Biden, DOJ Say No More Targeting Journalists, But Aren't Doing Anything To Keep It From Happening Again

from the first-step-toward-doing-better-is-actually-doing-something dept

The tail end of the Bill Barr/Donald Trump DOJ has been marred (I mean… more so…) by a quick succession of reports detailing its targeting of journalists' communications in order to sniff out the source of leaks.

The Trump Administration was plagued by leaks and Trump suggested it would be cool if the FBI would go after some journalists. The FBI apparently also thought this was cool. And so the DOJ sent out subpoenas demanding information about phone calls and emails and pinned gag orders to them, keeping targeted journalists from being notified the government was trying to obtain these records.

The targets were journalists employed at the papers on the top of Trump's shit list: the New York Times and the Washington Post. (The DOJ also targeted a CNN journalist.) And, in a weird twist loaded with the same First Amendment concerns, the FBI tried to obtain records pertaining to readers of a USA Today article about the killing of two FBI agents during a child porn raid.

After the first couple of revelations, President Joe Biden said the DOJ would no longer target journalists.

When asked if Biden would prevent his Justice Department from seeking reporters’ phone records, Biden responded: “I won’t let that happen.”

Unfortunately for Biden, the DOJ's rules absolutely permit it to target journalists. It has done so for years and made quite the negative impression during the Obama years, assisting an administration nearly as interested in hunting down leakers and whistleblowers as Donald Trump's.

Biden's statement suggested his DOJ would do things differently, but the DOJ hadn't actually said anything at that point, and was, in fact, carrying on with some of the Trump DOJ's secretive targeting of journalists. As late as March of this year, the DOJ was still seeking New York Times' journalists' records while swearing the NYT's legal counsel to secrecy.

The DOJ finally stated it wouldn't target journalists a few days after Biden said he wouldn't allow it. The DOJ's spokesperson said the DOJ respected the First Amendment and the free press. But it's apparently a newfound respect, rather than a respect the DOJ has always held.

All well and good except that neither the DOJ nor President Joe Biden have done anything other than say the things that have happened for years will no longer be happening. There hasn't been much action. Margaret Sullivan of the Washington Post points out that all anyone's been given are assurances that will remain empty until someone in the administration is willing to do something about it.

In an opinion piece published over the weekend, Washington Post Publisher Fred Ryan argued that the revelations of recent weeks demonstrate that the Biden administration actually intensified the assault on First Amendment rights before backing down.

He described how, after The Post learned of subpoenas to obtain email information and home, cell and office telephone records of three Post reporters from 2017, the paper’s leadership demanded answers and a meeting with the attorney general — and have so far received none.

Getting some face time with the DOJ would be a good start. But the DOJ isn't going to ditch something it finds useful -- or, at least, convenient -- when engaging in leak investigations. It will continue to target journalists unless it makes it impossible to do so.

Sullivan says the DOJ's Inspector General needs to look into this and publish the findings. More essential, though, is establishing solid deterrents. The DOJ may say it will no longer target journalists, but without meaningful consequences in place for those who violate this promise, it will continue to happen. Suspensions, firings, demotions: these should all be options when prosecutors and investigators cross the line.

Biden and his DOJ need to be better at this than their predecessors. But not just a little better. The DOJ should make this standard operating procedure going forward. And it needs to lock these rules in, preventing future administrations from deciding Constitutional rights are just privileges that can be waived whenever investigators are trying to figure out where the federal government has sprung a leak.

Filed Under: 1st amendment, 4th amendment, doj, journalists, targeting

After Multiple Reports Of DOJ Targeting Journalists' Communications, The DOJ Finally Says It Will Stop Targeting Journalists

from the free-press-(temporarily)-removed-from-the-govt's-shitlist dept

The DOJ -- following President Biden's lead -- has declared targeting journalists' communications is officially off-limits. Biden's statement followed reports of two separate instances where his predecessor's DOJ tried to obtain email and phone records belonging to journalists working for the Washington Post and CNN.

More recently, it was revealed a leak investigation instigated by Trump's DOJ targeted New York Times' journalists. That one continued into 2021 under new Attorney General Merrick Garland. In that case, the government was seeking the source of leaks involving the FBI's investigation of Hillary Clinton's private email server but was unable to obtain anything after Google challenged the subpoena.

The subpoenas for the NYT journalists' records were withdrawn by the DOJ hours after that story broke, with Biden's press secretary claiming the Administration was not aware the DOJ and FBI were still pursuing this information.

