Senators Not Impressed By DOJ's Answers On Rule 41 Changes

from the answer-the-damn-question dept

The DOJ has finally responded to questions posed by several senators about its interpretation of the proposed Rule 41 changes, due to go into effect on December 1st. Arriving shortly before the deadline -- and during the Thanksgiving holiday Black Friday news rush -- the DOJ's letter [PDF] contains a few explanations of its jurisdiction limitation-stripping and roving botnet warrants.

Unfortunately, not much is clarified other than that the DOJ still feels its proposal is nothing more than Rule 41 64-bit -- an update of existing law more in line with today's connected reality. (The DOJ offers no insight on its reluctance to update other outdated laws like the CFAA…) It also appears to believe the Fourth Amendment impact of its "one warrant, thousands of searches" proposal will be minimal and that it will maintain the same level of respect it has shown for privacy protections (also minimal) under the updated rule.

Needless to say, Sen. Wyden and co. aren't impressed by the DOJ's response.

Wyden and Coons were among 11 senators and 12 House members who queried DOJ about the hacking powers expansion last month. The department’s reply, which arrived today, should be “a big blinking warning sign about whether the government can be trusted to carry out these hacks without harming the security and privacy of innocent Americans’ phones, computers and other devices,” Wyden wrote.

The DOJ is still dodging a few questions. One question in particular was completely unaddressed in the DOJ's response. Wyden and his co-signers asked what the DOJ was going to do to prevent forum shopping for compliant judges -- something that would become far more common with jurisdictional limits removed.

The letter does not recount any specific department policies or training that would prevent forum shopping. It does stress police will only be able to seek warrants in districts where activity related to a crime has occurred and that the revised rule uses the same language as existing out-of-district warrant authorities for terrorism cases.

The DOJ either can't answer this or won't answer this. In either case, the lack of response indicates the DOJ isn't interested in preventing law enforcement agencies (like the FBI) from shopping for judges. If there's nothing in place now, it's highly unlikely any guidance will be in place by December 1st. If there is something in place, it's apparently nothing more than a suggestion that law enforcement seek warrants in their own jurisdictions. If the DOJ was truly interested in shutting down forum shopping, it would have begun putting policies in place at any point over the last couple of years while it pursued this "update" of Rule 41.

The letter does say law enforcement agencies won't be able to peek at private files while mucking about the insides of citizens' computers to shut down botnets. But the letter (and the Constitution) both say a lot of things that are great in theory, but less so in practice. Fourth Amendment violations can only be cured by visits to courtrooms, but it's something that's prohibitively expensive and subject to a large number of "GET OUT OF VIOLATION" cards (good faith, plain view, close-but-no-suppression, etc.) issued by presiding judges.

The redux of the changes is still this: if anonymization efforts are made by anyone targeted in a criminal investigation, the FBI, etc. can go find the most compliant judge available to sign off on a single warrant that can be used to search thousands of computers worldwide. It can also do this under the pretext of fighting botnets, performing the same sort of limited search for identifying info, even when all the hundreds or thousands of targets are not suspected of any wrongdoing.

Pretty much the only thing standing between the DOJ's proposal and the December 1st implementation is Congressional members' decision to "opt in" to a shutdown fight -- something the DOJ is clearly hoping won't happen. Wyden's recently-introduced bill would push the adoption back until the middle of next year, but it still requires representatives to express some sort of opinion (yes/no) on rule changes that could easily coast into existence while everyone in Congress is distracted by upcoming holidays and annual budget battles.

Filed Under: chris coons, doj, fbi, hacking, jurisdiction, malware, nit, ron wyden, rule 41

Bill Introduced To Push Back Approval Of DOJ's Proposed Rule 41 Changes

from the buying-time dept

Unless someone steps up to push this off course, the DOJ's proposed changes to Rule 41 will become law December 1. That's the key part: doing something. All that has to happen is nothing for the changes to become law. The December 1st date plays right into the DOJ's hands, arriving between two major holidays when legislators have other things on their minds, including the annual Congressional fisticuffs over the federal budget.

The DOJ says the changes are no big deal. Just an "update" on outdated laws. Oddly, it's never shown any interest in updating any other outdated laws (like the CFAA) or pushed for a reconsideration of the Third Party Doctrine, which traces back nearly four decades. When it comes to expansions of power, though, it's apparently time for some "updating."

The proposed changes would allow the FBI to hack thousands of computers around the world with a single warrant, much like it already did during two child porn investigations. Unfortunately for the FBI, its warrant is being met with successful challenges because the agency clearly violated Rule 41 jurisdictional limitations.

In addition, the DOJ wants permission to break into "compromised" computers and poke around inside them without the permission or knowledge of the owners of these computers. It also wants to treat anything that anonymizes internet users or hides their locations to be presumed acts of a guilty mind. The stripping of jurisdictional limits not only grants the FBI worldwide access for digital seizures and searches, but also encourages it to go venue shopping for judicial rubber stamps.

