EU Parliament Calls On EU Countries To Drop All Charges Against Snowden, Protect Him From Extradition

from the well,-that's-interesting dept

The EU Parliament has just approved a measure (by a narrow 285 to 281 vote) telling EU member states to "drop any criminal charges against Edward Snowden, grant him protection and consequently prevent extradition or rendition by third parties, in recognition of his status as whistle-blower and international human rights defender." That's pretty huge. Of course, as a resolution, it's more symbolic than actually meaningful, because the member states may not follow through on the request. But it is an important step in the right direction.

At the same time, the EU Parliament reviewed some other issues concerning mass surveillance, including the whole EU-US safe harbor setup. As we noted, the EU Court of Justice recently tossed out that agreement, which is really creating a huge mess for the internet right now. The EU Parliament "welcomed" the ruling, and pushed for alternatives to the safe harbor agreement. As we noted, the safe harbor agreement was a bit of a mess, but it's important to have something in place to allow the internet to function -- and the real problem was the NSA surveillance program.

At the same time, of course, it's worth noting that surveillance by EU governments is just as bad (if not worse in many cases), and it seems the EU Parliament may be realizing that as well:

Parliament is concerned about "recent laws in some member states that extend surveillance capabilities of intelligence bodies", including in France, the UK and the Netherlands. It is also worried by revelations of mass surveillance of telecommunications and internet traffic inside the EU by the German foreign intelligence agency BND in cooperation with the US National Security Agency (NSA).

Simply blaming the NSA and the US for surveillance is missing the point. It's a pretty broad problem, where the NSA/US government is a huge part of the problem, but the EU doesn't exactly have clean hands either.

Again, as mere resolutions, these efforts have little binding authority, but at least people are coming to terms with the damage done and looking to move in the right direction. Declaring Snowden a whistleblower and protecting him against bogus legal threats and extradition would be a really huge step forward.

Filed Under: ed snowden, eu, eu parliament, extradition, mass surveillance, nsa, safe harbors, surveillance, whistleblowing

Whistleblowers Band Together To Sue FBI, NSA And DOJ For Malicious Prosecution, Civil Liberties Violations

from the jury-trial-request-will-never-be-obliged,-that's-for-sure dept

This should be fun. A bunch of whistleblowers that were hounded, surveilled and prosecuted/persecuted by the US government are banding together to sue all the big names in domestic surveillance.

Thomas Drake, Diane Roark, Ed Loomis, J. Kirk Wiebe and William Binney have filed a civil rights lawsuit against the NSA, FBI, DOJ, Michael Hayden, Keith Alexander, Chris Inglis, Robert Mueller and a handful of others. They will be represented by Larry Klayman, who has some experience suing intelligence agencies.

The claims arise from the government's treatment of these whistleblowers after they started making noise about the NSA's surveillance programs. More specifically, the lawsuit points to the short-lived internet surveillance program THINTHREAD, which was ignored and abandoned in favor of something more expensive, but less protective of Americans' communications.

Plaintiffs worked in various roles on developing and perfecting a candidate program called THINTHREAD which was capable of performing the technical work desired by the NSA for surveillance of the internet efficiently, effectively, and at very low cost.

THINTHREAD was put into operation successfully but only on a demonstration basis. It was approved to demonstrate that it worked, but not officially commissioned for actual operational use.

Despite the Plaintiffs demonstrating that THINTHREAD actually worked, the NSA ignored THINTHREAD as a candidate for performing the desired surveillance of the internet and telephone communications, because THINTHREAD was inexpensive and highly effective, yet Lt. General Michael Hayden had made a corporate decision to “buy” externally rather than “build” internally the solution deemed necessary to harvest internet data.

$4 billion went into another program called TRAILBLAZER (THINTHREAD's internal development cost, by contrast, was only $4 MILLION), along with five years of development. In the end, TRAILBLAZER never worked properly and was abandoned by the NSA in 2006.

This wasteful "funneling" of funds to preferred government contractors was reported to the Dept. of Defense by four of the whistleblowers, under the heading of waste, fraud and misuse of taxpayers' money. The DoD wasn't happy. It issued a scathing internal report. But the NSA wasn't interested in having its faults pointed out. It sent the DOJ after the whistleblowers, using an unrelated leak of information about the NSA's expansive domestic surveillance programs to the New York Times as the impetus for a series of raids.

