Patent Troll Told That It Can't Sue The FTC For Merely Investigating Its Shakedown Scam

from the making-quick-work-of-it dept

We've written a bunch of times about the "scanner patent troll" MPHJ (which also goes by a bunch of other names, because that's how patent trolls roll). This was the company that claimed to have a patent on a network connected scanner that allowed people to email a scan. It sent out letters to tons of companies demanding between $900 and $1200 per employee for merely owning a modern scanner. While the company is a bit sketchy and hard to track down, reporter Joe Mullin more or less outed lawyer Jay Mac Rust as the "brains" of the operation.

The details were so egregious that MPHJ became the poster child for the absolute worst in patent trolling. Vermont sued the company for shaking down local businesses, and the FTC began an investigation into a short list of patent trolls, with MPHJ's name at the very top.

In response, MPHJ... sued the FTC, claiming that it had a First Amendment right to shakedown companies with bogus threats and demand letters.

That lawsuit has gone over about as well as you might expect, with a court dismissing it a few days ago. The court basically says the FTC is allowed to investigate, and MPHJ's claim is ridiculous:

May Plaintiff derail the FTC administrative process by bringing this declaratory judgment action? The short answer is, "No."

Basically, the court ticks off each of MPHJ's objections and points out that the FTC is allowed to run its investigation, and MPHJ can't claim that merely being investigated is somehow a violation of its rights. MPHJ, of course, now claims it is thinking about appealing this ruling:

MPHJ respectfully believes the Court erred in its decision. The FTC had threatened to sue MPHJ in that court, and MPHJ sought only to have the FTC's claim resolved in that court. It is important to note that MPHJ was willing to litigate the issue in the federal courts, as it is confident that its conduct was lawful, a point recently confirmed by the Nebraska Federal District Court.

Of course, the whole point of the ruling is that the FTC has to be allowed to complete its investigation before MPHJ can challenge it in court. As for the situation in Nebraska, MPHJ is correct that a court in Nebraska did say that the company has a constitutional right to send shake down letters, but even if that's true, it doesn't mean the FTC isn't allowed to investigate what's happening.

Filed Under: first amendment, ftc, investigation, lawsuits, patent trolls
Companies: mphj

DOJ Says No NSA Help Was Needed To Find Dread Pirate Roberts Since He Misconfigured His CAPTCHAs

from the oops dept

The lawyers for Ross Ulbricht have been tossing an awful lot of speculative legal theories at the legal wall in his defense in the past few months, and none of them seem to be sticking. The most recent attempt was to argue that the process by which the DOJ/FBI got access to Silk Road's servers must have violated the 4th Amendment, mainly because it was "hidden" via Tor, and Ulbricht couldn't figure out how else the FBI tracked down the servers. In response, the DOJ has revealed the details of how it tracked down the servers via a very readable court filing where you can almost feel the snark dripping from the US Attorneys' Office, as they mock both the speculative and hyperbolic nature of the claims, and reveal that Ulbricht basically misconfigured his CAPTCHA login feature to leak the IP address.

Contrary to Ulbricht’s conjecture that the server hosting the Silk Road website (the “SR Server”) was located by the NSA, the server was in fact located by the FBI New York Field Office in or about June 2013.... The Internet protocol (“IP”) address of the SR Server (the “Subject IP Address”) was “leaking” from the site due to an apparent misconfiguration of the user login interface by the site administrator – i.e., Ulbricht.... FBI agents noticed the leak upon reviewing the data sent back by the Silk Road website when they logged on or attempted to log on as users of the site.... A close examination of the headers in this data revealed a certain IP address not associated with the Tor network (the “Subject IP Address”) as the source of some of the data.... FBI personnel entered the Subject IP Address directly into an ordinary (non-Tor) web browser, and it brought up a screen associated with the Silk Road login interface, confirming that the IP address belonged to the SR Server....

Based on publicly available information, the Subject IP Address was associated with a server housed at a data center operated by a foreign server-hosting company in Iceland.... Accordingly, on June 12, 2013, the United States issued a request to Iceland for Icelandic authorities to take certain investigative measures with respect to the server, including collecting routing information for communications sent to and from the server, and covertly imaging the contents of the server.... The Reykjavik Metropolitan Police (“RMP”) provided routing information for the server soon thereafter, which showed a high volume of Tor traffic flowing to the server – further confirming that it was hosting a large website on Tor.... Subsequently, after obtaining the legal process required under Icelandic law to search the server, and after consulting with U.S. authorities concerning the timing of the search, the RMP covertly imaged the server and shared the results with the FBI on or about July 29, 2013.... Forensic examination of the image by the FBI immediately and fully confirmed that the server was in fact hosting the Silk Road website, i.e., that it was in fact the SR Server.... The server contained what were clearly the contents of the Silk Road website – including databases of vendor postings, transaction records, private messages between users, and other data reflecting user activity – as well as the computer code used to operate the website.

