Confirmed: DOJ Obtained Gag Order To Keep Reason From Informing Affected Commenters Or Discussing Subpoena

from the we'll-teach-you-not-to-comply-with-our-voluntary-stipulations dept

A DOJ subpoena leaked to Ken "Popehat" White showed the government was more than willing to stomp all over free speech to "protect" unthreatened federal judges. The order targeted comments at Reason.com that -- while inflammatory and ugly -- were decidedly not "true threats." Even if one was inclined to believe Reason commenters were going to hunt down the judge who presided over the Dread Pirate Roberts trial and use bullets/woodchippers to make her "pay" for her heavy-handed sentence, there was no non-ridiculous way to perceive someone saying "there's a special place in hell" for Judge Katherine Forrest as somehow being a "true threat."

While White (and many others) commented on the subpoena, Reason itself remained quiet on the matter, outside of a short post asking commenters to refrain from commenting at Reason on the "subject matter" of Popehat's post. About 10 days later, White speculated that there could be a gag order in place, citing a couple of anonymous tipsters, as well as his own conclusions drawn from the available evidence.

The existence of a gag order would be an active effort on the part of the government to chill speech at Reason, preventing it from discussing the subpoena it had received as well as encouraging it to extend this chilling effect to its commenters -- which it did.

No more speculation is needed. Reason did indeed receive a gag order related to the DOJ's subpoena.

For the past two weeks, Reason, a magazine dedicated to "Free Minds and Free Markets," has been barred by an order from the U.S. District Court for the Southern District of New York from speaking publicly about a grand jury subpoena that court sent to Reason.com.

That gag order has now been lifted. Reason's attorney discussed the matter with the Attorney General's office, pointing out the obvious fact that the subpoena and the comments it targeted were public knowledge, thanks to Popehat's post.

As ridiculous as the subpoena and the circumstances surrounding it were, Reason still felt compelled to maintain silence while the gag order was in effect. Reason's Nick Gillespie and Matt Welch note that the subpoena originally appeared without an accompanying gag order. Instead, it only contained a request that the contents of the order not be shared with anyone.

The Government hereby requests that you voluntarily refrain from disclosing the existence of the subpoena to any third party. While you are under no obligation to comply with our request, we are requesting you not to make any disclosure in order to preserve the con?dentiality of the investigation and because disclosure of the existence of this investigation might interfere with and impede the investigation.

Moreover, if you intend to disclose the existence of this subpoena to a third party, please let me know before making any such disclosure.

After a discussion with the Assistant US Attorney General, Reason notified the commenters affected, thus allowing them to retain counsel if they wished to assert their First Amendment right to anonymity.

At about 10:30 am ET on Thursday, June 4, our attorney Gayle Sproul (of Levine, Sullivan, Koch, & Schulz) called Velamoor to discuss the subpoena. The call did not go well. Sproul asked [AUSA Niketh] Velamoor to consider scaling back the scope of the subpoena by omitting the more benign commenters. Velamoor said simply, "No." Then Sproul informed him that we would be notifying our commenters about the subpoena to give them the chance to defend their rights to remain anonymous, and that we would not comply with the subpoena as it related to any commenters who moved to quash the subpoena before our compliance deadline. Sproul explained to him that there is case law firmly establishing that these commenters have the right to speak anonymously, and that we would withhold the information of anyone fighting the subpoena. Velamoor disputed that any such free speech rights exist. He asked that we delay notifying the commenters so he could get a court order prohibiting us from disclosing the subpoena to them. We refused. Sproul pointed out that we were perfectly within our rights to share the subpoena given the law and the wording of his own letter. Velamoor then suggested that Reason was "coming close" to interfering with the grand jury investigation.

After this call, Reason notified the commenters. Six hours later, the gag order arrived, accompanied by an email and another phone call that saw Velamoor follow up his inability to recognize free speech protections with bogus accusations of criminal behavior.

Having already suggested that Reason might have interfered with a grand jury investigation, Velamoor contacted Sproul on the afternoon of Friday, June 5, in response to a letter from her explaining the commenters' constitutional rights and laying out the timeline of Reason's notification to them. Velamoor told her that he now had "preliminary information" suggesting that Reason was in violation of the court order. Sproul said we were not and asked for further information. Velamoor refused to give any specifics, saying simply that he was "looking into it further."