According to the filing, the raids were retaliatory. The government had already determined the plaintiffs had nothing to do with the leaks reported on by the New York Times. And it used faulty affidavits to justify the corresponding raids.

In fact, the affidavit for the search warrants are themselves based upon an illegal, warrantless phone tap and refer to a conversation illegally intercepted between Plaintiff Roark and Plaintiff William Binney, although misrepresenting the call’s contents. Further, the ultimate pretext for the search, a paper describing THINTHREAD at a high level that Binney had given the FBI, was falsely claimed by NSA to be classified. Thus, the search warrant affidavit is not only false but illegal.

The lawsuit also attempts to use the breadth and reach of known surveillance programs as proof the government knew the whistleblowers had nothing to do with the NYT leak.

Moreover, as later revealed by Edward Snowden, the NSA was even then, with the assistance of cooperating telephone and telecommunications companies, conducting mass interception and surveillance of all telephone calls within the domestic United States for the very purpose – at least so they claimed – of detecting both external and internal threats against the national security of the United States.

Therefore, through those phone and internet records, the Defendants had actual evidence at the time of the false affidavit and retaliatory searches and seizures that none of the Plaintiffs had communicated with the The New York Times or other journalists, except that Plaintiff Drake on his own had spoken confidentially with regard to public and /or unclassified information to the Baltimore Sun.

The end result of the FBI, NSA and DOJ's actions in response to whistleblowing (largely performed through proper channels) is a host of alleged civil liberties violations and other abuses, starting with the violation of 1998's Whistleblower Protection Act. From there, the whistleblowers allege violations of their First, Fourth and Fifth Amendment rights, along with malicious prosecution, intentional infliction of emotional distress and abuse of process.

It will be interesting to see where this goes. The government likely won't be able to dismiss the suit quickly, but the plaintiffs are going to run into a ton of immunity claims that will be buttressed by invocations of national security concerns. Their lawyer -- Larry Klayman -- has occasionally displayed his inability to distinguish between actionable claims and conspiracy theories, a tendency that doesn't improve the plaintiffs' chances of succeeding. But of all the outcomes I imagined for the stories of Drake, Binney, et al, taking these agencies on directly in federal court wasn't one of them.

Filed Under: chris inglis, diane roark, doj, ed loomis, fbi, j. kirk wiebe, keith alexander, larry klayman, michael hayden, nsa, retaliation, robert mueller, surveillance, thinthread, thomas drake, trailblazer, whistleblowers, whistleblowing, william binney

Germany's Leading Digital Rights Blog Netzpolitik.org Accused Of 'Treason' After Leaking Bulk Surveillance Plans

from the still-enough-disk-space dept

Netzpolitik.org is arguably the most influential German blog in the realm of digital rights. It played a key role in marshalling protests against ACTA three years ago. You'd think the German government would be proud of it as an example of local digital innovation, but instead, it seems to regard it as some kind of traitor:

The president of the German domestic secret service has filed criminal charges with the public prosecutor because of two of our articles. The accusation: leaking state secrets.

Those two articles concerned a leak about extending bulk surveillance of online users (original in German), and plans to create a new department of the German secret service to extend its Internet surveillance capabilities (in English.) As Netzpolitik's founder and Editor-in-chief, Markus Beckedahl, explains, he decided to publish this information because it showed that despite Edward Snowden's revelations about NSA surveillance, the German government still thinks the best way of spending taxpayers' money is by spying on them. He adds:

Naturally, we uploaded the original documents relating to our article because there was still enough disk space and because it is part of our philosophy to enable our readers to inform themselves using the original source. Thus, they can scrutinise us and our reporting.

Apparently, this suffices for a twice charge for treason because it seems to be confidential when the Federal Office for the Protection of the Constitution expands the Internet’s surveillance and keeps social networks under surveillance using the dragnet principle. This affects everybody, e.g. we could be under surveillance because we have sign up for the same Facebook event as a potential terrorist. But a public debate thereon is undesired.

This is not the first time that the German government has given Netzpolitik.org a hard time:

Already in the autumn of 2014, the German Federal Chancellery (German: Bundeskanzleramt, translator’s note) has threatened us with a charge which was also announced but later on abandoned.