As appropriate given the independence of the Justice Department in specific criminal cases, no one at the White House was aware of the gag order until Friday night [June 4]. While the White House does not intervene in criminal investigations, the issuing of subpoenas for the records of reporters in leak investigations is not consistent with the President's policy direction to the Department, and the Department of Justice has reconfirmed it will not be used moving forward.

This would align the DOJ with Biden's statement on targeting journalists. But there's another group of people in need of some protection from the DOJ's investigative methods: readers of news sites. Yet another DOJ investigation involving journalism was exposed late last week. In that one, the FBI targeted readers of USA Today reporting on a child porn raid that ended in the deaths of two FBI agents and the suspect they were seeking. Gannett News attempted to quash the subpoena, noting the FBI had apparently violated the DOJ's rules on targeted First Amendment activity.

That subpoena has now been officially withdrawn by the DOJ. And the FBI has admitted it was able to identify the suspect it was seeking by using other methods, which does nothing to explain why an agent working for the FBI's child exploitation task force thought it was a good idea to obtain information about readers of a story where a child porn suspect opened fire on agents (killing two of them) prior to being killed himself.

That last withdrawal accompanies the DOJ's first public statement on the subject. It appears this DOJ will be the first in a long, long time (or perhaps ever) to respect the First Amendment, rather than look for ways to work around it.

In a separate statement, Justice Department spokesman Anthony Coley said that “in a change to its longstanding practice,” the department “will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs.”

He added: “The department strongly values a free press, protecting First Amendment values, and is committed to taking all appropriate steps to ensure the independence of journalists."

What's left unsaid here is how the DOJ will define journalism and journalists. There are plenty of independent journalists who cultivate sources and report on events that involve ongoing federal investigations. Leakers will continue to leak and presumably -- given Biden's tour as VP for noted leak-hunter Barack Obama -- the government will still seek to identify and prosecute them.

But this is the first public statement made by a DOJ official that says something other than the DOJ will respect free speech rights to the extent its internal guidelines suggest it should. Historically, that range has been "barely" to "not at all." If the DOJ is serious about respecting these rights, it's obviously going to make it more difficult to hunt down leakers. But constitutional rights are rights, not things to be set aside whenever they inconvenience federal law enforcement agents. Hopefully, this pledge will last longer than the current administration.

Filed Under: 1st amendment, 4th amendment, doj, journalists, leaks, records, subpoena, whistleblowers

Supreme Court Says The Community Caretaking Exception Doesn't Apply To Warrantless Searches Of People's Homes

from the rolling-back-a-blown-call dept

The Supreme Court has been on a bit of roll lately. After years of making things worse for plaintiffs suing law enforcement officers over rights violations, the Supreme Court has begun reversing qualified immunity decisions finding in favor of the rights violators. It still has a lot of damage to undo from its decades of expansion of the qualified immunity doctrine but it's a start.

A new, very short decision [PDF] from the Supreme Court reverses another blown call by an appellate court and restores some Fourth Amendment protections that decision stripped away.

In March of last year, the First Circuit Court of Appeals decided to do something a little different: it extended the limits of the poorly defined "community caretaker" function to cover warrantless searches and seizures that involved someone's home. The decision it relied on -- Cady v. Dombrowski (1973) -- previously only covered vehicles already in law enforcement possession or on public roads.

In that case, a man's wife called for a welfare check on her husband. The previous night, her husband had asked her to "shoot him now and get it over with." She left and he stayed in the house with the gun. When she couldn't reach him by phone the next day, she asked the police to check in with him.

The police spoke to the man and expressed his wife's concerns. They then went to his house. He voluntarily departed via an ambulance to check in at the local hospital to see what help they could be in dealing with the mental breakdown he seemed to be experiencing. The officers took it upon themselves to enter the home and seize any guns they found. They did this despite the man (now hospitalized and posing no threat to anyone) expressly refusing to consent to this seizure.

Too bad, said the First Circuit. The home is now a car and "community caretaking" function excuses the lack of warrant or express permission to take personal property.

We hold today — as a matter of first impression in this circuit — that this measure of protection extends to police officers performing community caretaking functions on private premises (including homes). Based on this holding and on our other conclusions, we affirm the district court's entry of summary judgment for the defendants in this highly charged case.

Wrong, says the Supreme Court, in a four-page opinion written by Clarence Thomas (and joined by three concurrences). The First Circuit had no business extending the reach of the Cady decision into someone's home -- especially when it was clear there was no community caretaking to be done.