Earlier this year, Sen. Ron Wyden introduced a bill aimed at stopping the DOJ's Rule 41 push. Not much has been heard about this bill since, so Wyden (along with Sens. Coons, Lee, Franken, and Daines) has introduced another bill seeking to prevent a "do nothing" approval of expanding hacking/search powers. The "Review the Rule Act" [PDF] is about as succinct as legislation gets. Here's the complete summary of the proposed legislation (via Naked Security):

To delay the amendments to rule 41 of the Federal Rules of Criminal Procedure.

Wyden's earlier bill hasn't gained any traction and the hopes of a complete rejection before December 1st are nearly nonexistent. So, this bill just asks for a little more time to discuss the implications of the changes. This would move the default approval date back seven months to July 1, 2017.

This would allow representatives more time to fully consider the DOJ's proposal, freed from the time crunch of major holidays and annual federal budget discussions. There's far too much at stake to simply allow the DOJ to roll its Rule 41 ball downhill and past a distracted Congress. Many legislators like procrastination as much as they like not doing anything, so signing off on this proposal shouldn't require much effort, mental or otherwise.

Filed Under: congress, doj, fbi, hacking, nit, ron wyden, rule 41, warrant

Court Dismisses Anti-Muslim Troll Pam Geller's Lawsuit Against The DOJ For Facebook's Moderating Actions

from the sue-better,-dumbass dept

Anti-Muslim troll and self-proclaimed First Amendment warrior Pam Geller's stupid lawsuit against the DOJ for social media companies' removal of her Islamophobic posts has reached an end (if only temporarily). DC District Court Judge James Boasberg's decision pretty much aligns with the DOJ's motion to dismiss: in short, Geller is wrong about Section 230, wrong about the DOJ's "enforcement" of this affirmative defense, and not even close to targeting the right entity(ies) in her lawsuit. (via Eric Goldman)

A very short recap: Geller routinely posted anti-Mulism content to social media platforms. These platforms would take her posts down and occasionally suspend her accounts. Geller felt this was censorship (it isn't) so she sued not Facebook, not Twitter, not any other social media service but the federal government. In her view Section 230 of the CDA is not a defense, but an excuse for social media platforms to remove her dubious contributions. What Geller ignores is that Section 230 is likely the only reason her posts stay live at any platform for any length of time, simply because it shields Facebook et al from being held civilly liable for content created by users.

Boasberg's opinion [PDF] only runs 11 pages but it's more than enough to dispense with Geller's ridiculous legal arguments. He gets right to the crux of the issue in the first paragraph.

Facebook, YouTube, and Twitter may be host to a mélange of cat videos, musings from long-lost cousins, and odes to Beyoncé, but not all content is welcome on these social-media platforms. Pursuant to their private terms of service, the companies have repeatedly taken down some of Plaintiffs’ posts criticizing Islam. Plaintiffs — two non-profit organizations and their leaders — allege that such action constitutes censorship and discrimination on the basis of content, viewpoint, and religion. Yet a quick glance at this case’s caption reveals a surprise: Plaintiffs have not named the companies as Defendants. Instead, they have sued only the United States Attorney General, alleging that a provision in a federal statute — § 230 of the Communications Decency Act — enables the companies’ censorship and discrimination and violates the First Amendment.

And nails this point home again and again.

These and other actions led Plaintiffs to conclude that Facebook, YouTube, and Twitter employ their company policies to suppress the speech and activities of disfavored speakers, including Plaintiffs, and to discriminate against “certain political parties, national origins, and religions,” particularly Israelis, Jews, and conservatives. Yet Plaintiffs have not brought this suit against the social-media companies. Instead, in July 2016, they named the United States Attorney General as the lone Defendant.

The court also addresses Geller's convoluted argument that the DOJ -- via Section 230 of the CDA -- is somehow responsible for content moderation efforts performed by Facebook and others.

[Section 230] does not grant the Attorney General any power to impose criminal or civil liability, nor to direct or forbid interactive computer services to take any particular action vis-à-vis third-party users, including deleting objectionable content. Indeed, § 230 affords Defendant no role — enforcement or otherwise — of any kind, nor does it delegate any enforcement role to any federal agency or federal official.

This brings it back to a question of standing: Geller and her co-plaintiffs have none. The attorney general has no power to enforce Section 230. Even if the court were to grant Geller standing and find her arguments actionable, the remedy Geller seeks would have zero effect on the actions she's suing over.

It would not constrain Facebook, Twitter, or YouTube from invoking § 230 as a defense to any state-law discrimination or censorship action brought against them by Plaintiffs, nor would it restore Plaintiffs’ removed content or legally prevent the social-media platforms from deleting or otherwise editing Plaintiffs’ content in the future.

And the court isn't interested in handing down orders based on Geller's theoretic extrapolations.

Plaintiffs’ argument rests on the entirely speculative implication that Facebook, Twitter, and YouTube would voluntarily change course and permit Plaintiffs’ censored content to stand were the Attorney General to declare § 230 unconstitutional. Indeed, even absent the affirmative defense supplied by § 230, the private social-media companies could argue that they cannot be compelled to publish a particular message.

