Baltimore PD Has Deployed Stingray Devices Over 4,300 Times, Instructed By FBI To Withhold Info From Courts

from the 'to-sever-and-deflect' dept

Say what you will about the Baltimore PD and its cell tower spoofers (like... "It would rather let accused criminals go than violate its [bogus] non-disclosure agreement with the FBI…" or "It hides usage of these devices behind pen register/trap and trace warrants and then argues the two collection methods are really the same thing…"), but at least it's making sure the hundreds of thousands of dollars it's spent on the technology isn't going to waste.

On Wednesday, Baltimore police Det. Emmanuel Cabreja said the department has deployed the device, called Hailstorm, and similar technology about 4,300 times since 2007.

As the AP notes, the number of deployments admitted to here is the largest ever made public. This doesn't necessarily mean the rate of usage (more than once a day, on average) is out of the ordinary, however. Thanks to the very restrictive non-disclosure agreement the FBI forces law enforcement agencies to sign (while falsely claiming "the FCC made us do it!"), information on cell tower spoofers has very rarely been disclosed.

Det. Cabreja confirmed the ultra-restrictive terms of the FBI's NDA, which forbids law enforcement agencies from producing any information on Stingray devices, no matter who's asking for it.

Cabreja said under questioning from defense attorneys that he did not comply with a subpoena to bring the device to court because of a nondisclosure agreement between the Baltimore police and the Federal Bureau of Investigation.

“Does it instruct you to withhold evidence from the state’s attorney and the circuit court of Baltimore city, even if upon order to produce?” asked defense attorney Joshua Insley.

“Yes,” Cabreja replied, saying he spoke with the FBI last week about the case.

There's nothing quite like hearing confirmation that two law enforcement agencies worked together to withhold information from a party being prosecuted by directly violating a court order. But it gets even better. The Baltimore PD's NDA was made public, and it shows the State's Attorney's office signing off on withholding Stingray information from judges and defendants, as well as agreeing to toss cases if exposure seems unavoidable. In contrast, the Erie County Sheriff's Department's agreement obtained by the NYCLU only contained signatures from law enforcement officials.


The courts -- at least in Baltimore -- seem to be tiring of this secrecy. Baltimore judge Barry Williams has previously questioned the Baltimore PD's citation of its non-disclosure agreement with the FBI, with one memorably pointing out that the PD "doesn't have a non-disclosure agreement with this court." Unfortunately, if the Baltimore PD prioritizes its NDA over its obligation to obey court orders and turn over requested evidence, then it does actually have an NDA "with the court," albeit one the court never agreed to. If the FBI says Stingray info isn't going to be turned over -- no matter who's asking for it -- that information will remain hidden, even if it means tossing criminal cases.

Filed Under: baltimore, baltimore police, doj, fbi, imsi catcher, nda, secrecy, stingray, surveillance, transparency
Companies: harris corp.

New Documents Show FBI Instructing Law Enforcement To Throw Out Cases Rather Than Give Up Info On Stingray Use

from the in-order-to-ensure-the-public's-safety,-we-must-compromise-the-public's dept

Documents obtained by the New York ACLU (via a lawsuit, naturally) provide more details on the FBI's efforts to cover up usage of Stingray devices. Back in February, an FBI memo obtained by the Minnesota Star Tribune stated clearly that the agency required all public records requests for Stingray documents be routed through it.

This agreement between the FBI and the Erie County (NY) Sheriff's Department is even more restrictive. It opens up with the FBI repeating one of its lies in hopes of making the highly-restrictive agreement following it seem less like federal bullying and more like just one of those unfortunate byproducts of pesky regulation.

Consistent with the conditions on the equipment authorization granted to Harris Corporation by the Federal Communications Commission (FCC), state and local law enforcement agencies must coordinate with the FBI to complete this non-disclosure agreement prior to the acquisition and use of the equipment/technology authorized by the FCC authorization.

This paragraph is apparently included in every FBI/Stingray agreement and, according to the FCC, it's all a bunch of BS. The FCC may require coordination with the FBI prior to the purchase of Stingray equipment, but it does NOT require the signing of a non-disclosure agreement. Here's its reply to an FOIA requester seeking the text of this supposed FCC requirement.

