Press Realizing That ICE May Be Breaking The Law Showing NBC Universal Propaganda Films On Domains It Seized

from the oops dept

Over the last year or so, we've been one of the few publications out there following the exceptionally questionable use of NBC propaganda material by the federal government as if it were its own content. You may recall that NBC Universal created some propaganda "anti-piracy" PSAs for New York City, in which actor/comedian Tom Pappa claims "there's no such thing as a free movie." The irony that he's saying so while appearing on a free YouTube video stream is apparently totally lost on him.

A few months later, the same video, minus references to NYC, appeared on the YouTube page of the Immigrations & Customs Enforcement group ICE (part of Homeland Security). No reference was made to the fact that the video was created by NBC Universal. A few weeks later, these videos started appearing on domains that ICE had seized, and then forfeited.

After filing a series of Freedom of Information Act requests, we found out that the videos were property of NBC Universal -- something that ICE (to this day) refuses to disclose. Further FOIA requests turned up no records of ICE ever properly licensing the video.

Already, this should be exceptionally troubling. ICE running corporate propaganda without any disclosure? And doing so on websites it had seized under questionable legality?

Turns out the story gets even worse. Jeff Roberts over at PaidContent notes that, under civil forfeiture procedures, the federal government must sell or destroy forfeited property. It cannot keep it and use it for itself. It does not appear to be legal to make use of the property for other purposes -- and certainly not for spreading corporate propaganda without disclosure.

The article also points out, quite reasonably, that it seems odd that ICE is using these videos -- which present a ridiculously inaccurate and one-sided argument that "piracy" is taking away movie industry jobs -- on web sites seized & forfeited for trademark violations. That seems extra weird. The sites have nothing to do with downloading movies, as the video discusses. And do the big brand companies that urged ICE to seize these domains to "protect their trademarks" really feel comfortable with the federal government now running NBC Universal propaganda on those domains instead?

Filed Under: forfeiture, government, ice, psa, seizure

Justice Department Drops Its Request To Be Allowed To Lie In Response To FOIA Requests

from the now-it'll-just-lie-without-permission? dept

After taking a pretty widespread public mocking for its proposal to lie to people when receiving requests for documents it didn't want to give out, the Justice Department says it is dropping that plan. As you may recall, the Justice Department wanted to be able to say that documents didn't exist, even if they did. In the past, the DOJ has been able to say that it "cannot confirm or deny" the existence, which might force people to file suit to find out about certain documents. However, the DOJ wanted to deny their existence entirely, even when they did, in fact, exist. For rather obvious reasons, this troubled people.

Of course, the DOJ's capitulation is done rather petulantly. While it admits that, having heard the comments to its proposal, its suggested language "falls short" of the necessary transparency, it still defends the basic idea behind lying to the public, while denying that it's lying. It first notes that the practice of responding with "there exist no records responsive to your FOIA request" even if there were such records, has been in place since 1987, under the guidance of then Attorney General Ed Meese. And then they try to explain how that's not lying:

The logic is simple: When a citizen makes a request pursuant to the FOIA, either implicit or explicit in the request is that it seeks records that are subject to the FOIA; where the only records that exist are not subject to the FOIA, the statement that "there exist no records responsive to your FOIA request" is wholly accurate....

It then insists that this practice is never "lying," but that the DOJ will try to come up with ways to be more transparent. Somehow, I'm not sure I believe that will really happen.

Filed Under: foia, government, justice department, lying

The Difficulty In Holding The Gov't Accountable When It Breaks The Law

from the incredibly-difficult dept

We've discussed in the past how the US government likes to use claims of sovereign immunity or national security to avoid being held accountable (and/or to hide the details). This opens the system up to widespread abuse, and it's hard not to imagine that's happening. Even if the vast majority of government workers are good and honest people, the system is structured with so little recourse, that it's impossible not to expect massive abuses of power.

In one recent case, we wrote about an EPA agent who pretty much made up an entire case against a guy, Hubert Vidrine, mostly because it allowed the EPA agent to spend more time with his mistress, with whom he was working on the case. While that's one rare example of the government being held accountable (it had to pay the guy), Vidrine's lawyer wants the world to know that the legal system is basically set up to stymie every effort by folks like Vidrine to respond to bogus criminal charges by the government. The lawyer, Gary Cornwell, was kind enough to pass along a letter he recently sent to Senator Rand Paul, following the Vidrine verdict. That letter is embedded below, but there are a few highlights.