Later, the filing points out:

It does not matter that Ulbricht intended to conceal the IP address of the SR Server from public view. He failed to do so competently, and as a result the IP address was transmitted to another party – which turned out to be the FBI – who could lawfully take notice of it.

While the DOJ's story is compelling (and while I'm sure some will still insist "parallel construction," it seems like there would need to be a lot more evidence of that happening), there are some other interesting tidbits in the filing. Ulbricht had argued that the search of the server was unconsitutional because his property was searched without a warrant. However, the DOJ points out that since the server was in Iceland, the 4th Amendment doesn't apply. But in defending the lack of a warrant, it's interesting that the DOJ admits that under the Stored Communications Act, a "warrant was not even an option... given that the SR Server was controlled by a foreign data center."

That seems to contradict the DOJ's claims in its ongoing fight with Microsoft over accessing emails stored in Ireland. There, the DOJ insists that a warrant under the SCA is not only very much an option, but that it requires Microsoft to hand over the data. The DOJ says the cases are different since Microsoft is a US entity, and thus the SCA compels the US entity to reveal data no matter where it is, but that doesn't apply since the Silk Road server was controlled by an Icelandic company.

There remain some interesting legal questions raised by the prosecution against Ulbricht, but so far, the extremely speculative nature of his defense doesn't seem particularly likely to get anywhere. Also, the leaky CAPTCHA should serve as a reminder that, despite all the freakouts and concerns from law enforcement about how the internet and things like Tor will make it impossible to catch criminals, people will almost always mess up somehow and reveal breadcrumbs back to who they are.

Filed Under: 4th amendment, doj, dread pirate roberts, fbi, investigation, nsa, ross ulbricht
Companies: silk road

Documents Show 100 Officers From 28 Law Enforcement Agencies Accessed A Photographer's Records

from the the-First-Amendment-right-to-be-hassled-endlessly dept

Here's what exercising your First Amendment rights gets you in certain parts of the US. Photographer Jeff Gray has been filming cops and photographing public structures, as well as documenting the reactions of law enforcement to his activities.

The Department of Homeland Security apparently felt Gray was enough of a "threat" that it opened an investigation on him. After scrutinizing publicly-available information (like Gray's own YouTube account), it came to the conclusion that his activities were completely protected… it just didn't like the way he acted.

This subject is exercising his first amendment rights, however the manner in which he lures the officers in is concerning.

Well, you can't be "lured" if you just respect citizens' rights -- rights that were recently upheld by a Supreme Court decision. Despite the DHS declaring Gray's actions perfectly fine, local law enforcement officers still took it upon themselves to send social services to his home (after being "tipped" that Gray owned guns) and interviewing his kids at school without his knowledge.

Now, Gray has obtained more information that shows law enforcement officers are still trying to find some way to shut down his protected activities.

After several years of auditing police departments across Florida to determine whether their officers uphold the First Amendment and the law of the land, Photography Is Not A Crime’s Jeff Gray has had his driver’s license and vehicle tag information searched by police well over 200 times.

Gray’s request for the record of who accessed his information on the state-operated Driver and Vehicle Information Database (DAVID) turned up police officer after police officer running Gray’s vehicle plate and driver’s license.

The number of agencies that have peeked at Gray's records is amazing. District attorneys' offices from two different districts have run his records and 100 officers spread across 28 agencies (including the state's Fish and Wildlife Dept.) have accessed his data, often multiple times.

The documents also include a few redacted names, withheld using exemption 119.071(4)(c):

Any information revealing undercover personnel of any criminal justice agency is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

Apparently, the Jacksonville Sheriff's Office has manpower to burn, and can use undercover personnel to "investigate" First Amendment-protected activities.

Gray will probably be able to add the DEA to that list as well, after his most recent interaction, which occurred while filming the agency's offices in Jacksonville, FL. Four unnamed, unidentified DEA agents emerged from the building in hopes of getting Gray to stop, with one of them attempting to grab cameras from both Gray and his filming partner.



One of the DEA agents (along with a responding sheriff's officer) emerged with his phone up and in shooting position, the sort of childish reaction that's becoming more common. Officers should film interactions with citizens, but cameras shouldn't be deployed in hopes of cowing someone into shutting off their recording device. (Not to mention the fact that the sheriff's squad car should have had a dashcam rolling from the moment the officer pulled up.) Gray has seen this tactic often enough to good-naturedly suggest the officers move their phones to a horizontal position to get a better recording.