So as of this point in the saga, Reason had been subpoenaed, we had been vaguely—and falsely—accused by a United States Attorney's office of actions verging on obstruction of justice and contempt of court, and we were now told that we were being investigated further.

The accusations weren't the only vague part of this debacle. The gag order itself is straight boilerplate, which suggests the DOJ hasn't dug very deeply into the situation it's issuing court orders for. The opening paragraph is nothing more than a list of possible reasons for obtaining a gag order, none of which fit this specific situation.

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

Not a single one of these potential scenarios fits "overzealous investigation of normal internet comment thread hyperbole," but then, of course, no subpoena/gag order boilerplate ever would. Combined with the gag order, this subpoena is nothing more than government bullying. Unfortunately, it's a grand jury subpoena, and grand juries aren't exactly known for their thoughtful decisions or balanced presentations of evidence.

As the Reason writers point out, the site's comment thread is often a profane and highly-offensive battleground:

Reason's unmoderated comment space is rare among comparable publications and has, over the years, developed into a forum that is by turns exciting, intellectually advanced, outlandish, cringe-inducing, and more foul-mouthed than any locker room this side of the Crab Nebula. It is something to be celebrated as a voluntary community that can be engaged or ignored as the spirit moves you (we say that as writers whose work and physical shortcomings rarely escape unscathed from any thread).

As ugly as it is, it's free speech, it's protected and it's to be celebrated, rather than chilled into a pale shadow of its former self. When the government wades into comment threads armed with subpoenas, gag orders and a willingness to deliberately misread the sort of hyperbolic "discussion" native to the internet, it does harm to the First Amendment it's supposed to be protecting.

To live in a world where every stray, overheated Internet comment—however trollish and stupid it may be—can be interpreted as an actionable threat to be investigated by a federal grand jury is to live in a world where the government is telling the public and media to just shut up already.

Normally, I would say something like, "One hopes this will be tossed as soon as a judge reads the complaint," but it's a grand jury handling this, so those deciding whether or not probable cause exists to hand out indictments likely won't have the legal background nor the inclination to go against the prosecutor. Instead, they'll be given a narrative by the prosecutor and a list of recommended charges. Once those charged face a judge, they may find the indictments tossed, but that's a long, dark road to travel just for talking about bullets, woodchippers and hell's special places in a comment thread.

Filed Under: commenters, doj, gag order, niketh velamoor, reason, subpoena
Companies: reason

Evidence Suggests DOJ Got A Gag Order Silencing Reason Over Its Bogus Subpoena

from the gag-order-problem dept

A week and a half ago, we wrote about a story from Ken "Popehat" White revealing a highly questionable subpoena from the DOJ sent to the Libertarian website Reason.com, concerning some silly comments made by users there. The comments were talking about killing the judge who was presiding over the Ross Ulbricht/Silk Road trial, but were the usual comment nonsense that no one takes seriously. Except... the DOJ sometimes gets a little overzealous whenever comments even obliquely mention killing judges. As we mentioned, a few years ago, we were contacted by the US Marshals service under similar circumstances -- but never received a subpoena. When we told them that we wouldn't be removing the comment, they said they understood and we never heard anything else.

With Reason, things appear to have gone a lot farther since there was a subpoena. But, now White is raising a further issue: did the DOJ also get a gag order on the subpoena preventing Reason from speaking about it. He quotes two anonymous sources while admitting that's not particularly trustworthy. Instead, let's focus on the other evidence which is fairly compelling. At the top of the list: when White called the US Attorney in charge of the investigation, he suggested there was a gag order:

First, AUSA Velamoor told me during our call on June 5, 2015 that he "believed" there was a gag order. I was skeptical at the time because it doesn't make sense to issue a subpoena to a libertarian news organization before you have the gag order in hand....

Second, in thinking about the call with AUSA Velamoor, I remember that he asked me when someone gave me the subpoena. In retrospect, that inquiry makes sense if he obtained a gag order after issuing the subpoena, such that the timing of the disclosure was legally significant.