Which brings this all back to the original -- and strongest -- point of this decision: lawsuits are generally more successful when they target the right defendants. [emphasis in the original]

If Plaintiffs remain unhappy with the companies’ content decisions, they can sue them and attempt to defeat any § 230 defense that is raised — e.g., by invoking the same constitutional arguments offered here.

Section 230 has been under attack recently and courts have, unfortunately, been humoring some novel legal theories. Fortunately, Geller's legal theories are far too novel to be entertained by this court. Sure, it's an attack on Section 230 protections, but only in the most abstract definition of the word. Geller's case never had a chance, and she seems -- at least to date -- unwilling to go directly at the social media platforms she feels have wronged her. But she's free to spend her money fighting pointless legal battles, just like an other US citizen.

Filed Under: cda 230, doj, pam geller, section 230
Companies: facebook, twitter

Unsealed Warrant Shows FBI Malware Affected Innocent Tor Users While Agency Ran More Than 20 Child Porn Sites

from the supporting-justifications-cited:-1.-the-ends dept

Thanks to the ACLU's push to unseal documents related to the FBI's targeting of TorMail users and Freedom Hosting, the warrant affidavits supporting its NIT deployment have been released by the agency. Joseph Cox of Motherboard reports:

In 2013, the FBI received permission to hack over 300 specific users of dark web email service TorMail. But now, after the warrants and their applications have finally been unsealed, experts say the agency illegally went further, and hacked perfectly legitimate users of the privacy-focused service.

“That is, while the warrant authorized hacking with a scalpel, the FBI delivered their malware to TorMail users with a grenade,” Christopher Soghoian, principal technologist at the American Civil Liberties Union (ACLU), told Motherboard in an email.

The 99-page affidavit [PDF] is lightly-redacted but contains some completely uncensored and surprising admissions from the agency. Contrary to its post-release statements about the scope of the "narrowly-tailored" warrant not being exceeded, the actual contents show the deployment of the NIT to unmask Tor users is much more aligned with Soghoian's "grenade" description.

As Cox points out, the TorMail affidavit [PDF] says the NIT would only be delivered to logged-in, specifically-targeted TorMail users.

[T]he NIT… will be deployed on the TARGET ACCOUNTS while the TARGET ACCOUNTS operate in the District of Maryland, to investigate any user who logs into any of the TARGET ACCOUNTS by entering a username and password.

In reality, the deployment occurred the moment a user landed on any site utilizing Freedom Hosting -- not just the child porn sites the FBI had taken control of. And the number of sites the FBI was running during this investigation is staggering.

According to the new documents, the NIT was used against users of 23 separate websites.

If you thought the FBI's admin efforts for two separate child porn websites (in two investigations spaced a couple of years apart) were questionable, you have to wonder about the morality (or legality) of the US government becoming one of the world's largest distributor of child pornography. Researcher Sarah Jamie Lewis notes that, according to her numbers, the FBI could have been operating close to half (if not more) of the child porn websites in existence.

And, as for the claims the FBI didn't exceed the scope of the warrant: that's clearly not true. The warrant was issued in Maryland and was delivered to users all over the world. The supporting affidavit contains descriptions of one site apparently located in Hungary, but never makes any attempt to limit the FBI efforts to within US borders, much less Maryland.

The NIT violated Rule 41 limitations and then exceeded the FBI's own assertions about targeting specific users. It continues to deploy the same malware against Tor users with a similar lack of concern for jurisdictional restrictions or its implicit invitation for foreign law enforcement agencies to engage in the same tactics against US citizens.

Filed Under: 4th amendment, child porn, doj, fbi, malware, nit, playpen, warrant

DOJ Sues DirecTV, Calling It A 'Ringleader' of Collusion Over Regional Sports Programming

from the room-full-of-villains dept

Back in 2013, Time Warner Cable (now Charter Communications) struck an $8.35 billion deal with the LA Dodgers to create LA SportsNet, the exclusive home of LA Dodgers games. To recoup that money, Time Warner Cable began demanding exorbitant prices from competing cable providers if they wanted access to the channel. Unsurprisingly, all of Time Warner Cable's competitors in the region balked at the $5 per subscriber asking price for the channel. As a result, for three years now a massive portion of Los Angeles hasn't been able to watch their favorite baseball team, since Time Warner Cable's asking price not only kept competing cable operators from delivering the channel, but prohibited over-the-air broadcasts of the games.

Fast forward to this week, when the Department of Justice announced it was suing DirecTV for being the "ringleader" in a collusion effort involving the channel. According to the full DOJ complaint (pdf), DirecTV (now owned by AT&T), worked covertly in concert with local competitors Cox, Charter (before it owned Time Warner Cable) and AT&T (before it owned DirecTV) to coordinate a refusal to pay Time Warner Cable's high prices. The DOJ's statement notes that these companies engaged in "unlawful information exchanges" to coordinate this refusal in violation of antitrust law:

"As the complaint explains, Dodgers fans were denied a fair competitive process when DIRECTV orchestrated a series of information exchanges with direct competitors that ultimately made consumers less likely to be able to watch their hometown team,” said Deputy Assistant Attorney General Jonathan Sallet of the Justice Department’s Antitrust Division. “Competition, not collusion, best serves consumers and that is especially true when, as with pay-television providers, consumers have only a handful of choices in the marketplace."