The number of times Gray's records were accessed shows that law enforcement officers are looking for anything they can to shut his activism down. While a number of the records requests were probably linked to officers running his info while interacting with him, there are way more hits to the database than can be explained away as adhering to data-access policies. Plus, there's little doubt that most law enforcement officers in the area are familiar with Gray and his activities at this point, making any running of his info completely extraneous.

And, as the sheriff in the latter video states, Gray's conduct is perfectly legal, so there's really no reason for officers to be interacting with him at all at this point. Photographing public buildings and figures may make those on the other side of the camera uncomfortable, but they're just going to have to learn to get over it. Running records requests over and over again is simply abusing a tool because you have access to it.

Filed Under: dhs, first amendment, investigation, jeff gray, police, records

Los Angeles Police Department Claims EVERY License Plate Is Part Of An Investigation

from the the-words-'relevant'-and-'all'-are-apparently-synonymous dept

The ongoing battle between the EFF and law enforcement agencies over the use, control and disposal of automatic license plate reader data has produced some seriously strange responses from law enforcement officials.

One person's request for anonymized data from the LAPD's database resulted in this bizarre response last year.

When one citizen requested anonymized ALPR data from the LA County Sheriff earlier this month via a public records request, his request was denied primarily on confidentiality grounds. Again, he wanted anonymous data, but was denied based on confidentiality.

So, even anonymized data is confidential. That in itself is a strange assertion (or would be, if obfuscation wasn't the normal state of affairs in citizen-law enforcement interactions). Supporters of ALPRs claim the data is not "personal," being that it only tracks a vehicle and not a person, but, somehow, it still can't be released without sacrificing "confidentiality."

The EFF (along with the ACLU) is attempting to pry some license plate data free from this same police department. The LAPD recently filed a brief stating its reasons for denying the group's FOIA request and made another surprising argument.

The agencies took a novel approach in the briefs they filed in EFF and the ACLU of Southern California’s California Public Records Act lawsuit seeking a week’s worth of Automatic License Plate Reader (ALPR) data. They have argued that “All [license plate] data is investigatory.” The fact that it may never be associated with a specific crime doesn’t matter.

The LAPD uses the "investigative records" exemption to justify withholding the data. Here's where it first explains its reasoning…

The ALPR data sought in this case- electronic records consisting of vehicles' license plates, and the date, time and location those license plates were captured by the Department's ALPR cameras constitute "records of. . .investigations conducted by ... any local police agency" which fall squarely under this statutory exemption.

And here's where it flat out tells the court that all license plate data is "under investigation."

Releasing the subject ALPR data held by the Department would likewise "expose to the public the very sensitive investigative stages of determining whether a crime has been committed." All ALPR data is investigatory - regardless of whether a license plate scan results in an immediate "hit" because, for instance, the vehicle may be stolen, the subject of an "Amber Alert," or operated by an individual with an outstanding arrest warrant... The very process of checking license plates against various law enforcement lists, whether done manually by the officer or automatically through ALPR technology, is intrinsically investigatory - to determine whether a crime may have been committed. The mere fact that ALPR data is routinely gathered and may not --initially or ever-- be associated with a specific crime is not determinative of its investigative nature.

There it is, Los Angeles drivers. Simply by driving, you are "under investigation." You may not even need to drive. You could never leave your house and still be "under investigation." As the EFF points out, this isn't how the law is supposed to work.

This argument is completely counter to our criminal justice system, in which we assume law enforcement will not conduct an investigation unless there are some indicia of criminal activity. In fact, the Fourth Amendment was added to the U.S. Constitution exactly to prevent law enforcement from conducting mass, suspicionless investigations under “general warrants” that targeted no specific person or place and never expired...

[A]s we argued in the Reply brief we filed in the case last Friday, the accumulation of information merely because it might be useful in some unspecified case in the future certainly is not an “investigation” within any reasonable meaning of the word.

This is the prevailing law enforcement mentality on display: take publicly available data (as they argue in favor of ALPRs, license plate/location data has no expectation of privacy), lock it up, hold onto it for as long as possible, and when the public wants a peek behind the curtain, claim doing so would compromise investigations and harm the public.

This argument gives us little hope that law enforcement agencies are going to be in any hurry to install tough data disposal guidelines. As far as both the LAPD and LA Sheriff's Department are concerned, this data has investigative uses that preclude timely disposal or, indeed, any disposal at all. If you start eliminating "non-hit" data, you might toss out some plates that might aid in some theoretical investigation in the future.

These assertions are made even as the agencies acknowledge the privacy implications of ALPRs.

In another interesting turn in the case, both agencies fully acknowledged the privacy issues implicated by the collection of license plate data.

