ responds about just how incredibly harmful the press attention of the Twitter order is... though they fail to explain a single way it is harmful, other than that some online internet commenters were kinda mean to them. First, the DOJ insisted that it was important that Google be gagged, and then said that Twitter's ungagging "seriously jeopardized the investigation."

The Order should remain sealed at this time. The Order satisfies all statutory and constitutional requirements, and the [REDACTED] subscriber would not have a valid basis for challenging it even if Google did provide him with notice. Furthermore, unsealing and permitting disclosure at this time is not in the best interest of the investigation. Unsealing and permitting disclosure of the Twitter Order has already seriously jeopardized the investigation and the government believes that further disclosures at this time will exacerbate this problem.

Of course, the DOJ never actually goes into any detail about how revealing that it was digging for information jeopardized the investigation at all. It just makes these baseless claims. Later, it further argues that unsealing the Twitter order (which it had agreed to allow) was a mistake in hindsight:

Indeed, in light of the events that followed the unsealing and disclosure of the Twitter Order, had the government known then what it does now, it would not have voluntarily filed the motion to authorize it.

Why is that? Well, the only argument the government seems to make is that once the Twitter Order was public, people got mad and said not nice things about the DOJ. First, it points to this Glenn Greenwald article from 2011, in which he revealed more details of the original Twitter Order, including the name of the magistrate judge who signed off on it. The DOJ presents this as if it's harassment, though read the article and see if that's reasonable. And then it further claims that the US Attorneys were "harassed on the internet." But the only evidence it provides is this: So some kid gets angry and fires off an angry email to the DOJ with the Anonymous tagline at the end, and the DOJ gets all weak-kneed? Really?

Even more bizarre, the DOJ includes a long paragraph talking about how all of the praise that Twitter got after the Twitter Order was revealed explains why the Google Order shouldn't be revealed. That is, the DOJ is explicitly saying "man, it would suck if actually protecting the privacy of users became contagious":
That does not seem like a legitimate reason for a gag order. It sounds like the DOJ is unwilling to support due process and is afraid to actually have to defend its actions.

In response to this, Google quite reasonably points out that the government's argument cancels out its own argument. At one point, for example, the DOJ pointed to one of the people it was seeking information on Tweeting to followers not to send direct messages, and another saying that it's likely that Google and Facebook received similar orders. As Google points out, given that, the targets already suspect what is going on and thus it couldn't possibly make sense to maintain the gag order. As for the "parade of horribles" above, Google rightly points out that none of them show how revealing the Google Order will exacerbate any of the "problems" it outlined.

The fight was put on hold while the individuals in question (including Appelbaum) fought the Twitter Order. And, when that failed, the case picked up again, with the DOJ saying "look, that failed, so this case is over." Google responded, quite reasonably, that whether or not the individuals succeeded in stopping the information disclosure is a wholly separate issue from whether or not the gag order makes sense. Unfortunately, in the end, the court rejected all of Google's arguments. The court relies heavily on the fact that Appelbaum (though, bizarrely, his name is redacted here) tweeted the following: "Do not send me Direct Messages - My twitter account contents have apparently been invited to the (presumably-Grand Jury) in Alexandria." To the court, this is evidence that any disclosure will lead to a change in behavior.

Furthermore, the court ridiculously buys into the claims by the DOJ that the "public campaign" supporting Twitter for standing up for the rights of its users is a form of witness intimidation. Really: That concluding line is really incredible:

If the Google Order were unsealed, future service providers may do precisely what Google has done in this instance, namely resist compliance with a lawful §2703(d) order by bringing baseless legal challenges that have the effect of impeding the government's progress in the Wikileaks investigation.

In other words, merely challenging the legitimacy of a gag order with an associated court order to hand over someone's info -- in other words protecting a user's privacy is somehow seen as evidence of impeding an investigation. This is ridiculous.

Finally, as Lauren Weinstein points out in his own analysis of these newly released documents, this does show just how strongly Google fought the government to block the government from getting access to user info. There is this false belief out there that Google, in particular, has given the government free access to its servers (in part because of an incorrect interpretation of a Snowden document early on). Yet, this highlights how Google actually fought quite hard to protect its users' info (and this all happened more than two years before the Snowden leaks). Indeed, in my original post, about the revelation that Google had received a similar order, we were disappointed that unlike Twitter and Sonic, Google refused to comment. We had no way of knowing that the company had been gagged.

Even Appelbaum -- not exactly one to cheer on Google in most settings -- now admits that he's impressed by how strongly Google fought. A few of his tweets explaining this:



Separately, he notes that while we know about Twitter, Sonic and Google... we don't know about Facebook or Yahoo, leading him to wonder what happened there:

No matter what, this seems like yet another example of the DOJ being out of control and trying to cover up its own actions to keep them out of the public debate, rather than for any legitimate purpose.