Like the present case, that seems a clear attempt to intimidate reporting. As Beckedahl points out, even though the new hunt for whistleblowers is not aimed directly at the blog and its journalists, they are likely to be caught up in any investigation, probably just to act as a warning:

It is very rare that the German Federal Public Prosecutor investigates against journalistic sources. We could not find any case since 2005. Now we shall experience the full rigour of the constitutional state. The charge is not directed straight to our reporting but we are nevertheless affected. We are mentioned and have to expect to be under surveillance and possibly to be subject to a house search.

What makes this kind of bullying doubly outrageous is that there is a rather bigger story regarding the press in Germany: the fact that both the NSA and CIA spied on the news magazine Der Spiegel. And yet rather than investigate that fact, or that other newspapers seem to have been victims too, the German government is more concerned about intimidating journalists that dare to report on its own plans to spy on millions of its citizens.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: chilling effects, digital rights, germany, investigative reporting, surveillance, treason, whistleblowing
Companies: nezpolitik

New Whistleblower Claims UK's Nuclear Submarine Fleet A 'Disaster Waiting To Happen'

from the inspiring-others dept

There were, of course, many whistleblowers before Edward Snowden. But it is undeniable that his sudden appearance across the world's news outlets two years ago has ignited a debate about the role, rights and responsibilities of whistleblowers. One manifestation of this new interest is the creation of the Courage Foundation, dedicated to helping them:

The Courage Foundation is an international organisation that supports those who risk life or liberty to make significant contributions to the historical record. We fundraise for the legal and public defence of specific individuals who fit these criteria and are subject to serious prosecution or persecution. We also campaign for the protection of truthtellers and the public's right to know generally.

Currently the Courage Foundation is supporting two whistleblowers: Edward Snowden and Jeremy Hammond. So news that it has set up an emergency fund to help a new, and hitherto unknown, whistleblower, is significant. Here's the background:

Able Seaman William McNeilly is a 25-year-old British Engineering Technician Weapons Engineer Submariner who has blown the whistle on major safety risks and cover-ups within the British Royal Navy's Trident nuclear weapons programme, stating, "We are so close to a nuclear disaster it is shocking, and yet everybody is accepting the risk to the public."

Here are some of his claims:

Among the most startling of McNeilly’s revelations include the fact that three missile launch tests failed, missile safety alarms were ignored, torpedo compartments were flooded and bags were not properly checked for security risks. He also claims that [UK nuclear submarine] HMS Vanguard crashed into a French submarine in February 2009. McNeilly says there was a "massive cover up of the incident. For the first time the no personal electronic devices with a camera rule was enforced." At the time, the Guardian reported that "the Ministry of Defence initially refused to confirm the incident" and that Vanguard suffered mere "scrapes", but McNeilly says one officer told him, "We thought, this is it -- we’re all going to die."

You can read the long and detailed document written by McNeilly on a dedicated Wikileaks page. It includes a comment attributed to him that may sound familiar:

"Please make sure this information is released. I don't want to be in prison without anyone knowing the truth."

That's pretty much what Snowden said when he went public. Although there's no evidence that McNeilly was inspired by Snowden, it would have been hard for him to avoid the huge publicity around the leaks over the last two years. It would be interesting to know whether that played any part in his decision to publish his statement. Unfortunately, unlike Snowden still ensconced in his Russian exile, it looks almost certain that McNeilly will indeed be going to prison:

A Royal Navy spokeswoman said: “We can confirm that AB McNeilly was apprehended last night and is now in the custody of the Royal Navy police at a military establishment in Scotland where he is being afforded the duty of care that we give to all of our people.

The spokesperson went on to say:

“The Royal Navy disagrees with McNeilly’s subjective and unsubstantiated personal views but we take the operation of our submarines and the safety of our personnel extremely seriously and so continue to fully investigate the circumstances of this issue.”

As that makes clear, the UK authorities are trying to play down McNeilly's serious allegations as "subjective and unsubstantiated personal views" in the hope that public interest in the story will wane. But his decision to publish the claims and accept the consequences -- like Snowden -- looks as if it will bring about some scrutiny, not least because UK politicians have taken up his cause alongside the Courage Foundation, which is helping him with his defense costs. That's key, since it may encourage yet more whistleblowers to come forward hoping to achieve the same result.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: leaks, nuclear sub, nuclear submarine, tritan, uk, whistleblower, whistleblowing, william mcneilly

Compare And Contrast Prosecution And Sentences Of David Petraeus With Government Whistleblowers

from the high-court,-low-court dept

Former CIA director David Petraeus received his sentence yesterday for the sweetheart plea deal he struck with the Justice Department after he was discovered to have leaked highly classified information to his biographer and lover Paula Broadwell. As was widely anticipated, the celebrated general received no jail time and instead got only two-years probation plus a $100,000 fine. (As journalist Marcy Wheeler has pointed out, that's less than Petraeus receives for giving one speech.)