LAPD stated in its brief:

[T]he privacy implications of disclosure [of license plate data] are substantial. Members of the public would be justifiably concerned about LAPD releasing information regarding the specific locations of their vehicles on specific dates and times. . . . LAPD is not only asserting vehicle owners’ privacy interests. It is recognizing that those interests are grounded in federal and state law, particularly the California Constitution. Maintaining the confidentiality of ALPR data is critical . . . in relation to protecting individual citizens’ privacy interests”

But when these agencies say "privacy," they're only using it as an angle to prevent the public from seeing the collected data. Confidentiality is again cited as a reason to keep the public from looking at ostensibly public records. They're not concerned with any drivers' privacy, only in keeping the wall propped up between the public and law enforcement.

The LASD even admits that other law enforcement tools can be used to connect "anonymous" license plates with people, and use the combined info to track people as they move around Los Angeles. But this bit of clarity isn't accompanied by any push for better privacy protections.

The agencies use the fact that ALPR data collection impacts privacy to argue that—although they should still be allowed to collect this information and store it for years—they should not have to disclose any of it to the public.

There's nothing in this for citizens. If license plate data has "no expectation of privacy," the police should have no problem with turning over anonymized data, much less records pertaining directly to the requester. But the law enforcement community continues to use a double-standard that allows it to circumvent the annoyance of limiting itself to pertinent data while maintaining a wall of opacity to further distance the public from all the data it's gathering on them.

Filed Under: investigation, license plates, los angeles, privacy

FBI 'Mistake' Leads To Six Years Of Monitoring Anti-War Website

from the too-bad-this-'screw-up'-only-affects-the-people-who-didn't-screw-up dept

If you've received a fairly serious threat against you or your business, you might think turning that info over to the FBI would be a good idea. Think again. The owners of antiwar.com found themselves on the receiving end of more than six years of monitoring and surveillance for doing just that, as Spencer Ackerman details at The Guardian.

The FBI monitored a prominent anti-war website for years, in part because agents mistakenly believed it had threatened to hack the bureau’s own site.

Internal documents show that the FBI’s monitoring of antiwar.com, a news and commentary website critical of US foreign policy, was sparked in significant measure by a judgment that it had threatened to “hack the FBI website” and involved a formal assessment of the “threat” the site posed to US national security.

But antiwar.com never threatened to hack the FBI website. Heavily redacted FBI documents, obtained through the Freedom of Information Act and shared with the Guardian, show that Eric Garris, the site’s managing editor, passed along to the bureau a threat he received against his own website.

These documents are part of antiwar.com's ongoing lawsuit against the FBI (brought with the assistance of the ACLU). What's been released so far is heavily redacted and severely limited. The FBI's FOIA reply letter indicates it has only released 47 out of 170 "reviewed" pages. More details of this incursion on antiwar.com owners' First Amendment rights is sure to surface if the lawsuit is successful.

The mistake, which ran uncorrected for more than a half-decade, was prompted by an agent's mischaracterization of the threatening email Eric Garris received and forwarded to the agency in 2001 (see last page of PDF), the day after the 9/11 attacks. The message here was directed at antiwar.com, and Garris probably figured he was doing the right thing in alerting the FBI to such a threat against his site -- having no idea that FBI would misread the forwarded email to be a threat by Garris against the FBI.

“YOUR SITE IS GOING DOWN.”

“Be warned assholes, ill be posting your site address to all the hack boards tonight, telling them about the little article at the moscowtimes and all. YOUR SITE IS HISTORY”

Why this agent took it upon himself to investigate the messenger is unclear, but this mistake is cited years down the road as justification for the ongoing investigation. Certainly the date had something to do with it (even if this mistaken determination wasn't made until January of 2002). Every security and law enforcement agency was experiencing very heightened "awareness," for lack of a better word. But as the years wore on, no one seemed willing to shut the investigation down, despite having time for cooler heads to prevail and failing to turn up evidence suggesting the two site owners were a threat to national security.

Even more incredibly, the investigation wasn't limited to those affected by the mischaracterization by the FBI's San Francisco office. For whatever reason, the New Jersey branch independently opened its own investigation -- one of the FBI's infamous "threat assessments," an investigative "out" that allows the agency to monitor pretty much anyone for any period of time without having to justify its actions with little things like reasonable suspicion.

The agency continued this monitoring through 2008 (at least), despite the fact an analyst noted in 2004 that the investigation was highly questionable in terms of being constitutionally sound as well as noting the so-called evidence compiled to date was pretty much worthless.

ANALYST COMMENTS: The rights of individuals to post information and to express personal views on the Internet should be honored and protected; however, some material that is circulated on the Internet can compromise current active FBI investigations. The discovery of two detailed Excel spreadsheets posted on www.antiwar.com may not be significant by itself since distribution of the information on such lists are wide spread.