Filed Under: doj, free speech, gag order, jacob appelbaum
Companies: google, twitter, wikileaks

The Outrageousness Of The Reason Gag Order

from the forget-the-subpoena dept

As you may recall, last week it was revealed that Assistant US Attorney Niketh Velamoor had, in fact, obtained a gag order on Reason, blocking the publication from discussing the bogus subpoena it had issued concerning certain juvenile comments made by commenters on the site. The subpoena was ridiculous -- but the gag order was preposterous. And it deserves a lot more scrutiny.

Over the past few days, a bunch of experts have started to weigh in on just how dangerous and scary the gag order is -- way beyond the original subpoena. As we noted in the original post about the gag order, it's quite clear that Velamoor had no legitimate reason for requesting a gag order, and that's supported by the fact that the eventual gag order -- approved by federal magistrate judge Frank Maas -- doesn't actually give a reason, but just lists out all of the possible reasons a gag order is allowed:

The Court hereby determines that there is reason to believe that notification of the existence of the attached subpoena will result in one or more of the following consequences, namely, endangering the life or physical safety of an individual; flight from prosecution; destruction of or tampering with evidence; intimidation of potential witnesses; or otherwise seriously jeopardizing an investigation or unduly delaying a trial.

Basically none of those make sense here. The actual application for the gag order filed by Velamoor has not been released -- though I've put in a FOIA request for it -- but it seems quite likely that no actual issue was raised -- but Maas gave the rubber stamp anyway. In response to all of this, there has been some really great analysis worth highlighting.

First up, Popehat teed off on this by highlighting how it appears that Velamoor was on something of a power trip just because he could get away with it:

Velamoor's conduct was threatening throughout — not threatening like a stalker or a foe, but threatening like a tired parent who wants obedience and gets angry with anything but quick compliance. The initial form letter accompanying the subpoena noted that while disclosing it was not forbidden, "disclosure of the existence of this investigation might interfere with and impede the investigation." What does it imply when a federal prosecutor tells you that?

Most people interpret it to mean that, if the prosecutor decides you've disclosed it in some undefined way that thwarts his or her investigation, you may be the prosecutor's next target. That's certainly what Velamoor implied when he told me on the phone that he was going to "look into" how I got the subpoena, and what he strongly suggested to Reason's lawyer when he told her that Reason was "coming close" to interfering with a grand jury investigation by doing exactly what they were entitled to do and exactly what the letter said they could do. Later he told Reason that he had "preliminary information" that they had violated the order and that he was "looking into it," yet another threat. It was a threat premised on a lie, since Reason only sent the subpoena to the targeted commenters before the gag order was issued, and because Reason didn't send it to me.

It's easy to dismiss this kind of government intimidation when you're not its target. It's quite another thing to live it.

There's a lot more in Popehat's piece, which is worth reading (including one more point we'll make below). Next up we have Scott Greenfield who didn't mince words about Velamoor's actions pointing out that almost every move he made was clearly designed to intimidate. This starts with Velamoor telling Ken White (during his call to Velamoor) that he "believed" there was a gag order:

Nobody “believes” there is a gag order. There either is or isn’t, and if there was, there isn’t a chance in hell that Niketh wasn’t absolutely certain about it. There was no “he believed” involved. What this reflects is that he wanted to impart the scare of a gag order without revealing that there was a gag order. Because it didn’t apply to Popehat, and couldn’t prevent Ken from publishing the subpoena. Likely, Niketh didn’t want Ken to add a prior restraint on this silliness on top of the absurdity of the subpoena itself.

Then there's the threat that Velamoor made to Reason itself upon finding out that Ken White had the subpoena, telling Reason that it was "coming close" to interfering with the investigation. Again, Greenfield points out how ridiculous that is.

See that “coming close” thing? That’s a test of fortitude, carefully taught in baby prosecutor school, that by hinting that someone may be, kinda, sorta, on the edge of committing a federal offense, it will scare the crap out of some cowardly lawyer and their fearful client, so as to obtain submission and obedience.

Do you want to court disaster? Do you want to become the target of a federal investigation yourself? Do you really want to take on the vast power of the United States of America by challenging the Niketh?

Instapundit's Glenn Reynolds also stepped in to call this what it was: an attempt to chill free speech:

Bharara's office isn't talking, but I suspect that the purpose of this exercise is to chill speech: To send a signal that whether or not the First Amendment protects your right to talk smack about a federal judge, you'd be wise not to do so if you don't want to attract the attention of the feds, who might choose to share your information with employers or the news media. Consider it a sort of prosecutorial brush-back pitch, if you like.

Of course, the First Amendment term for "brush-back pitch" is "chilling effect." The goal, presumably, is to discourage speech protected under the First Amendment, but disliked by authorities. That's an odd thing from a prosecutor who is sworn to uphold the Constitution — but, these days, perhaps not as odd as all that. Add this case to the mounting pile of evidence that out-of-control prosecutors need to be reined in. Starting, perhaps, with the Southern District of New York.