Right, except calling any of this "competition" is being rather generous. It's an interesting case in that Time Warner Cable had been broadly considered the bad guy in this equation for the last three years by Dodgers fans, 70% of which couldn't watch their favorite team despite living in Los Angeles. And even after the DOJ lawsuit was filed this week, outlets like the Los Angeles Times were perfectly willing to ignore the illegal behavior, claiming that collusion was ok because it punished Time Warner Cable's cash grab to the indirect benefit (sort of) of consumers:

"At a time when there’s open rebellion against soaring pay-TV prices, these companies were clearly acting out of self-interest. The last thing they wanted was to give people another reason to cut the cord. Whatever their primary motive, though, they also were defending their customers’ interests. That’s rare and welcome behavior from an industry that all too often regards consumers as ATMs from which it can make frequent withdrawals."

And while some of that may be true, collusion is still collusion, and the fact that Dodgers fans still can't watch their favorite team can hardly be seen as a win. For whatever it's worth, AT&T, currently trying to sell its $85 billion acquisition of Time Warner (not to be confused with Time Warner Cable) to regulators, was quick to remind everybody that it didn't own DirecTV at the time this occurred:

"The reason why no other major TV provider chose to carry this content was that no one wanted to force all of their customers to pay the inflated prices that Time Warner Cable was demanding for a channel devoted solely to LA Dodgers baseball. We make our carriage decisions independently, legally and only after thorough negotiations with the content owner. We look forward to presenting these facts in court."

It's an amazing case where in reality everybody is the bad guy, and despite companies colluding and covertly exchanging sensitive data, nobody really wound up benefiting. Well, except perhaps those that were able to cut the cord because they don't watch baseball.

Filed Under: baseball, collusion, doj, prices, tv
Companies: at&t, charter communications, directv, la dodgers, time warner cable

DOJ Finally Releases Its Internal, Mostly-Vague CFAA Prosecution Guidelines

from the DOJ-knows-'unauthorized-access'-when-it-sees-it,-apparently dept

The government often engages in very dubious CFAA prosecutions, but it takes a lawsuit to get it to talk about how it decides what cases are worth pursuing.

[T]hanks to a legal challenge to the CFAA, the Department of Justice is for the first time releasing its 2014 guidelines on how prosecutors should charge computer crimes — when someone exceeds “authorized” access on a computer. (First Look Media, the publisher of The Intercept, is a plaintiff in the case.)

The Department of Justice acknowledges that “laws addressing the misuse of computers have not kept pace uniformly with developments in technology and criminal schemes” though it maintains that the law remains “important” in prosecuting cybercrimes.

I'd imagine the DOJ is more concerned about crafty cybercriminals beating them in the tech arms race than it is about legislators' inability to reform the CFAA (something the DOJ routinely opposes). The "Intake and Charging Policy" memo [PDF] for the DOJ's prosecution of cybercrimes lists a number of factors to be considered before pursuing federal charges.

The first key is the sensitivity of the information or system accessed "without authorization," followed by national security considerations and economic impact. Public safety is also a factor. The document points out that information obtained without authorization can be deployed to stalk and harass officials and lower level members of the general public.

But the definition of "unauthorized access" isn't explored adequately in the legal memo, leaving this to be answered on a case-by-bad case basis. The prosecutions of Aaron Swartz and Andrew "Weev" Auernheimer suggest the DOJ allows this definition to be set by the complainant rather than by policy. When MIT or AT&T complain, the government listens.

Also of note is the DOJ's willingness to turf questionable cases to the local boys if that seems more likely to result in a conviction.

Where criminal activity risks these broad harms or has a substantial effect in several parts of the country, federal prosecution may be warranted. In other circumstances, if the effect of a violation is geographically focused and limited, deference to state or local authorities may be warranted, where they have the legal tools and resources to act.

The DOJ also reserves the right to take local prosecutions federal.

Where an offense causes particularly significant harm to a single District or community, federal prosecution may be warranted.

And then there's this part, which is what worries security researchers and white hat hackers:

[F]ederal prosecution may be warranted even where the offender did not actually obtain any such information; in other words, in certain aggravated circumstances, mere access to a computer system that stores these types of sensitive information may weigh in favor of prosecution.

On the plus side, the DOJ memo does make it clear that it would rather have evidence of malicious intent than mere "unauthorized access" to work with. It also states that it should take more than violations of Terms of Service or other "contracts" with websites/service providers to trigger federal prosecution.

Unfortunately, the law is still outdated (30 years old this month!) and "unauthorized access" prosecutions are still being handled inconsistently. The DOJ is prone to letting victims steer prosecutions, resulting in completely ridiculous outcomes like the two-year prison sentence handed to Matthew Keys for a 40-minute website defacement he didn't even perform.