We do not require that state and local law enforcement agencies have to complete one or more non-disclosure agreements with the Federal Bureau of Investigation prior to acquisition and/or use of the authorized equipment. We have no documents responsive to your request.

So, the FBI opens with a lie, and then moves on to instructing law enforcement agencies to lie about their Stingray usage... to damn near everybody.

In order to ensure that such collection equipment/technology continues to be available for use by the law enforcement community, the equipment/technology and any information related to its functions, operation, and use shall be protected from potential compromise by precluding disclosure of this information to the public in any manner including but not limited to: in press releases, in court, during judicial hearings, or during other public forums or proceedings.

The government wants law enforcement agencies to lie to the courts -- which includes lying to judges, prosecutors and defendants. Everyone is included. This is made even more explicit a few paragraphs later.

The Erie County Sheriff's Office shall not, in any civil or criminal proceeding, use or provide any information concerning the Harris Corporation wireless collection equipment/technology… beyond the evidentiary results obtained through the use of the equipment/technology including, but not limited to, during pre-trial matters, in search warrants and related affidavits, in discovery, in response to court ordered disclosure, in other affidavits, in grand jury hearings, in the State's case-in-chief, rebuttal, or on appeal, or in testimony in any phase of civil or criminal trial, without the prior written approval of the FBI.

In short: parallel construction. The Sheriff's Office can hand over the results of Stingray collections, but not divulge how it arrived at these results. If it's going to deploy a Stingray, it either needs to do it without a warrant, or mislead the judge on its search techniques when applying for one.

When not lying to judges, the Sheriff's Office will need to lie to defendants and their counsel. Most incredibly, the FBI instructs the law enforcement agency to directly disobey court orders, if it would mean turning over Stingray information.

If any of this seems unavoidable, our nation's top law enforcement agency encourages its colleagues to toss out criminal prosecutions rather than risk exposing Harris Technology's equipment.

In addition, the Erie County Sheriff's Office will, at the request of the FBI, seek dismissal of the case in lieu of using, or providing, or allowing others to use or provide, any information concerning the Harris Corporation wireless collection equipment/technology [...] if using or providing such information would potentially or actually compromise the equipment/technology.

With one caveat…

This point supposes that the agency has some control or influence over the prosecutorial process.

But what a caveat. This is the FBI stating that it assumes any law enforcement agency it enters into this agreement with can easily push prosecutors to drop cases. It naturally follows that this sort of influence would also allow law enforcement agencies to push questionable prosecutions forward, if so inclined.

If the law enforcement agency doesn't have that kind of pull, the FBI suggests they make rogue prosecutors sign on the dotted line as well.

Where such is not the case, or is limited so as to be inconsequential, it is the FBI's expectation that the law enforcement agency identify the applicable prosecuting agency, or agencies, for inclusion in this agreement.

And the lies being told by the Erie County Sheriff's Department have already been numerous. As the NYCLU points out, a court order for the deployment of the devices was obtained only once in the 47 incident reports returned as responsive documents -- which isn't what Sheriff Howard said when (mostly not) answering questions about his office's Stingray use last May:

Howard said the machines are used under "judicial review" in all criminal matters.

Well, obviously not. And for that matter, the Sheriff's Office isn't performing much oversight on its own. The NYCLU requested several more Stingray-related documents, including department policies, warrant applications, agreements with communications providers and records concerning the technology's use in investigations. None of these requested documents were withheld. They simply did not exist. The NYCLU sees this as extremely odd:

This leaves us puzzled. Either the $200,000 device is just sitting around somewhere without being used or the agency is using the device without creating and maintaining records.

The latter is more probable, especially in light of the FBI's restrictive non-disclosure agreement. There's no better way to avoid violating that agreement than simply not creating any records that might somehow find their way to the many venues the FBI has listed as off-limits.

What it all boils down to is this: the FBI believes it is more important to protect law enforcement technology than protect the public. It says toss out prosecutions if it might compromise Stingray specifics and actively withhold information from every other participant in the justice system -- from defendants seeking information in discovery all the way up to every judge, at every level, presiding over these cases. The first potentially puts dangerous criminals right back out on the street. The latter guts the protections built into the system. Neither of these are done in the public's interest, and as far as these documents go, the public is way, way down on the FBI's list of priorities. The same goes for law enforcement agencies that willingly sign these agreements.