The First Circuit’s “community caretaking” rule... goes beyond anything this Court has recognized. The decision below assumed that respondents lacked a warrant or consent, and it expressly disclaimed the possibility that they were reacting to a crime. The court also declined to consider whether any recognized exigent circumstances were present because respondents had forfeited the point.

Nor did it find that respondents’ actions were akin to what a private citizen might have had authority to do if petitioner’s wife had approached a neighbor for assistance instead of the police.

This case isn't Cady but for houses. There were some crucial differences, the most important being who was in control of the property that was searched.

True, Cady also involved a warrantless search for a firearm. But the location of that search was an impounded vehicle—not a home—“‘a constitutional difference’” that the opinion repeatedly stressed.

And that decision even went so far as to inform law enforcement that they weren't exactly welcome to warrantless searches of cars either, even with the community caretaking function in play.

In fact, Cady expressly contrasted its treatment of a vehicle already under police control with a search of a car “parked adjacent to the dwelling place of the owner.”

How the First Circuit saw this and still decided the Supreme Court actually meant to allow cops to search homes and seize property without a warrant is something only the First can explain. It didn't do much explaining in its opinion. Perhaps it will do a bit more when it handles this case for the second time.

Filed Under: 4th amendment, community caretaker, supreme court, warrantless searches

Another Journalist Informed Trump DOJ Otained Their Phone And Email Records

from the you're-looking-that-the-wrong-end-of-the-link,-dumbasses dept

It certainly appears the new Attorney General is doing some house cleaning. A pretty steady drip of disclosures have made their way into the public sphere about the DOJ's activities while headed by Bill Barr and overseen by the Trump White House.

A couple of weeks ago it was disclosed that the DOJ had obtained three Washington Post journalists' phone records while investigating leaks related to Russian interference in the 2016 election. More recently, a case involving a Twitter account targeted by a Devin Nunes defamation lawsuit was unsealed, showing the DOJ attempted to force the social media service to turn over identifying info related to the NunesAlt account.

And now there's this: another journalist targeted by the DOJ -- again supposedly to root out the source of White House leaks.

The Justice Department informed CNN Pentagon correspondent Barbara Starr, in a May 13 letter, that prosecutors had obtained her phone and email records covering two months, between June 1, 2017 to July 31, 2017. The letter listed phone numbers for Starr's Pentagon extension, the CNN Pentagon booth phone number and her home and cell phones, as well as Starr's work and personal email accounts.

The DOJ is well aware this sort of thing looks bad. But that hasn't stopped it from targeting journalists with disturbing frequency. And it's not just a Trump/Barr thing. The Obama Administration did plenty of leak-hunting and it occasionally involved acquiring journalists' communications records. The DOJ slightly dialed back its enthusiasm for targeting journalists briefly after suffering a few PR black eyes, but the election of Trump brought a newfound enthusiasm for viewing journalists as enemies -- something both of Trump's Attorney Generals supported.

The frequency of these disclosures -- three in three weeks -- suggests the DOJ, under AG Merrick Garland, is taking a very close look at the actions of his predecessors and, hopefully, trying to undo some of the damage. At the very least, it looks like the application of some much-needed sunlight -- the sort of thing that's often useful in deterring future abuses.

The DOJ, however, is still using the same excuse for its worrying excursion across First Amendment lines. According to its spokespeople, there's really nothing wrong with using this investigatory tactic.

A Justice Department official confirmed that Starr was never the target of any investigation.

Oh, ok. It's fine that journalists' sources were targeted, not the journalists themselves. As if that doesn't place journalists in difficult positions and the government's apparent willingness to obtain communication records doesn't make it less likely journalists will be handed sensitive documents. I mean, that's obviously the end goal of actions like these, but it doesn't make them any more Constitutionally-sound or any less odious.

Fortunately, it appears the new DOJ boss isn't like the old bosses (Bill Barr, Jeff Sessions). This DOJ appears more willing to steer clear of potential controversy and less likely to view journalists as adversaries.

Anthony Coley, DOJ's director of public affairs and a senior advisor to Attorney General Merrick Garland, said in a statement to CNN that the decision to use the legal process to obtain Starr's communications was approved in 2020, during the Trump administration.

"Department leadership will soon meet with reporters to hear their concerns about recent notices and further convey Attorney General Garland's staunch support of and commitment to a free and independent press," Coley said.

The press hasn't seen much DOJ or Presidential support over the past four years, so this is a welcome improvement. Hopefully, it's sincere and not just a one-time patch job meant to unruffle feathers at major news corporations before proceeding with business as usual.