The memo somewhat ominously concludes with the statement that this legal memo -- pried out of its hands by litigation -- isn't intended to be "all inclusive." Given the law hasn't aged terribly well and is predicated on a slippery term like "unauthorized access," the DOJ will likely be pursuing questionable edge cases for years to come.

Filed Under: cfaa, doj, guidelines, prosecution

Legislators Demand Answers From DOJ On Expanded Hacking Powers It's Seeking

from the the-first-rule-of-the-new-Rule-41:-there-are-no-rules dept

There's only a couple of months left until the DOJ's proposed Rule 41 changes become law. All Congress has to do is nothing. This is a level of effort Congress is mostly amenable to. If this becomes law, worldwide deployments of malware/spyware during investigations will be unable to be challenged in court. In addition, the DOJ wants to be part of the cyberwar. It's seeking permission to remotely access zombie computers/devices used in cyberattacks to "clean" them.

The rule changes would also add a presumption of guilt to an activity performed by millions of computer users around the world:

Opponents of the pending change to Rule 41 say that it unlawfully confers a new authority that changes substantive rights. First off, they contend that it adds a criminal taint to a perfectly legal practice: using location to cloak your location.

“There are countless reasons people may want to use technology to shield their privacy,” wrote the Electronic Frontier Foundation earlier this year. “From journalists communicating with sources to victims of domestic violence seeking information on legal services, people worldwide depend on privacy tools for both safety and security.”

The DOJ has argued that these Rule 41 amendments are just "clarifications" of existing law:

“The amendment would not authorize the government to undertake any search or seizure or use any remote search technique not already permitted under current law,” the DOJ told Consumerist in May, noting that law enforcement would still need to demonstrate probable cause.

This statement obviously isn't true considering how many federal judges have agreed the warrant it used in the Playpen investigation exceeded existing jurisdictional limits.

Fortunately, there are legislators pushing back against the DOJ's proposed changes. Ron Wyden has sent a letter [PDF] to the DOJ -- co-signed by 22 other legislators -- asking for clarification on the DOJ's interpretation of the changes it's seeking.

One of the questions the group has is how the DOJ can produce probable cause to search thousands of devices.

Please describe any differences in legal requirements between obtaining a warrant for a physical search versus obtaining a warrant for a remote electronic search. In particular, and if applicable, please describe how the principle of probable cause may be used to justify the remote search of tens of thousands of devices. Is it sufficient probable cause for a search that a device merely be "damaged" and connected to a crime?

The letter also raises the issue of forum shopping. With jurisdictional limits removed, federal law enforcement officers are free to find judges more willing to sign off on their warrant requests, rather than being forced to work with those in the locality the alleged criminal activity took place.

The DOJ's proposed botnet cleaning efforts raise a whole set of new troubling questions, ones that Wyden and co. would like to see answered before allowing the rule changes to slide by unopposed. First, there's the question of unforeseen collateral damage -- efforts that hurt more than help.

We are concerned that the deployment of software to search for and possibly disable a botnet may have unintended consequences on internet-connected devices, from smartphones to medical devices. Please describe the testing that is conducted on the viability of "network investigative techniques" to safely search devices such as phones, tablets, hospital information systems, and internet-connected video monitoring systems.

Then there's the question about the proposed "cleaning" efforts. Under what authority will law enforcement break into Americans' computers and screw around with their software and hardware?

Will law enforcement use authority under the proposed amendments to disable or otherwise render inoperable software that is damaging or has damaged a protected device? In other words, will network investigative techniques be used to "clean" infected devices, including devices that belong to innocent Americans? Has the Department ever attempted to "clean" infected computers in the past? If so, under what legal authority?

Good questions. Hopefully, we'll see the answers sometime before December 31st.

Filed Under: congress, doj, fbi, hacking, oversight, rule 41

FBI Boss Blows Past Policies, Guidelines, His Own Staff To Bring Back Clinton Email Investigation

from the marching-to-the-beat-of-his-own-ridiculous-drummer dept

So, months after clearing Hillary Clinton's slate by deciding she was stupid rather than malicious, James Comey has again gone rogue, declaring there's something worth investigating in emails recovered from a sleazy ex-politician's computer. (Thus subverting the norm of recovering emails from a sleazy, CURRENT politician's computer…)

The timing is, of course, suspect. The FBI really isn't supposed to be announcing investigations of presidential candidates this close to Election Day. As Marcy Wheeler points out, there are guidelines Comey appears to be violating.

Jamie Gorelick (who worked with Comey when she was in DOJ) and Larry Thompson (who worked with Comey when Comey was US Attorney and he was Deputy Attorney General, until Comey replaced him) wrote a scathing piece attacking Comey for violating the long-standing prohibition on doing anything in an investigation pertaining to a political candidate in the 60 days leading up to an election.