Filed Under: doj, erie county, erie county sheriff's department, fbi, secrecy, stingray
Companies: aclu

TPP Talks Hung Up On Intellectual Property Issues: Maybe Just Drop That Section

from the just-a-suggestion dept

For years, we've wondered (somewhat rhetorically*) why "intellectual property" issues are included in "free trade agreements" at all. By their very nature, intellectual property laws are the exact opposite of free trade. They are clearly protectionist restrictions on the use of information or content. You can argue that these restrictions serve a good reason, and that may (or may not) be true. But you can't argue that they have anything to do with free trade (at least not if you're being honest).

* Okay, so we actually know why they're included, and it's because the big legacy special interests in the intellectual property world -- including the recording, movie and pharmaceutical industries, long ago realized that by getting intellectual property included in trade agreements they could force countries to pass laws they didn't want. That's because these trade agreements are conducted in near total secrecy, taking input directly from these industries, but then effectively binding countries to pass the new laws that these industries want. The wonderful, but depressing, book Information Feudalism by Peter Drahos and John Braithwaite goes deep in exploring how those big industries first began this effort -- and it's only gotten more intense in recent years.

And, of course, now that these industries have convinced trade negotiators that intellectual property is somehow a trade issue, it's been a central issue in a variety of big trade agreements, including the TPP and TAFTA/TTIP. TPP, the Trans Pacific Partnership agreement, is the one that's much further along, and despite promises that it would be completed quite a while ago, it's still limping along. Apparently, at the most recent meeting the main stumbling block was... intellectual property.

Yes, it appears the countries are still fighting over the intellectual property chapter in the agreement:

In the meeting from March 9, they tried to reach compromises in seven contentious areas but remained apart on intellectual property protection periods for data on medicines.

Of course, there's a simple solution here: drop the IP chapter from the TPP and focus on whatever (small) issues are actually holding back the rest of the agreement. If you're going to create a trade agreement, why not have it focus on actual trade issues, rather than on increasing protectionist barriers that serve giant legacy industry players, but at the expense of the public?

Filed Under: intellectual property, japan, secrecy, tpp, transparency

USTR Pushes Congress To Approve Trade Deals... But Threatens Reps With Criminal Prosecution If They Tell The Public What's In Them

from the transparency! dept

For years now, we've been trying to understand why the US Trade Rep (USTR) is so anti-transparency with its trade negotiations. It insists that everything it's negotiating be kept in near total secrecy until everything is settled, and the public can no longer give input to fix the problems in the agreement. It's a highly questionable stance. Whenever this criticism is put to the USTR directly, it responds by saying that it will listen to anyone who wants to come and talk to the USTR. But, as we've explained multiple times, "listening" is about information going into the USTR. "Transparency" is about information coming out of the USTR. They're not the same thing by any stretch of the imagination.

As the fight over new trade agreements gets louder and louder, a key stumbling block is having Congress approve so-called "fast track authority" or "Trade Promotion Authority," which basically means that Congress can't even jump in to try to fix the problems in whatever the USTR negotiates -- it can only give a straight "yes" or "no" vote on the entire package. For reasons that aren't entirely clear, Congressional Republicans are all for this, even though it means directly giving up Congress's Constitutional authority to a President that the Republicans appear to hate. Meanwhile, Democrats seem reasonably skeptical of these new trade deals.

So the White House and the USTR have been pushing a charm offensive on Congressional Democrats concerning these trade deals, but the charm offensive also comes with this rather startling statement: if you reveal what we're telling you, you may go to jail:

As the Obama administration gives House Democrats a hard sell on a major controversial trade pact this week, it will be doing so under severe conditions: Any member of Congress who shares information with the public from a Wednesday briefing could be prosecuted for a crime.

Yes, the USTR has declared that the briefing is entirely classified. Why? Mainly to keep the details secret from the American public. As Rep. Alan Grayson notes:

"It is part of a multi-year campaign of deception and destruction. Why do we classify information? It's to keep sensitive information out of the hands of foreign governments. In this case, foreign governments already have this information. They're the people the administration is negotiating with. The only purpose of classifying this information is to keep it from the American people."