Filed Under: 1st amendment, 4th amendment, barbara starr, doj, email records, journalism, phone records, surveillance, william barr
Companies: cnn

Senator Wyden Tells The DOJ It Needs To Stop Going After Journalists During Leak Investigations

from the if-they-aren't-a-target,-don't-target-them dept

Earlier this month, it was revealed the DOJ -- while headed by Bill Barr and an extraordinarily leaky White House -- decided it would be cool and constitutional to demand journalists' phone and email records while supposedly investigating leaks pertaining to Trump's first impeachment.

The DOJ apparently did manage to get the phone records. For whatever reason, it never bothered to collect the email metadata, despite having obtained a court order to do so. Nearly four years after this occurred, the Washington Post journalists were finally notified about the government's interest in their communications.

The Justice Department's statement was less than satisfactory. It claimed that this sort of First Amendment-troubling activity was "rare" and that it followed all of its internal guidelines when targeting journalists' communications. It also claimed it was ok because the journalists weren't the target of the investigation. All the DOJ wanted were their sources.

That's not ok no matter what internal guidelines are followed. If the DOJ has a leak to investigate, it needs to confine itself to the end doing the leaking, not the recipients of the leaks. Just because it might be easier for investigators to work their way backwards from journalists' communications to identify the source of leaks doesn't make it acceptable. The ends don't justify the means -- not when the means wander across the constitutional lines.

Now the DOJ has (yet again) angered Senator Ron Wyden. Wyden has sent a letter [PDF] to Attorney General Merrick Garland, demanding he revamp the internal rules to make this sort of thing far less likely to reoccur. Wyden is also asking for full reports on any surveillance of journalists the DOJ engaged in over the last couple of years.

As Wyden points out, using subpoenas and court orders to sniff out journalists' sources may be less disruptive than subjecting them to the justice system, but the end result is the same breach of trust and Constitutional protections.

In years past, the government would often attempt to force journalists to reveal their sources, by dragging them into court, where many chose to spend time in jail for contempt of court, rather than violate their oath to keep their sources' identities hidden. Now that most Americans carry always-on, always-recording smartphones, the government prefers to go to telecommunications companies, hoping that records of calls and texts might reveal the source. While certainly more convenient for the government, using subpoenas and surveillance orders to pry into a journalist‘ communications history is no less invasive and destructive than forcing a journalist to reveal their source.

From there, Wyden goes on to note he's working to introduce stronger protections for journalists. And with that in mind, he asks the new Attorney General to start repairing some of the damage done by the previous administration.

[T]he Biden Administration has the opportunity to voluntarily leave behind the thuggish and Orwellian abuses of power of the last administration, and stand up as a world leader for press freedoms. [...] Simply put, the government should not collect journalists' communications records unless it's investigating them for a crime or as part of an investigation into foreign espionage, in which case it should get a warrant.

That's far more restrictive than the DOJ's current standards, which seem pretty low for something with the word "justice" in it that operates in a nation that has held itself out to be the standard-bearer for personal freedoms. Hopefully, AG Garland will decide it's time for the DOJ to respect the rights all government employees swear to uphold.

Filed Under: 1st amendment, 4th amendment, doj, intimidation, journalists, ron wyden

Defense Department Is Buying Domestic Internet Metadata From Data Brokers

from the bringing-the-war-back-home-via-bulk-purchases dept

Joseph Cox broke the news for Motherboard late last year: the US military was also making use of location data purchased from data brokers, joining a host of other federal agencies that seemed to feel buying from brokers was an acceptable alternative to respecting the Fourth Amendment.

Of particular interest to the Defense Department was location data generated by apps popular with the world's Muslims, including the Muslim Pro prayer app and Muslim Mingle, a Muslim-centric Tinder. The DoD didn't have much to say in its… um… defense at that time, obviously preferring everyone to assume the focus on Muslim-focused apps was indicative of its good and righteous work fighting terrorist organizations around the world.

Unfortunately, the data came from brokers who also collect plenty of location info from US located app users and there was no information provided by the government that showed the military made an effort to steer clear of acquiring this data.

More confirmation has arrived, via some half-answers, redactions, and "can we talk about this in private?" responses to Senator Ron Wyden's demand for more information from the Defense Department. Once again, it's Joseph Cox and Motherboard bringing us the latest:

The Pentagon is carrying out warrantless surveillance of Americans, according to a new letter written by Senator Ron Wyden and obtained by Motherboard.