The gross hypocrisy in this case knows no bounds. At the same time as Petraeus got off virtually scot-free, the Justice Department has been bringing the hammer down upon other leakers who talk to journalists—sometimes for disclosing information much less sensitive than Petraeus did. It's worth remembering Petraeus' leak was not your run-of-the-mill classified information; it represented some of the most compartmentalized secrets in government. Here's how the original indictment described the eight black books Petraeus handed over to Paula Broadwell:

The books "collectively contained classified information regarding the identifies of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high-level National Security Council meetings… and discussions with the president of the United States."

While Petraeus' supporters claim none of this information was ever released to the public after he leaked it to Broadwell, that does not matter in leak cases. You can just ask former CIA officer John Kiriakou, who disclosed the names of two supposedly undercover CIA officers to a researcher. The names were never published, but Kiriakou still got thirty months in jail. 

Let's also not forget that David Petraeus lied to FBI officials when they questioned him about his leak. For a reason the Justice Department never explained, he wasn't charged for lying at all. As the New York Times pointed out today, "Lying to federal agents is a felony that carries a sentence of up to five years in prison. The Justice Department has used that charge against terrorists, corrupt politicians and low-level drug dealers." Just apparently not former CIA directors.

Petraeus' deal comes just days after federal prosecutors recommended another sentence to a convicted leaker who worked for the same Central Intelligence Agency—Jeffrey Sterling. In Sterling's case the prosecutors are calling for twenty-four years of prison time. Sterling was convicted of leaking information to Pulitzer Prize-winning reporter James Risen about a botched CIA mission that occurred almost two decades ago. The lawyer for former State Department official Stephen Kim, currently in jail for leaking innocuous information to Fox News' James Rosen, has also objected to the "profound double standard" in Petraeus' case versus Kim's.

To be fair, the rank-and-file at the FBI and Justice Department seem to recognize how egregious the hypocrisy surrounding Petraeus' case is: while Attorney General Eric Holder himself signed off on the lenient deal, he reportedly did so over strenuous objections from FBI and DOJ officials.

Ultimately, no one should be charged under the Espionage Act for leaking information to journalists, but if the government is going to bring charges against low-level officials, it has a responsibility to do so against high-ranking generals as well. And actually, the Justice Department's reasoning behind not seeking a trial for Petraeus is quite telling for just how unjust the Espionage Act is. As the New York Times reported:

[W]ithout a deal, the Justice Department would have faced the prospect of going to trial against a decorated war hero over a disclosure of secrets that President Obama himself said did not harm national security. Plus, a trial would require the government to reveal some of the classified information.

The Justice Department's fear about an embarrassing trial is one the most egregious aspects of Espionage Act prosecutions against leakers and whistleblowers: defendants can be found guilty even if there was no damage to national security at all. It's not one of the elements of the crime, so prosecutors don't have to prove it. By forgoing a trial because they are afraid of graymail, the government is also basically saying to future leakers "if you're going to leak classified information, make sure it's something really classified." 

It's possible that Petraeus' deal was so egregious that this could be good news for other leakers. The Daily Beast's Kevin Mauer argued as much earlier today:

Petraeus's relatively light punishment will likely have lasting ramifications on future leak cases, national security lawyers said. They argue the government is cutting its own throat by offering him a more lenient sentence in the wake of harsher penalties to other leakers and creating a double standard that can be exploited by defense attorneys in future cases.

However, given the government's unrelenting pursuit of Sterling, there is little chance of this having a lasting effect. Unfortunately, the Petraeus case will go down in history as one of the most blatant examples of the inherent unfairness of leak trials and the two-tiered system of justice that whistleblowers often face. 