First, he points out that while the facts of the case are certainly unusual, it's unfair to say that such abuses aren't common. The fact is, we just don't know, and the system makes it extremely difficult for anyone like Vidrine to fight back, even when there has clearly been a completely arbitrary and malicious prosecution:

I write principally to convey to you my disagreement with the suggestion of David Uhlmann, former chief of the environmental crimes section at the Justice Department, as reported in the New York Times on October 4, 2011, that "fortunately, this is an isolated situation." This probably is an unusual case; but not because it reflects an isolated problem. More probably, it is an unusual case because the Federal Tort Claims Act discourages lawyers from filing malicious prosecution cases.

When Mr. Vidrine came to me in September, 2005, I filed an administrative claim with the Department of Justice, as required by the Federal Tort Claim Act. By July, 2007, DOJ had failed (for nearly two years) to take any action on the claim, so I filed the civil suit in federal court in Lafayette, LA. I then fought with the government for over 3 ½ more years to get access to the EPA/FBI files documenting the perjury and other acts used by government agents to secure an indictment in December, 1999, and to get truthful deposition testimony uncovering how and why they had kept the prosecution going for nearly four more years (until September, 2003), when all charges were finally dismissed because there had never been a shred of evidence that any crime had been committed. I then tried the case in June, 2011.

Cornwell is hoping that Senator Paul will consider changing the law to make it easier for people to take the government to court if they're similarly wronged:

Plainly, what happened in this case just should not happen in our country, and to minimize the number of times it happens again the FTCA should be strengthened to make it a more effective form of relief for those injured by government misconduct. Most victims of governmental abuse of power simply cannot afford to pay a lawyer to pursue malicious prosecution cases, because the standard of liability (which requires proof of the lack of “probable cause”) is high, and because malicious prosecution cases (like this one) are often complex and involve many witnesses and thousands of documents. (The government produced over 15,000 documents in this case and then argued that their extensive investigation proved that they did have probable cause and were not acting maliciously.)

Given those realities, the Federal Tort Claim Act would better serve our country’s historical interests in preserving our freedom by preventing abuses of power (1) if it allowed the Court to award punitive damages (as the Federal Court noted in its opinion in this case, stating on page 142 that “. . . given the egregious conduct displayed by an agent of the government and the devastation wrought on otherwise law-abiding citizens, had punitive damages been allowable, this Court would have awarded punitive damages in the hope of deterring such reckless and damaging conduct and abuse of power in the future;” (2) if it allowed the Court to compensate Plaintiffs for the attorneys fees they incur in prosecuting the action, (3) if it did not cap attorney fees at 25% of the Plaintiff’s recovery, and (4) if – at least in those cases which are brought solely against the United States (and not against any prosecutor personally) – it expressly allowed “malicious prosecution” claims to be based on the acts of “prosecutors.”

Of course, for the most part, it appears that the government has been trying to move in the other direction, to shield itself from the very laws it passes and requires others to follow.

Filed Under: accountability, government

What If A Court Gave An Important Ruling, But We Were Not Allowed To Know What It Was?

from the sign-of-the-times dept

That Anonymous Coward alerts us to the news that DC federal appeals court has issued a ruling (pdf) in the case of Gitmo detainee Adnan Farhan Abd Al Latif, but the entire ruling is classified, so the public has no idea what it says. A ruling last year at the district court had ordered the administration to release Latif for lack of evidence that he had anything to do with Al Qaeda. And now... we have no idea what the government is ordered to do or not do. So what do we do in a time when the federal government gets to come up with secret interpretations of law and then can have court rulings on related issues entirely hidden from the public?

Filed Under: adnan farhan abd al latif, gitmo, government, guantanamo, secrecy, transparency

Federal Agent Manufactured Case Against Guy... For The Purpose Of Spending More Time With His Mistress

from the damn dept

We've covered, repeatedly, the misdeeds of various law enforcement officials lately, but this latest story might be the most egregiously ridiculous case. Apparently EPA Agent Keith Phillips pushed heavily for a case against a guy named Hubert Vidrine, who was eventually charged with "knowingly storing hazardous waste materials without a permit." It later turned out that there were some serious problems with the case against Vidrine. First, he was storing oil, which was not considered hazardous waste, and second, there was no evidence that the storage was done "knowingly." Eventually, the feds realized the case was so weak that it dumped it. Vidrine fought back in court, claiming malicious prosecution, and the court hasn't just sided with him, but awarded him $1.7 million dollars for the malicious prosecution, detailing that Phillips provided false testimony and then "permeated the entire investigation with omissions, half-truths, overstatements, inflammatory language, misstatements, patent falsehoods, and tortured readings of regulations."