Senator Wyden's office asked the Department of Defense (DoD), which includes various military and intelligence agencies such as the National Security Agency (NSA) and the Defense Intelligence Agency (DIA), for detailed information about its data purchasing practices after Motherboard revealed special forces were buying location data. The responses also touched on military or intelligence use of internet browsing and other types of data, and prompted Wyden to demand more answers specifically about warrantless spying on American citizens.

Unfortunately, further details have yet to be released. For the moment, Senator Wyden is indulging the Pentagon's demands for further secrecy. But his letter lets the public know some of what he knows -- even if the Defense Department has refused to make this information public.

"I write to urge you to release to the public information about the Department of Defense's (DoD) warrantless surveillance of Americans," the letter, addressed to Secretary of Defense Lloyd J. Austin III, reads.

The DoD may not have publicly admitted to this surveillance of Americans but Wyden is willing to make that disclosure on its behalf.

According to Wyden staffers, this refers to the DoD's bulk purchases of internet metadata that contain information about US persons' communications. Some of these are wholly domestic conversations. Some involve communications between Americans and people located in other countries. In either case, the DoD appears to be bypassing protections erected to prevent this sort of bulk surveillance. And while components of the Defense Department are in the intelligence business, their adversaries and targets are supposed to be foreigners. Incidental collection is one thing. Buying data in bulk and sifting through it with zero oversight is quite another.

Filed Under: 4th amendment, data brokers, defense department, dod, metadata, privacy

Court To Cops: Waiting Sixteen Months To Search A Seized Phone Violates The Fourth Amendment

from the turn-times-so-ridiculous-general-contractors-are-aghast dept

A recent case handled by an Illinois Appeals Court has some interesting things to say about cellphones and searches. It also contains some rather interesting assertions by law enforcement, which apparently didn't feel all that compelled to search a seized phone for more than a year after it was seized. (via FourthAmendment.com)

It's a drug and gun case, with the defendant facing two felony charges. Lamar Meakens was arrested following a traffic stop where contraband was discovered and his phone was seized. Here's how the court sums up that initial interaction in its opinion [PDF]:

Just after midnight on May 28, 2017, a Naperville police officer stopped defendant for speeding. Based on an odor in the car, the officer called for a canine search. The searching officers found eight $100 bills (several of which had identical serial numbers), a loaded .40-caliber handgun, and two unlabeled pill bottles, which in turn contained bags that held pills marked Xanax, a green leafy substance, and a white powder. While defendant was in the back of the squad car, he used the iPhone at issue to make a call.

The cops took everything they found, including the cellphone Meakens was using. The record is unclear as to why the cops took this phone but the court points out in a footnote that it should have been released to Meakens when Meakens was released from custody.

We note that a cell phone is not contraband; therefore, defendant’s cell phone should have been returned to him upon his initial release.

But that's not what happened. The PD instead decided to hold onto Meakens' phone for nearly sixteen months. It was only shortly before the trial began that officers finally sought a warrant and performed a search of the seized phone.

When the government was asked why it had taken so long to seek a warrant, it claimed that the delay was irrelevant. After all, taking a person's phone away for sixteen months hardly inconveniences them. Also Meakens was in jail where he wouldn't have access to it anyway.

The State, however, argued that an iPhone is, by its nature, easily replaceable. Therefore, the possessory-interest impact of seizing a suspect’s cell phone is necessarily less than, for instance, seizing a suspect’s luggage. The State also argued that defendant’s possessory interests were at a minimum while he was held in jail.

It's amazing that a government can still pretend the contents of a phone are analogous to the contents of someone's luggage, as the State implies here. But its explicit argument is even worse: it pretends it's more of an inconvenience to be without the contents of a suitcase than to be without a cellphone -- an item people use to communicate with others, engage in any number of essential services which can be accessed online, and otherwise revolve their lives around.

But that's the case the State made. And that's the arguments the trial court sided with.

The Appellate Court is far less sympathetic to the State's assertions.

Given the extraordinary delay in seeking a warrant and the State’s complete lack of diligence, we conclude that defendant’s possessory interest in the phone outweighed the interest the State had based on its probable cause to search the phone.

To begin with, the State had an obligation to seek a search warrant and perform a search in a timely manner. Waiting more than a year to do so causes more harm to the person deprived of the property since it allows the party doing the seizing to set the timetable for its return to whatever the State wants it to be, rather than what might benefit the person whose property has been taken. Shifting the dynamic completely in favor of law enforcement and its apparently expansive definition of "timely" violates rights.