Many agencies outside of law enforcement have been utilizing this information to screen their employees. Still, it is unclear whether www.antiwar.com may only be posting research material compiled from multiple sources or if there is material posted that is singular in nature and not suitable for public release…

But this clear thinking is immediately undercut by the analyst's further comments, which question the financial ties of the website and refer to the San Francisco's office's mischaracterization of Garris' forwarded email as a relevant "fact."

There are several unanswered questions regarding www.antiwar.com. It describes itself as a non-profit group that survives on generous contributions from its readers. Who are these contributors and what are the funds utilized for? Due to the lack of background information available on Justin Raimondo, it is possible that this name is only a pseudonym used on www.antiwar.com. If this is so, then what is his true name? Two facts have been established by this assessment. Many individuals worldwide do view this website including individuals who are currently under investigation and Eric Garris has shown intent to disrupt FBI operations by hacking the FBI website.

First off, it's disconcerting to know that the FBI judges websites by their visitors. You may be a law-abiding citizen but if your site is visited by "persons of interest," there's a very good chance the FBI will be digging into your personal information as well. The documents detail that the seized hard drive of a suspect revealed that he had visited "many websites" over an 11-month period, with antiwar.com being one of them. If this is a justification for monitoring, then everything from Google's search page to those terrible cable company splash pages that get set as default home pages by installers could be considered worthy of further monitoring.

Second, the repetition of the mistaken conclusion is troublesome, especially as it asserts that hacking the FBI's public-facing site (i.e., tearing down its poster) will somehow disrupt "FBI operations." While it may disrupt those who maintain the public site, it should have little effect on FBI operations. This shows the irrational fear of anything hacker-related has been deeply ingrained in government agencies for years. (Worse, it shows it hasn't improved.)

By 2005, both field offices determined the justification for ongoing monitoring of antiwar.org to be "meager" and "insufficient," but yet the investigations continued through 2008, at minimum. The end date (if there is one) remains a mystery as there is nothing in the released documents suggesting an official termination of the investigations.

And here's where we come to another harmful outcome of government surveillance. In 2011, the site owners discovered they were being (or had been) investigated by the FBI. Thanks to this becoming public knowledge, the site's owners have seen a severe dropoff in income.

Garris said that since antiwar.com learned of the FBI surveillance in 2011, donations dried up by 20% in the following year.

“We’ve actually talked to three large contributors shortly after that who told us that they’d not feel comfortable giving us money anymore because they were afraid of the repercussions, and I don’t know how many other donors have been put off in that way,” Garris said.

An FBI agent's mistake is all it takes to open up your personal and financial data to curious federal agents. It's also all it takes to make it significantly harder to exercise your First Amendment rights. Adding a financial burden to the heightened possibility that your efforts (and unrelated activities) are being monitored is more than sufficiently chilling for most people. Hopefully, the site owners' lawsuit will hold someone accountable for a First Amendment-violating "mistake" that continued for more than 6 years, despite failing to uncover anything that justified continued surveillance.

Filed Under: doj, fbi, investigation, mistake, surveillance, threat letter
Companies: antiwar.com

Over 120 Rights And Religious Groups Join ACLU In Call For DOJ To Investigate NYPD's Surveillance Of Muslims

from the pushing-back dept

Over the last few years, the NYPD's intrusive surveillance of the city's Muslim population has raised many concerns about civil liberty violations while simultaneously failing to turn up much in the way of terrorist plots.

The ACLU has gathered the support of 125 civil rights, religious, racial justice and other community organizations, all of which have signed its letter requesting that the DOJ investigate the NYPD's surveillance of Muslims.

Dear Acting Assistant Attorney General Samuels and Section Chief Smith:

The undersigned civil rights, faith, community, and advocacy groups request that the Civil Rights Division of the Department of Justice commence a prompt investigation under 42 U.S.C. § 14141 into the New York City Police Department’s (“NYPD”) discriminatory surveillance of American Muslim communities.

As shown by the NYPD’s own documents, for over a decade, the Department has engaged in unlawful religious profiling and suspicionless surveillance of Muslims in New York City (and beyond). This surveillance is based on the false and unconstitutional premise, reflected in the NYPD’s published “radicalization” theory, that Muslim religious belief, practices, and community engagement are grounds for law enforcement scrutiny. That is a premise rooted in ignorance and bias: it is wrong and unfairly stigmatizes Muslims, who are a law-abiding, diverse, and integral part of our nation and New York City. Unsurprisingly, the NYPD’s surveillance program has had far-reaching, deeply negative effects on Muslims’ constitutional rights by chilling speech and religious practice and harming religious goals and missions. It has frayed the social fabric of Muslim communities by breeding anxiety, distrust, and fear. The NYPD’s biased policing practices hurt not only Muslims, but all communities who rightfully expect that law enforcement will serve and protect America’s diverse population equally, without discrimination.