But where it gets insane is the reason behind all of this. It didn't even have anything to do with Vidrine at all. Apparently, Agent Phillips used the case as a way to spend more time with his mistress, who was also working on the case. Seriously:

One of the more distressing allegations made at trial, involved allegations of Agent Phillips’ sexual, extra-marital affair (and its subsequent “cover up”) with Agent Barnhill. The evidence strongly indicated Agent Phillips deliberately used his investigation and prosecution of Hubert Vidrine to foster, further, facilitate and cloak his extra-marital affair with Agent Barnhill, and perhaps, to exert improper influence over the manner in which she investigated and reported upon this case. Agent Barnhill candidly testified that she and Agent Phillips began a physical, sexual relationship while assigned to this matter, which lasted from approximately 1996 until January or February 2001. Agent Barnhill testified she and Agent Phillips were only physically intimate when working together on the Vidrine case — in other words, they did not meet to pursue their sexual relations on occasions when they were not working the case together. Thus, the case granted the opportunity for those rendez-vous, as well as providing justification for Agent Phillips wife.

During the investigation and prosecution, Agent Barnhill, who was single, lived in South Louisiana; Agent Phillips, who was married, lived in Dallas, Texas with his wife. Prior to and at trial, plaintiffs’ counsel consistently argued Agent Phillips used the Vidrine investigation as a cover, excuse and opportunity to facilitate his illicit affair with Agent Barnhill and to hide the affair from his wife. Plaintiffs consistently argued Keith Phillips manufactured a case, both in law and fact, against Hubert Vidrine, and carefully fed the AUSA and his supervisors only the information which would further that end and perpetuate the case, all to promote access to Agent Barnhill and perpetuate and conceal their illicit affair. Regrettably, the Court agrees with plaintiffs: this inappropriate and unprofessional behavior likely was, at least in part (if not in whole) a motivation for Agent Phillips’ continued pursuit of Hubert Vidrine, without probable cause, and certainly with a complete and total reckless disregard of Hubert Vidrine’s rights.

For all of this, Phillips was charged separately, leading to him recently pleading guilty to perjury and obstruction of justice. Obviously, this is an extreme case, and in no way representative. But the point that it brings up is that law enforcement has tremendous power, and if they choose to go after someone maliciously (or indirectly salaciously), they can make someone's life a living hell on their own whim. This is why we're so often concerned about making sure there's transparency and oversight -- and that those accused of things are able to effectively defend themselves.

Filed Under: epa, government, investigations, oversight

How Certain Judges Let The Feds Hide Questionable Spying Activity

from the unfortunate dept

With the recent unveilling of sealed orders by the feds collecting info from various service providers on the activities of various Wikileaks volunteers, you might wonder how such things get sealed... and how often that happens. It appears quite frequently, but the details (of course) are secret. Julia Angwin at the Wall Street Journal profiles one magistrate judge who has been pushing for others to limit their use of seals, but it sounds like not many are following.

“We diminish our legitimacy when we do things under a blanket of secrecy,” Judge Smith said in an interview. “The only way people can get confidence in what we’re doing is if they can get access to what we are doing and know why we are doing it.”

Judge Smith analyzed the 4,234 electronic surveillance orders issued in his Houston courthouse between 1995 and 2007 and found that 91.8% of them remain sealed today.

Judge Smith says he now sets time limits for the seals on orders that he signs. If prosecutors want to renew the seal, they must request an extension. “It’s more work,” Judge Smith says, “but I think it’s necessary work.”

He said he is worried that “people who aren’t indicted – regular law abiding citizens like you or me,” will never know if their records were obtained in an investigation, he says, “because these sealing orders live on indefinitely.”