The State’s diligence in seeking a search warrant also goes to the measure of its interest. Here, the State cannot claim any diligence. It waited until just before trial to obtain a warrant, about 15 months, and it did not explain its delay. We are aware of no delay longer than 13 months that a court has deemed reasonable.

The Court then cites the Supreme Court's Riley decision, which made it clear a phone was not just some featureless storage device but an often indispensable piece of equipment that's rarely separated from its owner. The State's assertion the seizure of a phone is, at best, a minor inconvenience vastly (and deliberately) underplays the role these devices play in people's lives.

Here, the State argues that, because cell phones in general are easily replaced, the seizure of a smartphone does not place a high burden on the person from whom it is taken. That is not a safe assumption. To be sure, some of the personal data accessed from a smartphone may be in “cloud” storage—“stored on remote servers rather than on the device itself.” Riley, 573 U.S. at 397. As noted in Riley, “users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference.” Riley, 573 U.S. at 397. However, if a smartphone is seized, only the data in the cloud is potentially accessible to the user and then not always conveniently. For a typical person, only the seizure of a personal vehicle is likely to cause equal or greater disruption.

Nor are they easily replaced for other reasons. As the court notes, other than vehicles, cellphones might be the most expensive items people own.

The Appellate Court also rejects the assertion that being in jail eliminates someone's possessory interest in a seized phone. A phone is still a powerful communication tool, whether or not it can physically be accessed by its owner. Seizing this terminates lines of communication that might otherwise have remained open, even for incarcerated people.

A smartphone carries with it a history of a person’s communications. Therefore, if a detainee can give another access to his or her smartphone, that person can serve much more effectively as the detainee’s agent than would be possible if the phone were seized, thus limiting the disruptive effect of the detention. By contrast, a person released on bond will likely be inconvenienced but generally not be rendered incommunicado. It is thus possible that the seizure of a smartphone is more disruptive to a pretrial detainee than to a person who has been released. We thus cannot dismiss defendant’s possessory interest as inherently minimized by his jailing.

And the Court won't allow the government to reverse-engineer a justification for holding onto the phone for nearly sixteen months.

The State notes that, at defendant’s trial, its witness testified that suspects found with contraband drugs and weapons often use cell phones to photograph the contraband. The State argues, “While [defendant’s] possession of [the] cell phone would ordinarily have no evidentiary value apart from the contents, in this circumstance, possession of a cell phone, and its later discovered contents, corroborated [the inference that] Defendant knowingly possessed contraband.”

This rule, applied to the circumstances here, does not favor the State. The State’s own argument shows why this is so. It was only the “later discovered contents” that gave the phone evidentiary value. If the police had discovered within days of defendant’s arrest that the phone contained only innocuous texts with defendant’s family and cat pictures, then, by the State’s own argument, the phone would have lacked evidentiary value. That discovery would thus remove justification for the phone’s continued seizure. This appears to be an instance of the State attempting to justify the seizure by its fruits. Such arguments are attractive but mistaken; the exclusionary rule would be meaningless if it only excluded the results of fruitless searches.

There goes the search. And there goes the conviction. A new trial awaits and the government will have to do without the evidence it wanted so badly it could barely be bothered to search for it.

Filed Under: 4th amendment, delay, illinois, lamar meakens, mobile phones, naperville, searches, warrants

Trump DOJ Investigated Internal Leaks By Obtaining Journalists' Phone Records

from the that's-not-how-this-is-supposed-to-be-done dept

Donald Trump liked to use the "Deep State" as a rhetorical punching bag. Whenever he stuck his foot in his mouth or found himself under investigation for abusing his powers, he claimed the "Deep State" just couldn't handle having such a strong truth-teller in the Oval Office. But he apparently liked the "Deep State" enough to allow it to go after his personal enemies, even as he portrayed himself as a warrior against the excesses of federal power.

Trump's primary enemy was the press. According to Trump, there was also a massive media conspiracy determined to oust him from power -- one that was headed by "failing" mass media figureheads like the New York Times and the Washington Post. The latter was often conflated with Amazon -- the apparent enemy of the United States Postal Service (until the USPS became an enemy by delivering mail-in votes). This wasn't just Twitter posturing. Apparently, Trump (and the agencies under his control) believed the newspaper was a threat the government should neutralize by mobilizing the "Deep State" powers he repeatedly criticized.

Documents obtained by the Washington Post show the DOJ directly targeting journalists' phone records in an apparent attempt to shield Trump from accusations of being BFFs with a foreign government's officials during its attempt to sway an American election.