The USTR's lame response to all of this is that any member of Congerss is allowed to come to its office and see the text of the negotiating documents. But that's misleading in the extreme. As we've discussed before, the USTR tells elected officials that they can't copy anything, take any notes, or even bring staff experts on trade agreements (or related issues)... even when those staffers have security clearance.

We pointed out this was a problem back in 2012 and it appears to be ongoing. The Huffington Post article above quotes Rep. Rosa DeLauro who appears to be having the same problem:

"Even now, when they are finally beginning to share details of the proposed deal with Members of Congress, they are denying us the ability to consult with our staff or discuss details of the agreement with experts. This flies in the face of how past negotiations have been conducted and does not help the Administration’s credibility. If the TPP would be as good for American jobs as they claim, there should be nothing to hide."

Rep. Lloyd Doggett also seems amazed that his staffers with security clearance are blocked from getting information about the TPP agreement:

"I tried to find out what level of classification applies," he said. "Can my top cleared staff read it? If he can hear about ISIS, is there something in here that prevents him from seeing these trade documents?"

It really does make you wonder, once again, just what is the USTR hiding here? There is simply no reason to keep these details secret -- except if you know that the American public won't approve of them.

Filed Under: classified, congress, fast track, secrecy, tafta, tpp, trade promotion authority, transparency, ttip, ustr

Unlisted Publishing And The Burner Account: Responses To Online Surveillance?

from the it's-a-post-snowden-world dept

One of the consolations of spending far too much time online is that you get to witness the birth of new ideas and new terms, along with new uses of existing ones. On Medium, Chris Messina points out two recent examples of creative re-purposing of older ideas and words. The first is the apparently trivial idea of "unlisted" content:

My first personal experience with "unlisted” content online was likely on YouTube. Making a video unlisted means that only people who have the link to the video can view it. It also means that the content won't be broadcast to followers, or appear on the creator's public profile. This is known as security through obscurity since the video isn't secret, it's just hard to find. An unlisted video can be viewed without requiring authentication.

Services seem to offer "unlisted" publishing to simplify sharing while providing more flexibility. It's a pragmatic solution to address the challenge that what people think they want (i.e. 100% secrecy and control) isn't in practice what they're willing to put up with. It comes down to behavioral economics: if the value of keeping something secret is less than the frustration caused by maintaining its secrecy, people will route around the system designed to keep the thing secret.

As he points out, in addition to YouTube, "unlisted" services are now available from Flickr, Dropbox, Google Drive, Vimeo and Medium. His other cultural find is at a much earlier stage of its development: the "burner account."

Like most people, "burner" connoted cheap, prepaid, disposable phones used by drug dealers to evade surveillance to me.

...

It's not the phone that the drug dealers care about  -- it's the repudiability. A burner essentially makes fungible the association between an attribute (like a phone number) and an individual. This is important. Whereas a social security number is used as a lifelong attribute (and is therefore not fungible), a phone number is useful as an identifier only as long as the owner chooses to keep it. Once the number has served its owner's purpose, it can be recycled back into the pool of available numbers without being traceable to the former owner.

As an example of its evolution, he cites a product called simply "Burner," created by a friend of his:

Burner is your "other" number -- a smart privacy layer for the smartphone era, giving users the power to take control of their communications and personal data.

Enabling users to obtain and manage additional phone numbers for voice, SMS, and MMS communications, Burner is fast, safe and private. Burner lets users get as many numbers as they want, use each as a private line on an iPhone or Android phone, and keep numbers indefinitely or 'burn' numbers they no longer need.

But Messina points out that the meme is beginning to spread beyond a single product:

I recently noticed that [Gawker Media's] Kinja has adopted the "burner" nomenclature for anonymous commenting on its site -- the first example I've seen of this language being used on the web

As well as their intrinsic value in extending the online ecosystem in novel ways, it's interesting that both "unlisted" publishing and "burner" accounts are about giving people more control over who knows what they are doing on the Internet, including the ability to hide it in different ways. Maybe that desire for privacy is a response to Snowden's revelations that we don't actually have as much of it as we thought.

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

Filed Under: burner, privacy, secrecy, unlisted

Baltimore Prosecutors Withdraw Evidence Rather Than Talk About Police Department's Stingray Usage

from the should-go-back-to-simpler-days-of-planting-evidence-and-falsifying-reports dept

They justify the use of Stingray devices (IMSI catchers/cell tower spoofers) by pointing out how great they are at catching criminals. They justify the secrecy surrounding them by claiming the release of any details will compromise investigations. And then they pull something like this.