And, finally, we've got Paul Levy who compares the intimidation campaign to a similar situation involving Room Eight, a NY politics blog:

As in the Room Eight case, the United States Attorney’s Office for the Southern District of New York brought both the office’s prosecutorial power and the normal complaisance of federal judges in its invocation to bear to try to block the disclosure of the existence of the subpoena. The AUSA moved not only to block general publication but more specifically by giving notice to the anonymous commenters so that they could, if they wished, retain counsel to seek to have the subpoena quashed on First Amendment grounds.

Levy then points out that it would be useful to know what kind of guidelines the DOJ has for requesting such gag orders (I've FOIA'd that as well...).

Should we be content with the precedent set for free speech because passionate journalism succeeded in getting this gag order set aside? Or should we try to learn from this experience through a thorough investigation of the precise reasons why the US Attorney’s office believed that it was necessary to curb public disclosure of the grand jury subpoena. Does that office, or does the Justice Department generally, have any guidelines governing applications for gag orders of this sort? Are their any guidelines about the circumstances under which it is appropriate for AUSA’s to throw their weight around by threatening to investigate subpoena recipients for interfering with a criminal investigation (thus securing an informal gag order through intimidation)? Should there be such guidelines? If there are guidelines, did the AUSA in this case follow them (and does that mean that the guidelines need to be tightened)? This might well be an apt subject for investigation by a congressional government oversight committee or judiciary committee.

There was one separate issue that both Levy and Ken White at Popehat called out -- which is that Velamoor not only played all these games, but he also reached out directly to Reason after Reason had its attorney contact him. This is... generally a big no no in legal settings. Despite already having spoken to Reason's lawyer, Velamoor sent Reason publisher Mike Alissi the following email:

Mr. Alissi,

Regarding this subpoena, I spoke to someone who said she was an attorney representing Reason in connection with this subpoena.  The attorney indicated that Reason intended to notify the individuals referenced therein about the subpoena.  The attorney further refused to provide me any time to take steps to protect the confidentiality of the investigation. 

I have obtained the attached Court Order prohibiting Reason from notifying any third party about the subpoena.

Please forward the Order to the attorney and any other individuals who should be aware of it.

Thank you

Niketh V. Velamoor
Assistant United States Attorney
Southern District of New York
One Saint Andrew's Plaza
New York, NY  10007

As Paul Levy notes in his piece, this is questionable:

the AUSA sent the gag order with a cover letter directly to Reason’s editor even though he knew that Reason was represented by counsel. Query whether this letter violated the ethical rules governing contact by counsel with a party represented by counsel – certainly to me this is typical of arrogance from a high-powered office, some of whose lawyers consider themselves so elite as to be less bound by the ethical rules that govern other lawyers...

Ken White has more details on this noting that it is not technically a violation, because US Attorneys have separate rules they get to play by, but it's still rather shocking, and speaks to another example of an intimidation threat:

Niketh Velamoor had three purposes in sending that message directly to Alissi: to vent the petulance of momentarily thwarted power, to intimidate Reason by threatening it directly, and to undermine the relationship between Reason and its attorney.

Niketh Velamoor is a goon hiding behind a badge. That he went to Harvard simply makes him an unusually snobby goon hiding behind a badge.

If I did that, I'd be disciplined. If Gayle Sproul did it, she'd be disciplined. That's because nearly every jurisdiction prohibits, and recognizes as unethical, directly contacting a client who is represented by counsel on the subject of your communication. That prevents lawyers from tricking the clients of other lawyers into ignoring their counsel to their detriment. New York's Rule 4.2 of the Rules of Professional Conduct governing lawyers is standard:

In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law.

So will Niketh Velamoor be disciplined for breaking this rule?

Don't be ridiculous.

Even if state bars reliably disciplined prosecutors for misconduct — and this never happens  — prosecutors are protected by a special rule. Judges — judges just like Judge Frank Maas, who issued the gag order — have decided that prosecutors need the power to make end-runs around lawyers during the investigation phase of cases, and that this conduct is therefore "authorized by law." Courts have decided that it would be too burdensome to require federal prosecutors to abide by local ethical rules,  rules that apply to literally every other lawyer in the United States, and too restrictive of law enforcement to prevent them from making such pre-indictment contacts as they see fit.

The whole thing speaks incredibly poorly to the US Attorney's Office in the Southern District of NY (probably the highest profile US Attorney's office). It's unlikely that anyone will actually do anything about this, but it seems like the sort of thing that (at the very least) Congress ought to be investigating.

Filed Under: chilling effects, doj, frank maas, free speech, gag order, niketh velamoor, subpoena, us attorney's office
Companies: reason