At the very least, this suggests that the DOJ had thought about a gag order, whether or not it actually got it. But that leads us to the second, rather compelling bit of evidence. Reason's absolute silence on this:

Third, Reason has now gone ten days without commenting on the story. This story — the federal government using grand jury subpoenas to uncover anonymous commenters — is squarely in Reason's wheelhouse, and would normally provoke justifiable outrage from them. A slight delay in commenting was consistent with them waiting until their lawyers figured out what was going on; this prolonged silence strongly suggests compulsion.

In fact, it actually goes a step further. Reason didn't totally go without comment. It actually posted the following message to its site:

Please refrain from any discussion of the subject of the article at Popehat.com and its contents on our site.

Thanks.

Once again, that would tilt the scales in favor of a gag order.

And, as White notes, if there is a gag order, that's insane and it's quite likely that Reason is challenging it in court -- though it can't talk about it. Yet.

Unless the government has evidence we don't know about — and there's reason to doubt that — it is shocking and outrageous that the U.S. Attorney's Office sought a gag order and continues to enforce it.

Think about it. This is an order telling an American publication that writes about freedom and abuse of government power that it can't talk about an abuse of government power. It is classic prior restraint, which is one of the most disfavored forms of censorship in American law.

As White further notes, there are very, very few cases in which such a gag order is allowed, and it's very, very difficult to believe that any of those apply to a situation with some angry commenters on a website.

And... to make matters even more stupid, this gag order is particularly ridiculous in light of the fact that Popehat has already written about the story and it's been covered by tons of other media outlets as well.

The government did not merely seek an order gagging a magazine about a subpoena designed to pierce the anonymity of people commenting about a controversial case on a political website. The government has, apparently, continued to insist that the gag order be maintained even after the existence and content of the subpoena has been very widely publicized. What conceivable justification can there be now to prohibit Reason.com from discussing the subpoena, the gag order, and their significance? At this point, the gag order on Reason doesn't prevent the commenters from learning anything. The only thing it prevents is Reason discussing, and criticizing, and questioning the government's decision to subpoena commenters and gag them.

As White rightly notes, this appears to be a frightening abuse of power, now being used to restrict further discussion of an initial abuse of power. Both abuses deserve widespread scrutiny.

Filed Under: comments, doj, gag order, judge, reason, silk road, subpoena
Companies: reason

ESPN & NFL Network Still Pretending Twitter Doesn't Exist During NFL Draft

from the on-the-clock dept

If you follow technology news long enough and you'll be imbued with a sense of wonder at how quickly most things technology-related progress. Social media rollouts blaze ahead and become dominant quickly. The specs inside our machines continue to balloon. Brand new tech comes out and is adopted by the younger generations with an ease that seems downright impossible. Companies, because they have to, embrace the speed of new technology as well. Everything is faster, more content-rich. It seems the early adopters these days are big corporations eager to gain an edge through the technology the public already is or soon will be using.

Which brings me to this question: have ya'll heard of Twitter? Yes, yes, I figured that you have, but I'd like to know whether any of you Tweeps out there happen to know anybody at the National Football League? Because they seem to think that Twitter is a thing that can be controlled when it comes to the NFL draft. It's been a couple of years since I first laughed at the NFL for forcing ESPN and the NFL Network, two of its broadcasting partners, to agree not to tweet draft picks before they were announced on television. Two years later, a lifetime in technological progress terms, and the NFL is stilll doing this, apparently.

ESPN and NFL Network both have rights to televise the NFL draft, and, as they have in the past, this year they will show the good and just Roger Goodell that they value the product he’s bestowed upon them by not allowing their reporters to tweet picks before the commissioner announces them at the podium. That NFL Network agrees to this makes sense. (It has no choice, since it’s a glorified PR channel for the league.) What’s ESPN’s excuse?

Well, some of us argue that ESPN has nothing to do with news and is instead a self-marketing institution built on the leagues for which it broadcasts. To that end, the "journalists" are actually marketing agents, doing the bidding of the ultimate customer, the leagues, including the NFL. Taken at face value, the agreement for ESPN reporters to refuse to tweet out much-sought information they've obtained is an abdication of any journalistic ethics they might pretend to have.