Baltimore prosecutors withdrew key evidence in a robbery case Monday rather than reveal details of the cellphone tracking technology police used to gather it.

So… great for catching crooks but not all that great at keeping them caught. How embarrassing. That has to suck for Baltimore citizens, who have just discovered their local PD prizes non-disclosure agreements over putting bad guys away.

City police Det. John L. Haley, a member of a specialized phone tracking unit, said officers did not use the controversial device known as a stingray. But when pressed on how phones are tracked, he cited what he called a "nondisclosure agreement" with the FBI.

Which most people would take to mean don't go around spilling the details to normal citizens, family members or journalists. But as we've seen repeatedly, law enforcement agencies have taken this FBI-required NDA to mean (very conveniently, I might add) that they're allowed to tell no one. Goodbye, crusty old "due process" ideals. Hello, parallel construction.

But in this case, the judge responded with an obvious statement -- one that is made far too infrequently.

"You don't have a nondisclosure agreement with the court," Baltimore Circuit Judge Barry G. Williams replied.

Then Judge Williams called the PD's bluff: explain the evidence's origin or face contempt charges. Faced with this, the prosecution folded.

It's no secret the Baltimore Police Dept. has a Stingray device. Here's a document from 2009 containing the city council's approval of the Stingray purchase. Here's another document showing the PD's request for additional funds to upgrade the device. The general public is already aware of the device's existence and capabilities, and yet, the police balk at discussing it publicly, even if it means potentially damaging a prosecutor's case.

It's not just the phone-related evidence that's being withdrawn. It's everything derived from that Stingray-related search, including a handgun.

This isn't Judge Williams' first experience with police officers unwilling to discuss Stingray usage. The Baltimore Sun reports he also dealt with a non-discussion of the technology back in September. The device was used to track a phone (and a suspect) to a certain location. When Williams asked how the officers ascertained that the suspect actually had the phone on him, they actually invoked national security rather than answer the question.

"This kind of goes into Homeland Security issues, your honor," [Sgt. Scott] Danielczyk said.

Williams nailed this response, too.

"If it goes into Homeland Security issues, then the phone doesn't come in," Williams said. "I mean, this is simple. You can't just stop someone and not give me a reason."

That's how this is supposed to work. If law enforcement agencies want to deploy super-secret technology, then they shouldn't be able to drag evidence of unexplained origin into the courts with them. Allowing them to have it both ways steamrolls due process.

Filed Under: baltimore, courts, non-disclosure, secrecy, stingray, surveillance

District Court Orders Release Of Another DOJ Drone-Killing Memo, Cites [REDACTED] In Support

from the reading-between-the-deletions dept

New York's Southern District Court -- which has been hosting (along with the Second Circuit Appeals Court) the ACLU and New York Times' long-running, concurrent FOIA lawsuits against the government over its drone killing memos -- has reached a partial decision on some of the embattled documents.

The court's decision was actually delivered on Sept. 30th, but its conclusion and order have spent the last month under seal while the government applied its redactions. An accompanying memo from the presiding judge [pdf link] notes that the court isn't buying all the government's redaction arguments.

I disagree with the Government's redaction of the bulk of the first full paragraph and the second and third paragraphs on page 9, which as drafted by this court contain not a whit of classified material (the Government does not suggest otherwise), and which I do not believe would tend to reveal any classified information. In order to preserve that issue for appellate review, I will release on the public docket the opinion with all the Government's proposed redactions today, along with this cover note indicating my conclusion about this material. Should the Second Circuit agree with the Government that the material was properly redacted, nothing will be lost; should it agree with my view that nothing the Government has redacted on page 9 should be redacted, it will so indicate.

Indeed, page 9 of the order [pdf link] leaves almost everything to the imagination, retaining only a single sentence that really makes you wish the court hadn't deferred to the government's judgement.

The issue raised by the Government's objection to disclosure is potentially fascinating and incredibly complicated.