It's not the law, but it's something. And until Comey decided to merge Weinergate into Emailgate, this guidance has been followed:

Decades ago, the department decided that in the 60-day period before an election, the balance should be struck against even returning indictments involving individuals running for office, as well as against the disclosure of any investigative steps. The reasoning was that, however important it might be for Justice to do its job, and however important it might be for the public to know what Justice knows, because such allegations could not be adjudicated, such actions or disclosures risked undermining the political process. A memorandum reflecting this choice has been issued every four years by multiple attorneys general for a very long time, including in 2016.

It would be a bit much to claim Comey wants to see Trump in the White House. But he apparently has no qualms about violating internal DOJ gentlemen's agreements, which should raise questions -- as Wheeler notes -- about what other policies or guidance Comey considers optional.

The reason you can't put this down as a move meant to damage Clinton's campaign is because that narrative already got used up when Comey refused to recommend prosecution for actions most other government employees wouldn't have walked away from. Suffice it to say, the reaction to Comey's latest announcement depicts partisanship at its best/worst.

So of course the Republicans that had been claiming Comey had corruptly fixed the investigation for Hillary immediately started proclaiming his valor and Democrats that had been pointing confidently to his exoneration of Hillary immediately resumed their criticism of his highly unusual statements on this investigation. Make up your minds, people!

While certain voters sort out their love/hate relationship with James Comey, the next question about broken rules applies to the emails themselves. The FBI seized Anthony Weiner's laptop to search for evidence of alleged communications between Weiner and a 15-year-old. In the course of doing that, agents came across emails between Clinton aides and Huma Abedin, Weiner's estranged wife.

Apparently without knowing the content of these emails, Comey went ahead and decided to alert Congress to the new details of the investigation. Oddly, this happened before the FBI even had a warrant to search those emails -- though it received one over the weekend. Even with the warrant in hand, it's not entirely clear the agency has the right to do that under the Fourth Amendment. The laptop's search and seizure isn't at all related to the (supposedly closed) Hillary Clinton email investigation.

Orin Kerr examines the issues thoroughly at the Volokh Conspiracy. As he sees it, the FBI can't legally expand its investigation for several reasons. Court decisions have suppressed evidence in cases where searches have uncovered evidence of other criminal activity not related to the investigation at hand. These emails are clearly unrelated to the messages sent from Weiner that the FBI was looking for.

The FBI may try to avail itself of the "plain view" exception, but this claim would be dubious at best.

The plain view exception does not allow evidence to be seized outside a warrant unless it is “immediately apparent” upon viewing it that it is evidence of another crime. Just looking quickly at the new evidence, there needs to be probable cause that it is evidence of a second crime to justify its seizure, which would presumably be necessary to apply for the second warrant.

Assuming the FBI hadn't already taken a peek, all that was known about these emails was that they involved a top Clinton aide. There could be no determination at that point that they contained classified or sensitive material. The Fourth Amendment doesn't (or at least shouldn't [stupid courts]) allow communications to be searched first in hopes of justifying the search after coming across some probable cause. The FBI needed to establish that first and it's unclear how it would do it without actually seeing the content -- though the fact that a court granted the warrant raises some questions about why.

Unfortunately, case law is nowhere approaching "settled" on the limits of digital searches. "Plain view" in regards to digital files is much harder to pin down. Some decisions have made it clear the government can't seize devices and look through everything in hopes of finding evidence of other criminal activity. Fishing expeditions are discouraged, but not every court has felt compelled to suppress evidence gathered in this fashion.

However that all shakes out, one thing is clear: James Comey is running the FBI like it's a one-man shop. He's managed to anger other FBI officials with his autonomous decisions and declarations. Marcy Wheeler notes in her post that the DOJ has shown it can't control Comey, and Comey himself -- in his letter to Congress -- suggested that if he didn't come forward with this, someone inside his agency would have leaked the information. So, the DOJ can't control Comey. Comey can't (or won't) control his own people. And Comey will continue to do things his way, no matter what collateral damage he may cause.

Filed Under: 4th amendment, anthony weiner, doj, emails, fbi, hillary clinton, huma abedin, investigation, james comey, warrant

Judge Orders FBI To Turn Over Information On How Many People Around The World It Snagged With Its Playpen NIT

from the malware-whereabouts dept

This might be big, depending on how much of this information is passed on to the general public, rather than delivered ex parte or under seal. Joseph Cox of Vice/Motherboard was the first to snag this ruling [PDF] by a Washington district court judge ordering the FBI to turn over tons of info about the NIT it deployed in the Playpen child porn investigation.

As we're already aware, the NIT was deployed by the FBI in Virginia but obtained identifying information about Tor-cloaked site visitors not just all over this country, but all over the world. The motion to compel discovery asked for several details about the NIT and its deployment and most of them have been granted.

Here's the full list (with additional commentary):

1. All records related to the Government’s review and approval of Operation Pacifier.

The Court has taken this discovery request under advisement. An order is soon forthcoming.

2. Copies of any reports made to the National Center for Missing and Exploited Children (NCMEC) regarding child pornography posted on the Playpen web site.

Defendants’ motions are granted.

3. Copies of any notifications that were sent to victims by the Government for obtaining restitution related to images that were posted on, or distributed from, the Playpen web site.