But the larger question is: who does the NFL think they're fooling? After all, this scheme would work wonders to control information about draft picks...if Twitter users only followed NFL Network and ESPN employees. That isn't how this works as a sports fan, of course, meaning that anyone who wants to get quicker information on the draft will certainly have it. That renders this whole exercise pretty damned meaningless for the NFL.

Filed Under: gag order, journalism, nfl draft, secrecy
Companies: espn, nfl, twitter

Magistrate Judge Shoots Down Government's Attempt To Gag Yahoo Indefinitely Over Grand Jury Subpoenas

from the checked-and-balanced dept

California judge Paul Grewal continues to hold up his end of the "Magistrates' Revolt." Grewal was the magistrate who shot down the government's open-ended request to grab every email in a person's Gmail account and sort through them at its leisure. He was actually the second magistrate to shoot down this request. The government went "judge shopping" after Judge John Facciola told it the scope of the request needed to be narrowed considerably before he would even think about granting it. The government decided it still wanted all the email and traveled across the country to see Judge Grewal… who told them to GTFO without even giving the feds the option to rewrite the request.

Grewal is once again siding with the public and acting as a check against government overreach.

Law enforcement cannot indefinitely forbid Yahoo Inc from revealing a grand jury subpoena that seeks subscriber account information, a U.S. judge ruled, because doing so would violate the company’s free speech rights.

U.S. Magistrate Judge Paul Grewal in San Jose, California on Thursday wrote that the government’s request would prohibit Yahoo from disclosing the subpoena, even years after the grand jury concluded its probe. The court order does not disclose the target of the federal investigation.

“In an era of increasing public demand for transparency about the extent of government demands for data from providers like Yahoo!, this cannot stand,” Grewal wrote.

Yahoo has had its fill of government secrecy. It spent a long time fighting both broad subscriber data requests from the NSA and their accompanying 25-year gag orders. Its ardent defense of its subscribers against broad government requests would still be under seal, but thanks to recently declassified documents, it has been able to address the subject publicly -- nearly 18 years before the gag order would have "aged off."

The DOJ again wants to maintain its subpoena secrecy, hoping to keep internet platforms like Yahoo, Twitter and Facebook from discussing grand jury subpoenas until… well, it's not entirely clear there's really an ending date.

Instead of asking that Yahoo be gagged for 60 or 90 days, the government asked that the company be gagged until further order of the court.

Grewal's rejection points out that the government feels entitled to indefinite gag orders, but has yet to offer any reasons why it should have its wishes granted.

The government did not demonstrate why such an indefinite request was necessary, Grewal wrote.

Judge Grewal has sent the government back to perform a rewrite -- either providing justification for its ridiculous demands, or to request something less illogical, like a finite gag order. The government has availed itself of many judicial rubber stamps over the years, but it looks like it's still running into resistance on both coasts: Paul Grewal in California and John Facciola in Washington D.C.

The ACLU has also been engaged in this fight against government secrecy since early last year, bringing more attention and legal expertise to an issue that hasn't achieved the terminal velocity of mainstream media attention. It's a bit more trench warfare, pitting magistrate judges and amicus briefs against the DOJ's assumption that it should have whatever it asks for, because terrorism, drugs, grand juries or whatever.

Filed Under: gag order, grand jury, indefinite gag order, john facciola, law enforcement, magistrate judge, magistrates revolt, paul grewal, subpoenas
Companies: yahoo

Feds Gagged Google Over Wikileaks Warrants Because They Were 'Upset By The Backlash' To Similar Twitter Warrants

from the that's-not-how-it-works dept

Earlier this week, we wrote about how the feds got a warrant demanding all email and other information about three Wikileaks-associated reporters. While the warrants issued in 2012, Wikileaks only found out about it a few weeks ago when Google told them, saying that an earlier gag order had been partially lifted. Wikileaks lashed out at Google for not letting them know earlier. However, in response, Google has noted that it fought the request and that it was gagged from saying anything until now.