This is a huge problem for our supposedly "transparent" government. When it can effectively conduct investigations and never have to admit to them or get any adversarial review over whether or not the investigation itself was legal, you have a system prone to massive abuse. There are certainly times and cases where such seals could make sense. But the idea that so many cases are effectively permanently sealed, it gives the government the ability to spy on people with impunity. You just need to find a magistrate judge willing to accept the government's version of what's happening... and that seems to happen frequently enough.

The full article has even more disturbing details like the fact that a recent survey found that 39% of sealed cases are never even put into the court's system for tracking cases, which would at least provide some info to the public to help analyze how often this kind of thing happens. This kind of secrecy is not how a government is supposed to function. If such investigations need to happen under seal they should always include some sort of expiration date on the seal. Otherwise, the feds know that as long as they can convince a judge (without the other side there to argue), they're effectively home free, and no one will scrutinize the investigations.

Filed Under: government, oversight, sealed court documents

Appeals Court Reiterates: ACLU And Others Are Allowed To Sue The Gov't Over Secret Spying

from the moving-on... dept

Back in March, an appeals court said that the ACLU and others could challenge the controversial FISA Amendments Act, the highly controversial change to the law that Senator Wyden has been clearly suggesting is being interpreted ridiculously broadly, such that the US government is collecting private data on potentially millions of Americans without oversight or review. The concern was whether or not the ACLU had "standing" to bring the case. That's because no one knows if their private data has been scooped up and used under FISA, because the government isn't revealing it. But if you can't prove you've been harmed by the law, can you sue? The government claimed that since the ACLU had no proof it could not sue. The court disagreed.

Not surprisingly, the US asked the full appeals court (rather than just the three judge panel) to review that ruling, but the court has now rejected that request. Often when a court refuses to rehear a case en banc, there isn't much of a discussion about it -- they just refuse. Yet here, there's an 83 page filing of opinions (pdf) by judges on the court arguing over whether or not the case should have been heard. Incredibly, despite the clear implications of what Senator Wyden has been saying, a bunch of judges say that the FISA Amendments Act doesn't represent a significant change in the law. Thankfully, those judges were outvoted here, and the lawsuit can move forward.

Filed Under: government, spying, standing
Companies: aclue

Court Says Law Blocking Blogger From Displaying County Logo On Stories Violates The First Amendment

from the logo-wars dept

Governments are pretty touchy about their logos. Last year, the FBI threw a hissy fit when it discovered that Wikipedia accurately displayed its logo on a page about (you guessed it) the FBI. Similarly, the White House got upset with a blogger who used the White House logo in a post about a meeting of the President's Council of Advisors on Science and Technology. And, while there is a federal law against misuse of logos, that's for people using the logos to misrepresent themselves. Going after Wikipedia or journalists for using logos in a descriptive manner is silly.

However, Fluvanna County, Virginia, decided that it had nothing better to do than to pass an ordinance similarly banning the use of its logo, in an effort that appeared to have been directed at a blogger who used the logo... on stories about the county. Thankfully, a court has struck down the law as being a First Amendment violation:

This sweeping prohibition encompasses a substantial number of uses of the seal that would not suggest government endorsement, such as the display on a website of an exact copy of an official County news release that contains the image of the seal next to the text, or the publication in a newspaper of a photograph of a County official delivering a speech from a podium upon which the County seal is attached and visible.

The court does compare it to the similar federal law, but notes that at least the federal law makes it clear that it's only intended for use where there may be confusion over a potential endorsement. And, with that, here's the damn logo that the county can't sue us over.

Filed Under: first amendment, fluvanna county, government, logo, reporting

The Industrial Governmental Complex Paradox

from the foxes-guarding-the-henhouse dept

Filed Under: government, regulation

While In Cuba, Venezuelan President Supposedly Rules Via Twitter

from the #140charactergoverning dept

While Venezuelan president Hugo Chavez was recently in Cuba to undergo cancer treatment, several media outlets reported on Chavez using Twitter to run Venezuela. Tweets included an approval of a million dollar garbage collection program and the announcement of a new park in Caracas. As fantastic as the headlines dealing with this news sound, a little nuance is probably needed. Any of the actual decision-making was obviously done in more than 140 characters, and only the actual announcements of decisions were made by Chavez on Twitter. Instead of using it to 'run Venezuela', it would be more accurate to say that Twitter has allowed Chavez to retain a strong image in the run up to upcoming presidential elections. Probably a better strategy than censoring the internet.

Filed Under: communications, government, hugo chavez, twitter