The rest of the document is the government's proprietary blend of abysmal scanning and heavy redactions. After some discussion about documents the government has already released and information revealed by government officials' own statements, the court drills deeper into the DOJ's redaction justifications. Of course, we can't actually read the government's reasoning or the court's reactions because the government has final cut approval. The DOJ's broad redactions remove a majority of the last 14 pages, leaving behind tantalizing sentences like:

The Government's blithe assertion to the contrary, these waiver issues are not so easily resolved

and:

if that be true, I see no reason why I am even going through this exercise.

The court orders the government to release the contested documents (legal opinions from the DOJ's Office of Legal Counsel) discussed in the order (the remaining documents related to the FOIA requests will likely be discussed next year), noting there is "no just reason for delay" considering both the public's interest in these memos, as well as the fact that it has been more than three years since the documents were requested.

So, another long-running FOIA lawsuit is showing a little return on investment. Unfortunately, the government's lengthy redactions prevent the public from seeing what arguments it's using in defense of its FOIA stiffarm, as well as keeping it from drawing any legal insight from the court's response.

Filed Under: classified, drones, extrajudicial killing, foia, killing, redacted, secrecy, transparency

New Zealand's Trade Minister Admits They Keep TPP Documents Secret To Avoid 'Public Debate'

from the who's-ill-informed? dept

A couple years ago, then US Trade Representative Ron Kirk explained why the negotiating text of trade agreements like the TPP needed to be kept secret: because if the public debated it, the agreement probably wouldn't be approved. He used, as an example, a failed trade agreement where the text had been public. Beyond the "small sample size" problem of this explanation, the much more troubling aspect is the obvious question of recognizing that if public debate would kill the agreement, perhaps it's the agreement that's the problem and not the public.

Apparently, New Zealand's current Trade Minister, Tim Groser, feels similar to Kirk on this issue. During a question and answer period, he was asked why he won't share the draft texts with, say, medical professionals for input, given that the current leaks suggest it would be a disaster for public health. Groser's answer is quite telling, in that he admits that he fears the public debate, because it would be "misinformed."

Hon Phil Goff : When the Minister has the right under Trans-Pacific Partnership rules to provide negotiating texts in confidence to relevant groups outside the Government, why has he not taken advantage of that right to ensure that core groups like medical professionals are properly informed about the issues under negotiation?

Hon TIM GROSER : We are trying to make this negotiation a success, and the member is well aware that there is some quite heavy politics here and that full disclosure to certain parties is likely to lead this to go immediately into the public debate on an ill-informed basis before the deal has been done. We are very conscious of the interests of New Zealanders in protecting themselves from such legislation, and we will continue to take a very responsible approach in this negotiation.

Goff immediately tries to point out that Groser does not, in fact, answer his question, but is cut off by the Speaker of the Parliament who claims that the question has been "addressed."

Groser's response is revealing. First, he doesn't actually answer the question. Goff doesn't ask him about revealing it to the public, but merely "medical professionals." Groser is the one who leaps to the conclusion that sharing the text with medical professionals will result in public debate. Why would that be the case unless the issues in the document are so severe and so concerning to those medical professionals that they would feel the need to leak the document to the public?

Second, going back to the point concerning Ron Kirk's comment: if you're going to lose the public debate, then perhaps it's the agreement that's the problem, rather than the public debate. If these agreements are so good and important, then why can't Groser and others present that information to the public so that they're not "ill-informed." Yes, these are draft texts and not the final ones, but there are other forums in which such draft text negotiations are done publicly, and it hasn't been a problem. It's only in these international trade agreements where the final product is only revealed to the public after it's too late to make any changes or get any input from the public who is most impacted.

Filed Under: new zealand, public, public good, ron kirk, secrecy, tim groser, tpp, trade, transparency, ustr

Feds Want To Keep A Big Part Of Their Argument Against Lawsuit Over Internet Spying A Total Secret

from the because-nsa dept

The big Jewel v. NSA case is still moving forward. This is the pre-Snowden lawsuit against the NSA over its tapping of fiber optic cables. We now understand that this was part of what the NSA refers to as "upstream collection" under Section 706 of the FISA Amendments Act, but most of us recognize it for what it really is: and that's snooping on tons of internet backbone traffic in the hopes of finding something interesting. This broad "upstream" collection is immensely problematic, and the Justice Department has bent over backwards time and time again trying to kill the case -- without success so far. The EFF has recently filed its latest reply brief (pdf) in support of its motion for a partial summary judgment, responding to the government's (not surprising) opposition (pdf). The EFF has a clear summary of its arguments on its blog, which is worth reading. Here are two key arguments. First, making it clear that snooping on internet traffic is a form of "seizure" raising the 4th Amendment question:

We explain that the act of copying entire communications streams passing through splitters at AT&T facilities is an unconstitutional seizure of individuals’ “papers” and “effects.” This should be obvious—our “papers” today often travel over the Internet in digital form rather than being stored in our homes—but the government contends that unless it physically interferes with individuals’ possession of some tangible property, it cannot “seize” anything. This is not so. If it were true that conversations could not be “seized” except by taking possession of physical objects, all warrantless wiretapping (where “recording” is a form of “copying” communications) would be constitutional.

This argument is especially troubling in the Internet age, since the government appears to be claiming that it could make a copy of all Internet communications as long as it did so without physically taking possession of any storage media. No way. The Fourth Amendment doesn’t protect just tree pulp or hard drives. It protects your ability to have control over who sees the information carried in your papers and effects. And by copying everything, the government is plainly “seizing” it.

And also, hitting back on the ridiculous "special needs" argument that the DOJ really likes these days:

The government's dangerous “special needs” argument, which apparently the Foreign Intelligence Surveillance Court of Review adopted with regard to the targeted surveillance objected to by Yahoo!, is something the Internet public needs to be aware of. The government is essentially claiming that because there are bad foreign actors online, it should get a free pass from complying with the Constitution whenever it claims a “foreign intelligence” need, and that it gets to do so regardless of how many innocent Americans may be caught up in its net. Or to put it more bluntly, the government is basically saying that its intelligence needs should trump the Constitution, and that no one using the Internet should be able to have a private conversation or engage in private web surfing or information gathering without the government having access.

However, there's another separate filing which the EFF's blog post just mentions in passing, but which I think may be even more interesting. It appears that, in addition to its initial opposition brief, the government also filed some other information in secret, raising serious due process questions. Thus, EFF is looking to strike those secret filings (pdf) from the record:

The filing of an ex parte, in camera memorandum of points and authorities is improper. The government has submitted the classified declaration of “Miriam P.”, and there is no legitimate reason for the government to supplement that secret evidence with the aid of a secret brief that it has privately provided to the Court. The government has repeatedly argued its assertion of the state secrets privilege in public briefing throughout the history of this case. Moreover, to the extent the secret brief argues the merits of plaintiffs’ Fourth Amendment claims, it has no possible justification at all. The government has not attempted to demonstrate that any possible good cause exists that could justify the extraordinary violation of due process created by its submission of private, secret legal argument—let alone that such good cause exists here.

As the filing notes, even in cases where parties are allowed to file documents in secret, they first need to effectively get permission from the court, and the DOJ didn't bother -- it just "nonchalantly" waltzed in and gave the court the documents in secret.

Even if a secret submission had some legitimate basis, the government was required to make an administrative motion pursuant to Local Rule 7-11 seeking leave to file a secret ex parte, in camera brief before it filed any such brief. On such a motion, the government would have had the burden of demonstrating both legal authority and good cause to support its secret filing. Instead, the government nonchalantly filed its secret ex parte, in camera brief here as if it were a matter of right, depriving plaintiffs of any opportunity to oppose the motion. Plaintiffs would have opposed any such motion. Because the government’s conduct prevented plaintiffs from objecting prior to the filing of the government’s secret brief, plaintiffs now move to strike it after the fact.

Plaintiffs are aware of no statute, rule, or other authority permitting the government to file legal argument to which plaintiffs do not have access and to which plaintiffs cannot reasonably respond, as it has done here, nor is there any good cause for filing a secret, ex parte, in camera brief here. Although there is authority allowing the filing of an ex parte, in camera official factual certification in support of a claim of state secrets privilege, that authority does not permit the government’s secret legal briefing here. And in fact, there is good cause to reject the government’s filing: the government’s filing of a secret brief is contrary to the state secrets privilege doctrine and to fundamental notions of due process....

Yet again, we see how the government handles these kinds of cases. Deny, obfuscate and hide. It's as if the DOJ has such a weak argument that it really doesn't want to make it publicly, because it knows it will lose.