Google says it challenged the secrecy from the beginning and was able to alert the customers only after the gag orders on those warrants were partly lifted, said Gidari, a partner at Perkins Coie.

“From January 2011 to the present, Google has continued to fight to lift the gag orders on any legal process it has received on WikiLeaks,” he said, adding that the firm’s policy is to challenge all gag orders that have indefinite time periods.

But, much more interesting was a separate point made by the lawyer, Albert Gidari, over why the feds demanded the gag order:

According to Gidari, whose firm has represented both firms, Google’s delay was not the result of foot-dragging but of opposition from prosecutors who were upset by the backlash that followed the disclosure of their court orders to Twitter.

[....]

“The U.S. attorney’s office thought the notice and the resulting publicity was a disaster for them,” Gidari said. “They were very upset” about the prosecutor’s name and phone number being disclosed, he said. “They went through the roof.”

Gidari also claims that "Google litigated up and down through the courts trying to get the orders modified so that notice could be given."

If you don't recall, the feds attempt to get information from Twitter made headlines back in 2011 for trying to get access to Icelandic politician (and Wikileaks supporter) Birgitta Jonsdottir's account.

If it's true that this was truly the reason for the gag order, that is equal parts ridiculous, pathetic and dangerous. There are legitimate reasons for limited gag orders in specific cases at specific times. But a general, unending, broad gag order "because we don't like the backlash" is not one of them. At all. But that's what you get when there's no real oversight or pushback to the surveillance state.

Filed Under: backlash, free speech, gag order, surveillance, warrants
Companies: google, twitter, wikileaks

Boston City Employees Barred From Hating On Olympics; Mayor Says Free Speech Still Intact

from the bwah? dept

The Olympics: an every other year experiment in curtailing the rights of its hosts while draining those hosts of as much money as possible. It's apparently gotten so bad that essentially nobody actually wants to host the olympic games. Those still relentlessly putting in bids to bring on this multi-nation quagmire of garbage probably don't care all that much that the IOC and its smaller sub-parts are money-grubbing, number-trademarking, viewer-hating megalomaniacs that quite possibly lack what we refer to as souls and may or may not be fully-manufactured Hitler-clones. But if they do care about those things, they better not say so, according to what is apparently boiler-plate legal language in Boston's agreement with the USOC.

Nobody who lives in Boston actually wants the city to win its bid for the 2024 Olympic games. And yet, in a joinder agreement between the city and the United States Olympic Committee, mayor Marty Walsh has signed a contract that forbids city employees from speaking negatively about the bid, the IOC, or the Olympic games. It's a great day for free speech in the cradle of liberty.

Boston, home of the Boston Massacre and the tea party revolt, the city from whence the USS Constitution launched, the home of both President John Adams', has decided to suspend their employees' free speech rights in favor of hosting a corporate sporting event packed with more authoritarian bullshit than your average Middle East dictatorship. Let that sink in for a moment.

Or, if you're like Boston's Mayor, Marty Walsh, just dust that crap off your shoulder cuz it's no big deal, yo.

"Mayor Walsh is not looking to limit the free speech of his employees and, as residents of Boston, he fully supports them participating in the community process. This was standard boilerplate language for the Joinder Agreement with the USOC that all applicant cities have historically signed. The Mayor looks forward to the first citywide community meeting that will be held next week."

The Mayor has also claimed that there would absolutely be no punishment for city workers who decided to express their feelings about the Olympics being a big bucket of money-sucking dogshit, but contracts are contracts, so they may not be inclined to test Walsh's honesty on that point. So I'll do it for them. The Olympics sucks. Just read it in a Boston accent.

Filed Under: boston, free speech, gag order, marty walsh, olympics
Companies: ioc

Justice Department Admits It Lied To Appeals Court Concerning Companies' Ability To Talk About National Security Letters

from the because-the-truth-looks-bad dept

Back in October, we wrote about the appeal on the legality of National Security Letters (NSLs), which are secretive filings from law enforcement demanding information with a perpetual gag order. In 2013, a district court had declared that NSLs were unconstitutional, but stayed that decision pending appeal. While the appeals court judges seemed skeptical, it still wasn't clear how they would rule. So it's interesting to see that the Justice Department has just admitted that it misled the court on some rather important points during the oral arguments.