Reposted from the Freedom of the Press Foundation

Filed Under: criminal justice, david petraeus, high court, leakers, leaking, low court, sentences, whistleblowing

Welcome To The New League Of Leakers -- Courtesy Of Edward Snowden

from the courage-is-contagious dept

Whistleblowers are hardly a new phenomenon -- Wikipedia lists dozens of the more famous ones, going back to the 18th century. There have also been important government whistleblowers before -- people like Daniel Ellsberg, William Binney, Thomas Drake and John Kiriakou. Chelsea Manning's leak was on a huge scale, and garnered enormous media attention. And yet there is no doubt that it is Edward Snowden who has really changed the whistleblowing world most dramatically.

Because of what he leaked, and the way he leaked it -- the fact that he has evaded arrest, and is still free, even if living a somewhat circumscribed existence in Russia -- Snowden has ignited debates at multiple levels. As well as the obvious ones about surveillance, privacy, power and democracy, there's another one around whistleblowing itself, which has already had important knock-on effects. Evidence of that comes in an interesting post by Bruce Schneier, where he tots up the likely number of leakers that have recently started to provide information about the US intelligence community. Alongside Manning and Snowden, he thinks there are probably five more:

Leaker #3: The person who leaked secret documents to Jake Appelbaum, Laura Poitras and others in Germany: the Angela Merkel surveillance story, the TAO catalog, the X-KEYSCORE rules.

...

Leaker #4: "A source in the intelligence community," according to the Intercept, who leaked information about the Terrorist Screening Database, the "second leaker" from the movie Citizen Four

...

Leaker #5: Someone who is leaking CIA documents.

...

Leaker #6: The person who leaked secret information about WTO spying to The Intercept and the New Zealand Herald

...

Leaker #7: The person who just leaked secret information about the U.S. drone program to The Intercept and Speigel.

Schneier's post gives links for all those stories, as well as his reasons for thinking they are likely to be separate people (although he notes numbers 3 and 7 might be the same person.) As he concludes:

Way back in June 2013, Glenn Greenwald said that "courage is contagious." He seems to be correct.

It's almost as if people taking extremely high risks to leak important information about dubious activities by the US intelligence community has become normal. That's really pretty remarkable, and show just how big Snowden's impact has been.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: ed snowden, leakers, leaking, whistleblower, whistleblowers, whistleblowing

Will Senator Burr's Attempt To Bury CIA Torture Report Actually Make It More Likely The Report Leaks?

from the action,-reaction dept

We already wrote about how Senator Richard Burr has demanded that the White House return all copies of the full, unredacted CIA Torture Report, which Senator Dianne Feinstein distributed to various department heads last month. As we noted in our article, this seemed like an effort to stuff the full report down the memory hole to make sure that no one could ever do anything with it at all and to make it more difficult to access in a series of FOIA lawsuits. Those lawsuits are demanding the report, as well as the internal Panetta Review that is supposedly the smoking gun, involving an internal CIA analysis that mostly agrees with the Senate Intelligence Committee's analysis in the full report.

Reporter Jason Leopold of Vice News (and one of the people suing the government, under FOIA, for the documents) has some more details about Burr's action, including a copies of the letter [pdf] Burr sent the White House, and the letter that Feinstein sent in reply. As Leopold notes, Burr's decision seems specifically designed to try to do a legal two-step to make the document immune from FOIA lawsuits:

By advising the White House to cease entering the full torture report into an executive branch system of records, Burr is saying that the document is a "congressional record," which is exempt from FOIA, as opposed to an "agency record," which is subject to the provisions of the law.

Feinstein's response shows that she disagrees, and that the report can properly be handed over to the Executive Branch. The reason for the letter, obviously, is for it to be used in killing off the FOIA attempts, and the DOJ wasted no time in making just that argument:

Tonight, the government filed a response in our long-running lawsuit and asked a judge to dismiss our case. A CIA lawyer said in a 31-page declaration that the redactions in the executive summary were justified and the Panetta Review is properly classified and should not be released. The government also responded to the ACLU's FOIA lawsuit for the full torture report. The government said the full torture report is not an agency record subject to FOIA, it is a congressional record. The government cited Burr's letter to support its case.