Under the Violent Crime Control and Law Enforcement Act of 1994 § 210401, the United States Attorney General is authorized to conduct investigations concerning “a pattern or practice of conduct by law enforcement officers . . . that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” 42 U.S.C. § 14141(a)...

As we've seen previously, the NYPD has placed blanket surveillance on entire mosques, justifying it with guidelines weakened by a former CIA officer who exploited post-9/11 paranoia to broadly expand the department's surveillance powers and eliminate built-in protection of civil liberties. This surveillance continues to this day despite an NYPD official admitting these programs have yet to generate a single useful lead or investigation.

The ACLU has drawn support across a variety of religious groups, many of which recognize that while the NYPD may be focused on Muslims now, any other religious (or political, activist, etc.) group could be subject to the same intrusive surveillance if a future attack brings with it guilt by association.

If the DOJ follows through, this will be the second time in recent months that it has weighed in on the NYPD's questionable tactics. Back in June, Attorney General Eric Holder filed a brief recommending that if Judge Scheindlin found the department's stop-and-frisk program to be unconstitutional, independent oversight should be appointed to keep the department in line. Sheindlin did find elements of the program unconstitutional and one of the remedies was, indeed, independent oversight.

As was pointed out then, the DOJ's reputation may be terrible, but one of the few areas in which it has been "aggressive and commendable" is its handling of civil rights violations by police departments. Hopefully, this will result in more of the same.

Filed Under: doj, investigation, muslims, nyc, nypd

UK Prime Minister Urges Investigation Of The Guardian Over Snowden Leaks; There Shall Be No Free Press

from the chilling-effects dept

While freedom of the press is fairly deeply engrained in the US, that's not so true elsewhere -- and that became abundantly clear with the absurd theatrics of UK officials forcing the Guardian to destroy a computer in the basement for no reason at all. And now UK Prime Minister David Cameron is ratcheting things up, urging Parliament to investigate The Guardian to see if it broke any laws:

David Cameron has encouraged a Commons select committee to investigate whether the Guardian has broken the law or damaged national security by publishing secrets leaked by the National Security Agency whistleblower Edward Snowden.

He made his proposal in response to a question from former defence secretary Liam Fox, saying the Guardian had been guilty of double standards for exposing the scandal of phone hacking by newspapers and yet had gone on to publish secrets from the NSA taken by Snowden.

I've read that statement over and over and over again, and I still don't see what the double standard is. Both involve reporting on things of public interest, which, last I checked, is exactly what news organizations are supposed to do.

Then it gets even more bizarre, with Cameron arguing that the above-mentioned computer destruction somehow "proves" that the news organization knew it was breaking the law.

Speaking at prime minister's questions on Wednesday, Cameron said: "The plain fact is that what has happened has damaged national security and in many ways the Guardian themselves admitted that when they agreed, when asked politely by my national security adviser and cabinet secretary to destroy the files they had, they went ahead and destroyed those files.

"So they know that what they're dealing with is dangerous for national security. I think it's up to select committees in this house if they want to examine this issue and make further recommendations."

That's a plainly ludicrous interpretation of what happened. First, it wasn't a "polite" request, but there was a very clear implied threat to the Guardian if it didn't comply. Second, using oppressive censorship on the one hand to argue in support of further oppressive censorship on the other hand isn't exactly a winning argument.

In the end, what Cameron is doing is making it clear that the UK can have no free press. It can only have stenographers. When the government threatens to have you investigated for reporting on the excesses of government, you've created massive chilling effects, and guaranteed much greater corruption and abuse, as you've wiped out a key factor in keeping those things in check. Cameron's statements reflect poorly on the wider UK and its supposed belief in free speech and a free press.

Filed Under: chilling effects, david cameron, edward snowden, free press, freedom of the press, gchq, investigation, surveillance, uk
Companies: the guardian

DOJ Scrambles To Try To Explain Why It Never Investigated Systematic Misrepresentations By NSA To FISA Court

from the er,-um,-er,-because! dept

So, yesterday, we wrote about DOJ spokesperson Brian Fallon's email exchange with USA Today investigative reporter Brad Heath, insisting that he (Fallon) was holding back answers to Heath's questions in an attempt to convince him not to publish a story, and promising that he'd instead reveal those answers to a competing reporter to make Heath look bad later. As Ken White rightfully noted, this was a story that showed the government's contempt for the public.