In particular, with regards to the First Amendment question, the DOJ had insisted that companies could discuss the "quality" of the NSLs it had received, explaining it this way:

There is a category that the deputy attorney general provided that recipients can make disclosures and there is a category of 0-249 so recipients can disclose that. They’re allowed to disclose within these bands. And they can fully participate in the public debate, they can say as we have disclosed we’re in that band 0-249 and it can say the very things that [EFF Senior Staff Attorney Kurt Opsahl] said they can’t. They can say and we think the government is asking for too much in many of the NSLs we received and we want to talk to our fellow recipients and see if they too have felt that there’s too much and we think Congress ought to do something about that. They can do all of that. There’s nothing that says that they can’t comment, they’re allowed to make specific comments about quantity, there’s absolutely no ban on them commenting on the quality of those they’ve received.

Except that's not true, and it was clearly not true at the time. The EFF asked the DOJ to explain this statement in light of other statements that completely contradicted that claim, and suddenly the DOJ realized that it had been lying to the court on a rather important point. So it has now retracted those comments, claiming they were an "inadvertent misstatement."

In the course of discussing disclosures described in this letter, approximately 49 minutes into the Court's recording of the argument, government counsel indicated that if a company discloses that it is in one of these two bands starting with zero, it could publicly discuss the fact that it had received one or more NSLs and could discuss the quality of the specific NSL(s) that it had received.

That suggestion was mistaken. The district court correctly noted that “the NSL nondisclosure provisions . . . apply, without distinction, to both the content of the NSLs and to the very fact of having received one." .... The fact that a company may disclose that it has received 0 - 249 national security processes or 0 - 999 NSLs in a given period does not, by itself, allow that company to disclose that it has actually received one or more NSLs; the lower end of these bands was set at 0, rather than 1, in order to avoid such disclosures.

That last point is pretty interesting and probably explains why the Apple warrant canary changed. It wasn't about NSLs, but Patriot Act Section 215 requests (bulk records requests), but those fall into the "national security processes" list. So, it certainly sounds like Apple may have "violated" that agreement by originally saying it had received none, and once alerted to this fact, adjusted its language.

But, that's kind of crazy, and reveals just how problematic this setup is. Basically, the DOJ seems to be arguing that even if you haven't received any such requests, you can't say so, because you can only say within the 0 to 249 category. Thus, the DOJ appears to believe that all companies are bound by a gag order that they never received. Now that creates a rather serious First Amendment issue...

Filed Under: 9th circuit, doj, first amendment, free speech, gag order, lies, national security letters, nsls
Companies: eff

Wikileaks Reveals Super Injunction Blocking Reporting On Massive Australian Corruption Case Involving Leaders Of Malaysia, Indonesia & Vietnam

from the no-free-press-for-you dept

We've written about the problems of so-called super injunctions in the past (though mainly in the UK). This legal process not only keeps certain details under wraps concerning a lawsuit, but actually forbids the media from reporting on anything related to the case at all. Such a thing would be clear prior restraint and not allowed in the US, but apparently is considered legal in other parts of the world. However, Wikileaks has now revealed what appears to be a super injunction against reporting on a massive corruption case in Australia, involving the leaders of Malaysia, Indonesia and Vietnam, along with people at Australia's central bank, the Reserve Bank of Australia:

The super-injunction invokes “national security” grounds to prevent reporting about the case, by anyone, in order to “prevent damage to Australia's international relations”. The court-issued gag order follows the secret 19 June 2014 indictment of seven senior executives from subsidiaries of Australia's central bank, the Reserve Bank of Australia (RBA). The case concerns allegations of multi-million dollar inducements made by agents of the RBA subsidiaries Securency and Note Printing Australia in order to secure contracts for the supply of Australian-style polymer bank notes to the governments of Malaysia, Indonesia, Vietnam and other countries.