You can see that filing here [pdf], with this being the relevant portion:

Congress retains control over the Full Report for at least five reasons. First, the conditions under which the report was created reflect that SSCI as a whole asserted complete control over not only drafts, but also the final product. Second, throughout the years-long process of creating and finalizing the Report, both SSCI and the CIA handled the Report in accordance with SSCI’s instructions and strict limitations on access. Third, SSCI voted, in accordance with Senate Rules, to seek declassification and release only of the Executive Summary, Findings and Conclusions – not the Full Report. The then-SSCI Chairman’s decision to provide the Full Report to certain Executive Branch agencies for nonpublic use does not amount to a Committee decision to seek to declassify and release the Full Report. Fourth, the current Chairman of SSCI has reiterated SSCI’s intent to retain control of the Full Report. Finally, the defendant agencies have treated the Full Report, received in December 2014, as a congressional record, sequestering it in secure storage space appropriate to its classification and carefully limiting its dissemination and use. Because the Full Report remains a congressional record as opposed to an agency record, this Court lacks jurisdiction over plaintiffs’ FOIA claim seeking its release, and plaintiffs’ claim should be dismissed under Rule 12(h)(3) or 12(b)(1).2

This is not all that unexpected, even if it's fairly ridiculous. However, it's possible that the whole thing could backfire badly. Feinstein knew what she was doing in distributing the report to a number of people within the administration. While all of whom have access to it have the proper clearance, at least some have to agree that this report is an important historical document, detailing incredible misdeeds by the CIA -- and some of them may view it as important to have that information shared with the public to make sure such events never happen again.

Senator Burr's rather obvious move here to demand all copies be "returned" is seen by many as an attempt to bury the report entirely. As Senator Ron Wyden points out, returning the report would "aid defenders of torture who are seeking to cover up the facts and rewrite the historical record." Given that, it seems more likely that at least someone with access to the document is going to realize that this important review of history is at risk of being shredded. Hopefully there is someone in the government with the courage to stand up and get a copy out to reporters in some manner or another, before Burr has a chance to succeed in wiping it off the face of the earth.

Filed Under: cia, cia torture report, congress, dianne feinstein, doj, foia, jason leopold, leaks, richard burr, senate, senate intelligence committee, whistleblowing

Feds Gearing Up To Try, One More Time, To Force James Risen To Reveal His Source

from the showdown dept

Last week, we noted that Attorney General Eric Holder was hinting that the DOJ was near "a resolution" with reporter James Risen -- the NY Times reporter who the DOJ has been harassing and trying to force to give up sources. In a recent interview, Risen makes the rather compelling case, that this effort by the DOJ was never about actually solving any sort of crime (the DOJ knows who did the leak), but rather about totally discrediting and/or punishing Risen for some of his other investigative reports. If the DOJ can undermine the ability of Risen to protect sources, he loses many sources.

Still, at about the same time that Holder was (again) insisting that no journalists would go to jail under his watch and that they were close to a resolution with Risen, the DOJ was exploring the possibility of issuing yet another subpoena on Risen to try (again) to force him to reveal his sources:

Federal prosecutors obtained 100 blank subpoenas last week for use in the upcoming trial of a CIA officer accused of leaking top-secret information to New York Times reporter James Risen.

The move clears the way for the Justice Department to proceed with a new review of whether Risen should be subpoenaed to testify at the trial of Jeffrey Sterling, the CIA employee accused of disclosing details of a CIA effort to set back Iran's nuclear program.

Some of this is procedural. The DOJ put some new rules in place since the last subpoena, and so there's an argument that in order to review the possibility of a new Risen subpoena, the DOJ basically has to do all the initial legwork, and then the DOJ (and Holder in particular) will "review" under the new rules before determining whether to try this silly process again or to back down. Of course, that seems silly. It seems much more viable to just come out and say that they won't subpoena reporters like this and make that a clear and stated rule. But the DOJ seems unwilling to give up this harassment and intimidation tool.

In the end, it seems likely that Holder will fold, but this game of chicken, putting the threat of jail time on Risen to see who blinks first, is really quite disgraceful by the DOJ. So far, Risen has given no indication he intends to comply -- and has held to the same story all along, that he will not give up his sources under any circumstance. Holder, on the other hand, has promised not to put a reporter doing his job in jail. If both men live up to their word, Holder is the one who needs to blink, and it's pretty stupid to go through this whole charade in the meantime.

Filed Under: doj, eric holder, james risen, journalism, leaks, protecting sources, sources, subpoena, whistleblowing

TPP Leak Confirms Measures To Criminalize Corporate Whistleblowing

from the no-public-interest-or-free-speech-exemptions dept

As Mike has reported, the core of the newly-leaked TPP chapter is about granting Big Pharma's wish-list, with other worrying stuff for the copyright industry's benefit thrown in for good measure. But hidden away in the chapter's 70+ pages there's something very different -- and very dangerous. Here's how the Australian newspaper The Age explains it:

The draft text provides that TPP countries will introduce criminal penalties for unauthorised access to, misappropriation or disclosure of trade secrets, defined as information that has commercial value because it is secret, by any person using a computer system.