Defendants’ motions are granted.

4. The number of new images and videos (i.e. content not previously identified by NCMEC) that was posted on the site between February 20, 2015 and March 5, 2015.

Defendants’ motions are granted.

(This information -- whether or not actually useful in suppression motions -- should at least provide some insight into how much additional child porn made its way to site visitors as a result of the FBI's decision to seize [and act as administrators of] the server, rather than shut it down. Information obtained in other court cases suggests the FBI not only acted as hosts during the NIT deployment, but actually made the site faster and more responsive.)

5. The names of all agents, contractors or other personnel who assisted with relocating, maintaining and operating Playpen while it was under Government control.

Defendants’ motions are granted.

6. Copies of all notes, emails, reports, postings, etc. related to the maintenance, administration and operation of Playpen between February 20, 2015 and March 5, 2015.

Defendants’ motions are granted.

(Again, this info could confirm whether or not the FBI improved the child porn site's performance during its two-week turn as administrators, as well as provide additional insight into how much child porn distribution was aided and abetted by the agency.)

7. Copies of all legal memoranda, emails and other documents related to the legality of the FBI’s operation of Playpen (and the distribution of child pornography by the Government), including requests for agency/departmental approvals of the undercover operation of Playpen and any communications with Main Justice or the Office of General Counsel at the FBI.

The Court has taken this discovery request under advisement. An order is soon forthcoming.

(This would be the government's legal rationale for running a child porn site rather than shutting it down. Chances are this will remain under seal and is probably FOIA-proof, as most legal guidance documents are.)

8. Copies of all correspondence, referrals and other records indicating whether the exploit used in the Playpen operation has been submitted by the FBI or any other agency to the White House’s Vulnerability Equities Process (VEP) and what, if any, decision was made by the VEP.

The Court has taken this discovery request under advisement. An order is soon forthcoming.

(Little is known about the government's actual handling of the VEP. On one hand, we have public statements which pay lip service to not screwing US companies by hoarding vulnerabilities. On the other hand, we have the exact opposite in practice.)

9. Copies of invoices and other documents for the hosting facility/facilities where the Government operated the Playpen server, the server from which the Government delivered the NIT malware and the server that NIT targets sent their identifying information back to, including documents revealing whether the Government informed the hosting provider(s) that child pornography would be stored in their facility or transmitted over their networks.

Defendants’ motions are granted. To the extent that the Playpen hosting provider was the Government, not a private party, it appears there may not be much discovery responsive to this request.

(There may be nothing here. Or there could be third party hosts involved who were never informed about their participation in the FBI's sting operation. If so, fun times ahead for the US government.)

10. The number of Playpen-related investigations that have been initiated but did not result in criminal charges, beyond the approximately 200 cases now pending across the country.

Defendants’ motions are granted.

(Another can of worms the FBI would probably like to remain closed. According to the government's own arguments in these cases, users would have connected to the site for a single purpose: to engage in criminal activity. A lack of charges would be a surprise and somewhat undermine the government's assertions about the criminal intent of visitors to the site.)

11. The total number of IP addresses and MAC IDs that were seized during the time the FBI was operating Playpen, over and above those related to these approximately 200 pending cases.

Defendants’ motions are granted.

12. The number of IP addresses and MAC IDs obtained during the investigation from foreign computers and the countries in which this data was obtained.

Defendants’ motions are granted.

(These are the potential goldmine. This will show how far-flung the FBI's net actually was, as well as provide more ammo for suppression motions predicated on Rule 41 jurisdictional limitations. The FBI is well aware it can't perform searches outside the jurisdiction covered by the warrant, but it chose to do so anyway. So far, its evidence has mostly held up, thanks to courts deciding suppression isn't the correct remedy, or crediting the FBI for unearned "good faith." The FBI and DOJ are pushing for changes to Rule 41 that eliminate the jurisdictional limits, so it's disingenuous for the agency to claim its agents acted in good faith when securing the warrant.)

This now becomes the Playpen case to watch, even if most of this information is likely to remain in the hands of defense lawyers only. Dismissal and suppression motions will contain references to the content of these documents, however, which will shed more light on the FBI's NIT deployment and its child porn site administration.

Filed Under: doj, eavesdropping, fbi, malware, nit, playpen, rule 41, warrants

AT&T's $85 Billion Time Warner Buy Could Be An Anti-Consumer Shit Show Of Monumental Proportions

from the synergies-ahoy dept

As fixed and wireless broadband growth crawls to a halt and cord cutting begins to hammer TV numbers, incumbent telecom giants have been trying to pivot into the media and advertising game with mixed results. Verizon so far has shelled out billions to acquire aging 90s internet brands Yahoo and AOL, believing this can somehow transform the stodgy duopolist into a sexy, sleeker Facebook and Google competitor. So far these efforts to woo Millennials have been arguably underwhelming and occassionally comical, highlighting how innovation and disruption is somewhat foreign to these companies' DNA.