The suppression order lists 17 individuals, including "any current or former Prime Minister of Malaysia", “Truong Tan San, currently President of Vietnam", "Susilo Bambang Yudhoyono (also known as SBY), currently President of Indonesia (since 2004)", "Megawati Sukarnoputri (also known as Mega), a former President of Indonesia (2001–2004) and current leader of the PDI-P political party" and 14 other senior officials and relatives from those countries, who specifically may not be named in connection with the corruption investigation.

The document also specifically bans the publication of the order itself as well as an affidavit affirmed last month by Australia's representative to ASEAN Gillian Bird, who has just been appointed as Australia's Permanent Representative to the United Nations. The gag order effectively blacks out the largest high-level corruption case in Australia and the region.

It's the reasoning given that's most troubling:

The purpose of these orders is to prevent damage to Australia's international relations that may be caused by the publication of material that may damage the reputations of specified individuals who are not the subject of charges in these proceedings.

It's difficult to see how that's a legitimate reason to completely hide the entire case from public view, when it appears to cover a variety of important matters of which the public should be aware. If some people may be embarrassed about this, even as they're not subject to the charges in the proceedings, then they should easily be able to explain that fact. There are lots of lawsuits that will embarrass some people (even those not directly subject to the case). But we don't hide them when they deal with everyone else. The decision to do it here really smacks of the "high court" / "low court" distinction between the treatment those in power receive vs. what those not in power do.

Filed Under: australia, corruption, free speech, gag order, indonesia, journalism, malaysia, super injunction, vietnam
Companies: rba, reserve bank australia

Former Intelligence Officials Break Clapper's Media Gag Order To Complain About Clapper's Media Gag Order

from the security-through-obtusity dept

James Clapper's order forbidding both current and former employees from discussing almost anything with the media has raised more questions than it's answered. It appears to have been written as a response to the Snowden leaks (as well as various unnamed officials' responses to those leaks), but its restrictiveness does nothing to prevent document leaking and has created a whole lot of confusion.

To begin with, the very definition of media/press is impossible to pin down. According to the original order, anything from major networks to officials' own social media accounts were off limits. A clarification issued shortly thereafter offered nearly nothing in the way of clearing things up.

Now, former officials -- the same ones who have been forbidden from discussing almost everything without prior approval -- are offering up plenty of discussion on the policy itself, assuredly without prior approval. Shane Harris at Foreign Policy has collected a great deal of irritated statements from former intelligence officials who have a ton of problems with Clapper's gag order.

One former intelligence official who now works in the private sector said he declined five recent requests to discuss national security issues on television news shows because he was afraid of having his security clearance revoked or being fined for breaking the rules. Ironically, the former official said, he only learned about new restrictions on talking to the press from Gen. Keith Alexander, the former director of the National Security Agency, when he discussed it with comedian John Oliver for his new HBO talk show.

Much like many legislators and government officials learned of the NSA's activities from outside sources, former officials are learning more about a policy affecting their press interactions from other former officials interacting with the press.

Meanwhile, Clapper's office claims this policy has always been in place, despite the reactions that clearly indicate otherwise. It also should be noted that this "there all along" policy hasn't prevented various unnamed intelligence officials -- some of them still currently employed -- from offering their opinions on the NSA's programs over the past several months.

It also hasn't prevented former NSA head Michael Hayden from acting as the agency's biggest cheerleader, apparently appearing at any press venue that will have him.

Several sources cited Michael Hayden, the former director of the NSA and the CIA, as a prime example. Hayden writes a regular column for the Washington Times. Does that mean Hayden is now a journalist, some former officials asked? If so, are they prohibited from talking to him, too?

(The same question could be asked of Stewart Baker, the former NSA counsel who has written pieces for several venues, including regular appearances at the Volokh Conspiracy blog, now hosted by the Washington Post.)

Spokespeople for the agency claim Hayden runs everything by the agency first, but if that's true (something that seems unlikely given the number of appearances, including a live debate with NSA critics), that makes him the minority. Other former officials claim that if Clapper's going to pretend this policy isn't new, they'll just continue to route around his office, just as they did before the supposedly "not new" policy went into force.

The former intelligence official who said he first learned of the policy by watching HBO said he's reluctant to call Clapper's office because he thinks it'll only invite more scrutiny. Another said that until he hears otherwise, he will continue to clear articles through his former agency, not the ODNI. And, he predicted, his colleagues will do the same.