The Trump Justice Department secretly obtained Washington Post journalists’ phone records and tried to obtain their email records over reporting they did in the early months of the Trump administration on Russia’s role in the 2016 election, according to government letters and officials.

In three separate letters dated May 3 and addressed to Post reporters Ellen Nakashima and Greg Miller, and former Post reporter Adam Entous, the Justice Department wrote they were “hereby notified that pursuant to legal process the United States Department of Justice received toll records associated with the following telephone numbers for the period from April 15, 2017 to July 31, 2017.” The letters listed work, home or cellphone numbers covering that three-and-a-half-month period.

The DOJ has rules for targeting journalists. It generally agrees that it shouldn't, but a lot of times it actually believes it should, despite the First Amendment implications. Journalists and their sources are granted a whole lot of Constitutional protection but sometimes the federal government prefers to serve its own interests. Sniffing out leakers and whistleblowers is one of those interests the government tends to elevate above Constitutional concerns.

Now that it's being called out for its unconstitutional bullshit, the DOJ is getting pretty defensive about its meddling in First Amendment affairs. According to the DOJ, this incursion was a serious thing it would only do when it's super-serious about something.

"While rare, the Department follows the established procedures within its media guidelines policy when seeking legal process to obtain telephone toll records and non-content email records from media members as part of a criminal investigation into unauthorized disclosure of classified information,” said Marc Raimondi, a spokesman for the Justice Department. “The targets of these investigations are not the news media recipients but rather those with access to the national defense information who provided it to the media and thus failed to protect it as lawfully required.”

Well, if it's an internal investigation, try to keep it internal. Nothing really justifies going after reporters because it's easier or more efficient than targeting government employees who might be well-trained in subterfuge. If an investigation can't be closed without using the First Amendment as a doormat, perhaps the investigation should be abandoned. There are more important things for the DOJ to do than seek out people who turned over information to journalists. There are plenty of people willing to turn things over to foreign adversaries and maybe the DOJ should consider limiting itself to investigating leaks that harm more than a president's reputation.

Filed Under: 1st amendment, 4th amendment, adam entous, doj, donald trump, ellen nakashima, greg miller, intimidation, journalism, surveillance
Companies: washington post

Wyden-Backed Bill Would Make It Illegal For Government To Obtain Location Data Without A Warrant

from the broken-and-profitable dept

We've covered for a while how consumer location data is consistently abused by telecom providers, app makers, stalkers, debt collectors, people pretending to be law enforcement, and pretty much any idiot with a nickel and a dream.

Of course that also extends to government agencies like the IRS, CBP, and ICE, which have increasingly been buying access to your daily location habits so they can skirt around pesky warrants. The government still needs a warrant if it targets individuals, but nothing stops the government from hoovering up vast swaths of movement data en masse. Until now.

A new bill backed by Senators Ron Wyden and Rand Paul, and Reps. Jerry Nadler and Zoe Lofgren, attempts to put this loophole to bed permanently. Bluntly dubbed the Fourth Amendment Is Not For Sale Act (see: summary or full text), the law would ban law enforcement agencies from buying data from controversial facial recognition firm Clearview AI, as well as force agencies to obtain a warrant before sourcing location data from brokers. In a statement, Wyden said the bill would close loopholes in both the Electronic Communications Privacy Act and the Foreign Intelligence Surveillance Act that allows governments to buy consumer location data without a warrant:

"Doing business online doesn’t amount to giving the government permission to track your every movement or rifle through the most personal details of your life,” Wyden said. “There’s no reason information scavenged by data brokers should be treated differently than the same data held by your phone company or email provider. This bill closes that legal loophole and ensures that the government can’t use its credit card to end-run the Fourth Amendment."

In other words, government agencies will need to obtain a court order to gather information from third party data brokers instead of just buying it like a private company. The law comes on the heels of a steady parade of reporting showcasing widespread abuse of consumer data by numerous government agencies:

"In February last year, The Wall Street Journal reported that a company called Venntel was selling location data harvested from apps to Immigration and Customs Enforcement and Border Protection. Motherboard then found more sales to CBP, and reported on which specific apps provide data to Venntel. Motherboard also found how multiple software development kits (SDKs)—the bundles of code that collect location data—gathered information from apps marketed towards Muslims. This included Predicio, which was connected to Venntel’s data supply chain. Google banned Predicio from the Play Store after Motherboard's reporting. Google and Apple also banned another SDK called X-Mode from its app stores after one of Motherboard’s investigations."