As promised, Heath did in fact publish his story, and it's a big story, which is well-researched and supported, highlighting how based on the quotes from FISC judges, the DOJ's Office of Professional Responsibility (basically the DOJ's ethics watchdogs) had an absolute responsibility to investigate what happened, and even possibly take action against people for blatantly misrepresenting facts about the NSA's surveillance effort to the FISA court. Remember, the declassified ruling stated plainly:

The Court is troubled that the government's revelations regarding NSA's acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.

A substantial misrepresentation by the DOJ to the FISA court should be a big deal. Three times in three years should be an even bigger deal, and one where you'd think the ethics office would get involved. In fact, Heath spoke to a previous attorney at OPR who said exactly that:

Those opinions were sufficiently critical that OPR should have reviewed the situation, even if only to assure the department that its lawyers were not to blame, former OPR attorney Leslie Griffin said. "There's enough in the opinions that it should trigger some level of inquiry," she said.

Instead, as the FOIA response indicated, the DOJ OPR did absolutely nothing. There was no investigation. No one was reprimanded for repeatedly misrepresenting the NSA's surveillance program to its one major oversight body, the FISA court. That's a big story, and you can see why the DOJ didn't want it out there. So, now we're supposed to see the "answers" that Fallon promised to leak to other reporters that would undercut this argument. But we're still waiting. Fallon's initial response (in Heath's article) is weak beyond belief:

Justice spokesman Brian Fallon said in a statement Thursday that the department's lawyers "did exactly what they should have done. They promptly and appropriately reported compliance issues upon their discovery within the executive branch as well as to the Court and Congress. The court's opinions and facts demonstrate that the department attorneys' representation before the court met the highest professional standards."

That doesn't seem to undermine Heath's story at all. It strengthens it. If the DOJ is allowed to misrepresent the NSA's activities so frequently, and that's okay because it "meets the highest professional standards" isn't that a problem?

In another interview, this time with Politico, Fallon continued to attack Heath, but failed to actually show that the story was inaccurate or not newsworthy at all. Instead, he makes it pretty clear that this is more about a coverup of the DOJ's failings.

"Brad is reporting on the lack of an OPR inquiry, but that only seems newsworthy if one might be warranted in the first place. It isn’t," he wrote. "For the last several days, we asked Brad to exercise discretion rather than write a story that leaves a false impression that there was any evidence of misconduct or basis for an inquiry. We proposed putting him in touch with people who could independently explain why no inquiry was warranted in hopes it might persuade him. When it became clear he intended to publish his story regardless, there was no point in asking any of those people to reach out."

First of all, that makes no sense. Clearly, if someone gave a logical and detailed reason why no investigation was necessary, that would have likely made Heath rethink the entire story. So it makes no sense to say that he no longer wanted people to reach out to Heath. The only narrative that holds together is the one where the DOJ is totally embarrassed by its own failings and doesn't want the story published because of that. In the meantime, despite all these statements from Fallon, he's yet to reveal the magic answers that actually explain why no investigation was warranted. In fact, he's told Huffington Post that he's said everything he has to say already. And so far that's basically nothing that disputes the story.

And that just leaves a lot of people more convinced that not only was an investigation warranted, the DOJ's inability to recognize that, even today, calls into serious question the ability of the DOJ's ethics operations to, you know, be ethical. And let's not even begin to discuss the "ethics" of a DOJ spokesperson telling a reporter that he was withholding information (which now appears to not exist) that proves a story was incorrect.

Filed Under: brad heath, brian fallon, doj, ethics, fisc, investigation, nsa, nsa surveillance, office of professional responsibility, opr

The NSA Needs To Get In Front Of The Leaks: Stop Lying And Open Up

from the only-way-to-regain-trust dept

Bruce Schneier has yet another interesting article over at The Atlantic, in which he notes that the only real way for the NSA to regain trust is to get in front of the coming leaks by finally opening up. He makes a compelling case. First off, every time the NSA has tried to defend various leaks, its defenses have been shown to be lies or, at the very least, misleading, just days later. This is, in large part, because it still doesn't seem to have any idea what Snowden took. And in its usual fashion, it seems to hope that if it just keeps lying, or redefining words, that it will be able to get away with keeping stuff hidden. But that's clearly not working, and the public has pretty much lost all trust. The only real way to deal with that is to finally be honest for once. That doesn't mean making everything public, but having someone who can look through everything and see what's really going on.

It's time to start cleaning up this mess. We need a special prosecutor, one not tied to the military, the corporations complicit in these programs, or the current political leadership, whether Democrat or Republican. This prosecutor needs free rein to go through the NSA's files and discover the full extent of what the agency is doing, as well as enough technical staff who have the capability to understand it. He needs the power to subpoena government officials and take their sworn testimony. He needs the ability to bring criminal indictments where appropriate. And, of course, he needs the requisite security clearance to see it all.