The policy, which "isn't new" but still comes as a surprise to many former officials, is typical of the NSA's responses over the past several months -- long on indignant righteous fury and short on substance. That this supposedly pre-existing policy needed both a clarification and a declaration that nothing has ever changed is also indicative of the agency's clumsy attempts to embrace transparency place one tentative arm a few inches above transparency's shoulder: needlessly convoluted and ultimately useless.

Filed Under: gag order, intelligence community, james clapper, reporting

DC District Court Overrides Judge John Facciola's Orders, Grants DOJ Request For Gag Order On Subpoenaed Companies

from the throwing-a-shoulder-into-the-government dept

It appears Washington, DC magistrate judge John Facciola is still making the government earn everything it asks for. Facciola is the judge who has been sending the government back to its desk to rewrite overly broad warrants seeking electronic data. In one of these cases, the government decided that it would rather go "judge shopping" all the way across the country rather than narrow its request, but was shot down by a California district court judge.

Facciola's orders are the basis for two memorandums recently issued by DC District Court Judge Richard Roberts concerning a case still mostly under seal as part of federal grand jury investigation. (The government also asked for these to be filed under seal, but that has obviously been declined.)

The government challenges two orders issued by Magistrate Judge John Facciola regarding the government's application for an order under 18 U.S.C. The first order invited Twitter, Inc. to intervene as a respondent and file a notice with the court on whether Twitter intended to be heard on the merits of the government's application. The second order instructed the government to file a public, redacted copy of its application and draft order.

Facciola also issued a similar order for Yahoo, the other company being subpoenaed. Both sets of orders invited the companies to challenge both the gag order preventing them from informing their customer(s) of the government's interest in their data. The government understandably wasn't thrilled with these orders and filed an appeal (of sorts) seeking to have Facciola's orders vacated. The District Court notes that the judicial system -- at this level -- doesn't exactly work this way.

On March 27, 2014, the government filed what it styled as an appeal from the magistrate judge's two orders regarding the government's application for an order under 18 U.S.C. The government moved to vacate the orders issued by the magistrate judge and moved for the district court to grant its application for a nondisclosure order. In addition, the government moved to seal the appeal and resulting order.

This faux pas by the government is explained a bit further in a footnote, as is the judge's rationale for treating this as an "objection," rather than an "appeal."

The government styles its challenge as an appeal, but the reference is a misnomer. With the exception of authority granted by Federal Rule of Criminal Procedure 58 concerning misdemeanor proceedings handled by a magistrate judge under 18 U.S.C. 3401, the district court does not exercise appellate power. See, United States v. Choi, 818 F. Supp. 2d 79, 85 (D.D.C. 2011) ("The magistrate judge is not an inferior court, and the district court does not stand in an appellate capacity over the magistrate.") For the reasons explained below, the government's appeal will be considered as an objection to the magistrate judge's two orders.

Several more pages of judicial rationale follow, pointing out that grand jury deliberations are not subject to transparency and that Facciola erred by suggesting Twitter and Yahoo could either challenge the gag order or inform their customers. Judge Roberts points out that there's very little either company can offer in terms of judging the "merit" of the government's gag order, or the subpoena itself. Further discussions also defer to "government knows best" mentality, suggesting that any notification would "jeopardize" ongoing investigations. That this investigation is tied to a grand jury slams the door shut on any appeal of the gag order.

Because the express terms of 18 U.S.C. 2705(b) and applicable legal precedent governing public access to grand jury proceedings and materials do not support the first order inviting Twitter [and Yahoo] to intervene or the second order instructing the government to file a public, redacted copy of the non-disclosure application, the orders will be vacated.

So, the government gets its win, but it had to put in a little extra paperwork. It hoped these documents would be sealed as well, but you can't win them all, especially when memos in question contain only one redactable sentence each. If this is how the last few months have gone in Facciola's court, it's little wonder the government has been making road trips to other venues.

Filed Under: dc district court, doj, gag order, john facciola, richard roberts, subpoenas
Companies: twitter, yahoo