While the bill has the support of a bipartisan coalition of lawmakers and many consumer and digital activism groups, getting the proposal through Congress will, of course, be a steep uphill climb. When you have a large coalition of powerful cross-industry lobbyists and numerous government agencies all happily crowded around a very broken trough, any incentive for genuine reform remains, well, muted at best.

Filed Under: 4th amendment, buying data, data, data brokers, government, jerry nadler, rand paul, ron wyden, zoe lofgren

Report Shows ICE Is Demanding Subscriber Info It Has No Legal Right To With Self-Issued Subpoenas

from the snatch-it-baby-coz-I-can dept

Just because your service provider is willing to notify you of the government's (perhaps unexpected) interest in all your digital belongings doesn't mean there's someone standing between you and the government's flimsy piece of administrative paper.

A recent report by the Los Angeles Times -- based on notifications from service providers about government demands for data -- shows there's not much that can stop the government from obtaining a bunch of info with almost zero judicial oversight. Email notifications from Google shared with journalists show just how powerless end users are when confronted with government demands for data. Sure, notification is nice, but it's not all that helpful.

The government has almost unlimited power to make requests for data. The people they serve, however, are subject to demands that cannot possibly be met.

In one email The Times reviewed, Google notified the recipient that the company received a request from the Department of Homeland Security to turn over information related to their Google account. (The recipient shared the email on the condition of anonymity due to concern about immigration enforcement). That account may be attached to Gmail, YouTube, Google Photos, Google Pay, Google Calendar and other services and apps.

The email, sent from Google’s Legal Investigations Support team, notified the recipient that Google may hand over personal information to DHS unless it receives within seven days a copy of a court-stamped motion to quash the request.

The government -- in this case, ICE -- prints out an administrative subpoena, something that doesn't require judicial approval to send out to third parties storing user data. You, however, need to run to court to block it. And you need to do it in less than a week. The government says "give." And citizens are expected to find representation or just make the most of their Google searches for "quash" in less than seven days or their service providers will feel "compelled" to hand over all kinds of information to government employees engaging in self-approved fishing expeditions.

And, as if this barrier to due process entry wasn't enough, notification from service providers generally doesn't include handing over the underlying document. People are expected to approach federal courts with almost zero information in hopes of denying the government its request for information. And it's a lot of information -- at least in the case viewed by the LA Times.

The email from Google did not include a copy of the legal request. Upon requesting it, the recipient learned it was an administrative subpoena from the U.S. Immigrations and Customs Enforcement agency. ICE was looking for the names, email addresses, phone numbers, IP addresses, street addresses, length of service such as start date, and means of sources of payment linked in any way to the Google account.

Where's my bulwark against encroaching government interests, you might ask? The answer will not surprise you. It's mainly you with the occasional assist from service providers. To be fair, some service providers are better than others at rebuffing data demands that arrive without judicial approval. But, for the most part, users are still on their own. According to its own transparency reports, Google hands over data 83% of the time. Facebook does it 88% of the time. Twitter is a relative rebel, handing over data at only a 59% clip.

If most of these requests were warrants and court orders, great. If not, there's still a lot of work that needs to be done. On the relatively brighter side, some users are at least being notified the government is coming for their bits and bytes.

That's where administrative subpoenas act as their own form of restraint on government overreach. To obtain a gag order that prevents notification of targeted users, government agencies generally must get a court order. Using their own in-house paperwork means they can't prevent service providers from notifying users of the government's interest. That doesn't mean agencies won't add bullshit boilerplate to subpoenas that implies it would be illegal to notify end users. They still will. It just means they can't do anything about it when tech companies let end users in on the government's attempted secrets.

And they can't do what ICE did here. ICE demanded a wealth of information with its administrative subpoena. These subpoenas can only be used to request basic subscriber information. The one seen by the LA Times goes far beyond those limits, requesting Google hand over emails addresses, names, phone numbers, and financial info.

Hopefully Google only turned over what ICE could legally obtain with its flimsy paperwork, if it decided it was obligated to turn over anything at all. But this shows what the government will try to do in the perceived absence of pushback. It knows no end users are capable of securing a court order quashing these subpoenas in seven days. And it knows it can't request the information it's requesting. But it will do it anyway because the odds are still in its favor and bypassing the judicial branch means no one's going to benchslap it for breaking the rules or deny its requests as overbroad.

Filed Under: 4th amendment, administrative subpoenas, ice, privacy, subpoenas
Companies: google