AT&T has decided to follow a similar tack, over the weekend announcing a mammoth $85 billion deal to acquire Time Warner (not to be confused with Time Warner Cable) and its media properties (CNN, HBO). AT&T was quick to proclaim that the deal would be a "perfect match of two companies with complementary strengths," who can bring a "fresh approach to how the media and communications industry works for customers, content creators, distributors and advertisers." The deal comes not too long after AT&T decided to spend $79 billion to acquire DirecTV, adding notable debt for the already giant company.

AT&T's decision to announce the deal now signals that it believes, or has been directly told, that regulators (both the tail end of Wheeler's term and his replacement in the new year) would look kindly upon such a deal. But given AT&T's long, rich history of aggressive anti-consumer behavior (and just blatant lying to prop up past mergers), there's more than a few justified questions raised about AT&T growing larger.

This is, after all, a company that in the last four years alone has been fined for ripping off programs designed for low-income households, ripping off programs designed to aid the hearing impaired, actively aiding drug dealing directory assistance scammers, and making bills harder to understand to help crammers. It's the same company that fought viciously against net neutrality, and is busy using "zero rating" to begin giving its own content an unfair advantage in the market. Yes, what could possibly go wrong with letting AT&T grow immeasurably larger?

Letting one company control an ocean-sized portion of all progamming and the conduit to the home has always been controversial. And while regulators did set some conditions to Comcast's 2011 acquisition of NBC Universal, it was found that Comcast ignored many of those conditions, ultimately leading to regulators blocking its subsequent acquisition attempt of Time Warner Cable.

In this case, AT&T is making it clear that the acquisition is all about the company's upcoming launch of its DirecTV Now streaming video service:

"Both Mr. Stephenson of AT&T and Jeffrey L. Bewkes of Time Warner stressed that during nearly three months of deal negotiations, the idea driving the talks was that Time Warner could help AT&T build out its own video streaming service. That service, called DirecTV Now, is Mr. Stephenson’s response to the migration of consumers toward mobile and online video watching and away from traditional cable packages."

Owning that much content certainly makes licensing easier for AT&T. The problem, again, is that the current FCC has refused to seriously address zero rating (giving your own content a broadband cap exemption while still penalizing Netflix) as a potential anti-competitive weapon. AT&T, in response, has made it abundantly clear that zero rating will play a huge role in this upcoming service. Regulators could ban AT&T from using zero rating to favor Time Warner content, though history has shown enforcement of these promises is inconsistent.

And that's before you get to the spectre of AT&T almost certainly (based on past behavior) using its role as a broadcaster to hamstring the streaming services that hope to compete with it. Or AT&T's abysmal history on privacy issues, be that the use of stealth cookies to track user behavior without consent, or the company's attempts to charge users more money just to opt out of private data collection and sales. AT&T's also fighting tooth and nail against new FCC broadband privacy protections the agency is expected to vote on later this week.

In short, AT&T apparently believes that the best way to navigate a dramatically changing TV landscape that requires flexibility and innovation is to grow bigger and clumsier than ever.

The company has been losing broadband, TV, and postpaid phone subscribers the last few quarters. Executives apparently believe the best solution is to strike a series of massive traditional media deals (with valuations based on peak TV earnings and cash flow) just as the traditional TV sector prepares for a free fall. AT&T bought a satellite TV giant on the eve of the cord cutting revolution, and now aims to buy a traditional media giant just as the TV market begins truly entering an identity crisis. But there's absolutely no indication that any of these deals will make AT&T magically more relevant to Millennials, or that vertical integration between distributors and content producers is still a guaranteed route to success.

That doesn't mean AT&T won't engage in anti-competitive behavior to try and make it work. Once AT&T launches its new streaming service, the company could make it much harder than ever for competing streaming providers to license the programming necessary to compete with it. AT&T could also zero rate its own content, further penalizing streaming video providers trying to compete in the space. And again, that's before you get to AT&T's history on privacy or any other creative new efforts AT&T will cook up to use its significantly larger scale and broadband monopoly to unfair advantage.

This being election season, the Presidential hopefuls were quick to chime in (sort of). Hillary Clinton gave somewhat of a non-answer by saying that she "certainly thinks regulators should look at" the deal (as if regulators tasked to review a deal would do anything else). It was actually Donald Trump's camp that issued the clearest opposition to the deal:

"This oligopolistic realignment of the American media along ideological and corporate lines is destroying an American democracy that depends on a free flow of information and freedom of thought,” Peter Navarro, a senior economic adviser to Mr. Trump, said in a statement on Sunday.

Broken clocks, twice a day, etc. All told there's little to any indication that the deal would be good for consumers, AT&T competitors or small businesses. But there are also doubts that regulators under the (likely) Clinton administration would stop the deal, if her non-answer and the notable amount of telecom money headed in the Clinton camp's direction is any indication. Regardless of the regulatory response, history suggests it should at least be fun watching AT&T's lawyers, lobbyists, and armies of think tankers once again try to spit shine the company's latest attempt to become larger and more powerful than ever.

Filed Under: acquisition, antitrust, consumers, doj, fcc, merger
Companies: at&t, time warner