That's clearly an incredibly broad definition of trade secret, and will allow a vast range of materials to enjoy this kind of protection. And by requiring criminal penalties, TPP aims to make that protection very serious indeed:

TPP countries may criminalise all such disclosures or, if they wish, limit criminal penalties to cases that involve "commercial advantage or financial gain"; are directed by or benefit "a foreign economic entity"; or are "detrimental to a [TPP] party's economic interests, international relations, or national defence or national security."

Notice that those are simply options: the default position is to criminalize everything. Moreover, even those "limited" cases could be applied very widely. Particularly troubling is the following aspect of the proposed text:

There are no public interest or free speech exemptions. Criminalisation of disclosure would apply to journalists working for commercial media organisations or wherever the leak was considered harmful to the "economic interests" of any TPP country.

The chilling effect that this would have on investigative reporting is evident. It would also represent yet another powerful reason not to become a corporate whistleblower.

The presence of this section in the latest TPP text is not a complete surprise: a slightly shorter version was already in the previous leak of this chapter, as we reported earlier this year. Moreover, its appearance in TPP seems to be part of a larger push for stronger protection of trade secrets around the world. In 2013, the European Commission proposed new rules "to help protect against the theft of confidential business information." One of the questions in the accompanying FAQ was whether trade secret protection will be part of TAFTA/TTIP. Here's the reply:

Trade secrets will be discussed in the TTIP negotiations, and has a heightened level of relevance with the recent allegations of economic espionage carried out by the national Security Agency (NSA). One goal could be to make sure that the two legal regimes are inter-operative facilitating recognition and enforcement of judgments on either side of the Atlantic. The EU and the US also have a common interest in pursuing protection of trade secrets against misappropriation in third countries.

That's a clear signal that trade secrets will indeed be part of TAFTA/TTIP. Unfortunately, the latest TPP leak gives a pretty good idea of just how bad they are likely to be.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: criminalize, leaks, tpp, trade secrets, ustr, whistleblowing

Obama Administration Has Put Media Leakers In Jail For Nearly 50 Times As Long As All Other Administrations In History

from the ouch dept

We've been among those who have pointed out that the "most transparent administration in history," the Obama administration, has prosecuted media leakers more than all other Presidents in history combined (eight prosecutions in this administration, compared to three total in all previous administrations). Gabe Rottman, over at the ACLU, decided to dig into another stat: how much time has the Obama administration been able to lock up media leakers in jail compared to all other administrations. The answer? The Obama administration has put folks who leaked info to the media in jail for 526 months as compared to 24 months for all other Presidents combined. Admittedly, 420 of those months went to Chelsea Manning, but even if you take that out, we're still talking 106 months for other leakers in cases from this one administration vs. 24 months for all other administrations.

It once again has to make you wonder why the Obama Administration is so focused on punishing anyone who leaks information to the media (even as it likes to "unofficially" leak information all the time). In the end, I keep going back to the speculation I heard from Daniel Ellsberg nearly four years ago (which is also where I first heard the stat about the number of Obama prosecutions against leakers -- at that time, it was just five prosecutions, rather than eight).

Ellsberg's theory was that while President Bush abused the power of the Presidency in the surveillance realm, he was actually proud of it. And while people were upset about secrets leaking, they didn't find it embarrassing. President Obama, on the other hand, came into office claiming to be different -- arguing against those kinds of abuses and promising changes and protections for civil rights. Instead, it appears that the process started under President Bush continued and expanded under President Obama and -- Ellsberg speculated years ago -- the President is somewhat embarrassed by this, leading him and his administration to react negatively to the leaks. Not because of any legitimate security concern, but to try to silence those who seek to reveal that the administration and the President have not come close to living up to their ideals but rather went the other way entirely.

Putting those who leaked info to the media in jail for 526 months -- nearly 44 years -- says a lot about the way the administration truly views whistleblowing, and it's not a saying anything good.

Filed Under: chelsea manning, espionage act, free speech, leak prosecutions, leaks, obama administration, reporting, transparency, whistleblowing