Filed Under: jewel v. nsa, nsa, secrecy, section 706, surveillance
Companies: eff

5,000 Domains Seized Based On Sealed Court Filing; Confused Domain Owners Have No Idea Why

from the that-seems-problematic dept

In the past, we'd been fairly worried about governments seizing website domains with little or no notice, but it's perhaps equally, if not more, troubling when it's done by private individuals and companies. This was one of our concerns with the original version of SOPA, which included a "private right of action." But, even though SOPA never became law (and the private right of action was dropped fairly early on), it appears that some courts are still allowing this to happen. Just a couple of months ago, we wrote about a troubling ruling in an Oregon district court that let a Filipino entertainment company seize a bunch of domains, in a process that was done under seal. In the past, we've seen other brands, like Chanel do the same thing. Louis Vuitton has also tried seizing domains.

The latest such example seems especially troubling because no one has any idea what's fully happening, but it appears to involve Chan Luu, a jewelry and clothing retailer. The Internet Commerce Association notes that approximately 5,000 domains appear to have been seized, handed over to a private "receiver" who is now trying to sell those domains -- for no clear reason. One of the victims, Michael Berkens, who lost some of his domains, has explained what little details he's been able to find out:

Overnight I received a notice that several domain names I owned were transferred by a sealed court from Verisign without notice and of course without the court order.

The domain names just were transferred by Verisign to another domain and are now listed for sale at another marketplace.

Another domainer sent me an identical notice he received overnight on domain names he owned.

The Domain names are now all owned by COURT APPOINTED RECEIVER – ROBERT OLEA and have been moved to Uniregisty as the registrar and are now listed for sale at domainnamesales.com

The only information that Berkens received was the following email:

Please be advised that Verisign has changed the registrar of record for certain domain names pursuant to a ***SEALED*** court order.

The domain names identified below were affected by this action.

Alexander the Great, LLC
—————————————————————————–
RETRACTIT.COM

If you have any questions relating to these actions, please contact:

David J. Steele
Partner, Christie, Parker & Hale LLP
Adj. Professor of Law, Loyola School
18101 Von Karman Ave, Suite 1950
Irvine, CA 92612-0163
office: +1 (949) 476-0757
direct: +1 (949) 823-3232
fax: +1 (949) 476-8640
email: david.steele@cph.com

Thank you very much,
The Verisign Transfer Dispute Team””

transfers@verisign-grs.com

Others have tracked down that it has something to do with this case, but with the details under seal, it's all a bit of a mess. Here's Phil Corwin from the Internet Commerce Association:

The only other available facts that we are presently aware of are that a copy of the “Clerk’s Certification Of A Judgment To be Registered In Another District” issued by the U.S. District Court for the Central District of California in the case of Chan Luu Inc. v. Online Growth, LLC et al is available at the Justia website, and the order was registered in the Florida Middle District Court. The other defendants in the case are “Grant Shellhammer et al”. There was a considerable time lag in this proceeding, with the original judgment entered in California on May 23rd, the certification dated September 8th, and the domain transfers occurring around October 2nd. The damages granted to plaintiff are $200,000 plus interest, court costs and attorney fees; we note that there is a strong possibility that the domains transferred in this case may have an aggregate market value far in excess of that total judgment, and that is likewise disturbing. The California court document covers domains that are identical or confusingly similar to Plaintiff’s CHAN LUU mark – but we’re not sure if the domain cited by Mike in his article, RETRACTIT.COM, or any of the other transferred domains fit in that category. Chan Luu is a retailer of jewelry, accessories, and ready-to-wear clothing based in Los Angeles, and so far as can be discerned makes no commercial use of the term “retractit”, so it is unclear why that domain was covered by the court order.

This is problematic on many, many levels -- and is exactly why we've been so concerned about any process that allows for domain seizures without any sense of due process. In this case, with all the details under seal and the domain owners having their websites simply ripped away from them with no explanation at all, it should raise serious questions about why courts are allowing this to occur. To take domain names away from people who aren't even parties to a lawsuit, based on a sealed document, and then to immediately put them up for resale seems sketchy beyond belief.

Filed Under: domain seizures, domains, due process, michael berkens, secrecy, trademark, transparency, under seal
Companies: chan luu, verisign