We also need something like South Africa’s Truth and Reconciliation Commission, where both government and corporate employees can come forward and tell their stories about NSA eavesdropping without fear of reprisal.

Now, obviously, some will claim that there's so much the NSA does that needs to be kept secret -- and, that's true. Except for one little tidbit: Ed Snowden already walked out the door with much of this stuff and gave it to reporters. Meaning that most of it isn't likely to be kept secret very long. And that's why this is the only reasonable course of action, even if it goes against the NSA's general DNA.

Yes, this will overturn the paradigm of keeping everything the NSA does secret, but Snowden and the reporters he's shared documents with have already done that. The secrets are going to come out, and the journalists doing the outing are not going to be sympathetic to the NSA. If the agency were smart, it'd realize that the best thing it could do would be to get ahead of the leaks.

The result needs to be a public report about the NSA's abuses, detailed enough that public watchdog groups can be convinced that everything is known. Only then can our country go about cleaning up the mess: shutting down programs, reforming the Foreign Intelligence Surveillance Act system, and reforming surveillance law to make it absolutely clear that even the NSA cannot eavesdrop on Americans without a warrant.

In many ways, this is like the difference between real security and security by obscurity. If the NSA is confident in what it's doing and why it's necessary, it should be able to come out and show what's really happening, and the public can take an educated position on whether or not it's appropriate.

Filed Under: bruce schneier, ed snowden, investigation, lies, nsa, nsa surveillance, secrecy, transparency

Investigation Finds The UK's Spy Agency Did Not Break Any Laws When It Tapped Into PRISM Data

from the of-course-it-didn't...-nothing-ever-does dept

In case anybody thought UK's GCHQ may have broken a law or two by pulling data from the NSA's PRISM surveillance net, they can now set their minds at ease. Like every other surveillance program in the UK and the US, it's totally legal.

Parliament's intelligence and security committee launched an investigation into allegations Britain's GCHQ surveillance agency circumvented British laws protecting the privacy of communications by accessing data from the U.S. program.

"From the evidence we have seen, we have concluded that this is unfounded," said the committee.

That's a relief. For a little while, it looked as though sweeping data collection might be something that ran afoul of laws protecting citizens' privacy or other limitations put in place to prevent domestic intelligence agencies from spying on their countrymen. You know, the sort of restrictions that separated us from our Cold War rivals and current totalitarian regimes.

On the bright side, the GCHQ at least has the decency to show up with a warrant. Classy.

A thorough investigation had shown the reports GCHQ compiled using U.S. intelligence were put together legally, it said. The agency possessed a warrant for interception signed by a government minister each time it asked for information from the United States, it added.

Oh, wait. A "warrant for interception" is remarkably similar to a FISA court order.

All interception warrants are valid for an initial period of three months. Upon renewal, warrants issued on serious crime grounds are valid for a further period of three months. Warrants renewed on national security/economic well-being grounds are valid for a further period of six months. Urgent authorisations are valid for five working days following the date of issue unless renewed by the Secretary of State.

And they go after the same data.

For mobile telephony

the telephone number from which the telephone call was made and the name and address of the subscriber and registered user of that telephone;

the telephone number dialed and, in cases involving supplementary services such as call forwarding or call transfer, any telephone number to which the call is forwarded or transferred;

the date and time of the start and end of the call;

the service used to make the call;

details of the SIM and phone used to make and receive each call;

for pre-paid services the date, time and place of activation; and

the cell ID and location used for each call.

And having one conveniently available "each time" the GCHQ asked sounds familiar, too. More specifically, the report makes this statement:

Further, in each case where GCHQ sought information from the US, a warrant for interception, signed by a Minister, was already in place, in accordance with the legal safeguards contained in the Regulation of Investigatory Powers Act 2000.

"Already in place." A warrant pre-approval process, not unlike our "not a rubber stamp" FISA court approval process.

The process appears to be: if you'd like to grab some data, please stop by our offices during business hours to pick up a pre-filled out warrant. But don't worry. It's all legal and buttressed by plenty of "safeguards," just the way it is over in the US.

The takeaway is simple: the laws governing these surveillance programs are terrible if this is what they permit. Perhaps there will be some major changes in the future. But all of this would have remained unchallenged without Snowden's leaks. This just shows that, within our two governments, those who had direct knowledge were perfectly content with what was allowed. Even worse, they allowed expansions and reinterpretations of these laws in order to enable and encourage additional surveillance of domestic citizens.

Filed Under: investigation, legality, prism, surveillance, uk