Trump Notifies Attorney General He's Challenging The Constitutionality Of Section 230 On The Dumbest Grounds Possible

from the congress-made-companies-free-not-to-do-anything-to-encourage-censorship? dept

As you know, last week Donald Trump sued Facebook, Twitter, and YouTube in ridiculously dumb cases (which seemed to only really serve the purpose of continuing his culture grievance war and to be used as a fundraising hook). In each case, they claimed (incorrectly) that the private companies violated the 1st Amendment by kicking Trump and others off the platform and that Section 230 itself was somehow unconstitutional.

Two days later, it appears that someone on the legal team realized that when you file a lawsuit claiming that a federal law is unconstitutional, you have to file a notice of constitutional question, which effectively alerts the DOJ/Attorney General that someone, somewhere is challenging the constitutionality of the law.

Trump has now done so with identical such filings for YouTube, Twitter and Facebook. The notice is as short and sweet as it is ridiculous:

1. Section 230(c)(1) and 230(c)(2) were deliberately enacted by Congress to induce, encourage, and promote social medial companies to accomplish an objective—the censorship of supposedly “objectionable” but constitutionally protected speech on the Internet—that Congress could not constitutionally accomplish itself.

2. Congress cannot lawfully induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” Norwood v. Harrison, 413 US 455, 465 (1973).

3. Section 230(c)(2) is therefore unconstitutional on its face, and Section 230(c)(1) is likewise unconstitutional insofar as it has interpreted to immunize social media companies for actions, they take to censor constitutionally protected speech.

This argument has been made a few times, and it's incredibly dumb. The citation to Norwood is beyond silly for some very, very basic reasons. While it is true that the government "may not induce, encourage, or promote private persons to accomplish what it is constitutionally forbidden to accomplish," there is absolutely nothing in Section 230 that induces or encourages any action that is constitutionally forbidden.

Companies have every constitutional right to remove people who violate their terms of service. They have every constitutional right to say "I don't want to host your speech." None of that is constitutionally forbidden.

And nothing in Section 230 "induces" or "encourages" any behavior. What it says is that websites are free to moderate how they want, without fear of liability. Indeed, one of the biggest complaints from many (especially most of the early Section 230 lawsuits, and the Prodigy lawsuit that inspired Section 230 in the first place) was that without Section 230, websites would be much faster to remove all sorts of content out of fear of liability. If you're trying to induce websites to take down content that the government cannot force to be taken down, you don't do it by saying "you're not liable if you leave all that content up." That would be the dumbest inducement possible.

What still astounds me is that no one who is filing these lawsuits seems to recognize that if Section 230 were actually found unconstitutional, it would mean that websites would be much, much quicker to remove the likes of Donald Trump and his propaganda-spewing allies, because the risk of liability from lawsuit would be too great, and the 1st Amendment would still be around to protect their moderation choices.

And I won't even bother responding to the idea that 230 was put in place to encourage censorship on social media when social media... didn't exist when Section 230 was put in place.

Either way, it will be interesting to see if this move leads the DOJ to now get involved -- and what it will say in this case. After all, we (unfortunately) still have Joe Biden on record insisting that Section 230 should go away.

Filed Under: attorney general, constitutional, doj, donald trump, florida, notice of constitutional question, section 230
Companies: facebook, twitter, youtube

Federal Court Permanently Blocks Michigan's Sex Offender Registry Law, Tells Legislators To Try Writing A Constitutional One

from the it's-only-a-230-year-old-document-that-people-have-hardly-heard-of dept

Michigan's sex offender registry has been struck down as unconstitutional. It's the result of multiple legal battles, tracing all the way back to 2010. The latest round of litigation has finally killed the law -- something legislators allowed to stay on the books after being told pretty much the same thing by the Sixth Circuit Court of Appeals in 2016.

If you really want to dig into the details of this years-long attempt to overturn the law, you really should read Guy Hamilton-Smith's guest post at Simple Justice. He quotes the Sixth Circuit's 2016 opinion, which really should have resulted in something better than the state offered in response, which was nothing. Due process isn't something very many sex offender registries do well, and Michigan's SORA was one of the worst.

SORA brands registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.

Since this opinion only applied to the plaintiffs in this case, legislators refused to take the hint the law was unconstitutional on its face. A second lawsuit, brought by the ACLU as a federal class action, has finally achieved what the first one didn't: an injunction permanently preventing the state from enforcing this law against anyone.

With the Michigan legislature unwilling to act to comply with Does I, and the statute not being severable, the outcome flowed naturally. Judge Cleland entered permanent injunctions as to two distinct classes of plaintiffs.

The first class was the Ex Post Facto class, which is to say that the order precludes the application of Michigan’s SORA law at all to anyone who was convicted prior to 2011.

The second class includes anyone required to register at all, regardless of when their offense was committed. Michigan’s SORA, like many around the country, contains (or, perhaps more aptly, contained) within it myriad restrictions on where people required to register may live with their families, where they may travel, where they may work, and requires them to report in person to provide minor changes in their information to authorities. Failure to abide by these often hyper-technical. if not entirely untenable, requirements would often lead to new felony prosecutions, often on a strict liability basis.

Cleland also permanently enjoined the enforcement several of these provisions on Due Process and First Amendment grounds for this class of plaintiffs, as well as reading into SORA a knowledge requirement, thus, precluding criminal prosecutions on a strict liability theory.

In practical terms, this means Michigan does not have a sex offender registry at the moment. Presumably, legislators will be far more active this time around, since the inability to ostracize certain criminals isn't going to play well with their constituents. But they'll have to be far more careful this time around, and actually allow these citizens who've served their time to become part of the communities they live in, rather than the drifters and pariahs politicians want them to be.

To be sure, there are horrible people on sex offender registries who've violated and harmed victims in horrific, incalculable ways. But there are also people on registries who've done nothing more than send sexts to their peers, or urinated in public, or happened to be a few months on the wrong side of consent laws. It's not just child rapists who end up on these lists. It's people who've made a juvenile mistake (in most senses of the word) and are now forced to navigate a labyrinthine law to live their lives -- one that makes it almost impossible to live anywhere in the United States while simultaneously erecting obstacles that prevent them from rejoining civilization on any level.

The opinion [PDF] includes a list of SORNA's demands that fall outside of the Constitution -- prohibitions and requirements state legislators won't be allowed to use in their replacement law.

(a) Provisions Void for Vagueness:

(1) the prohibition on working within a student safety zone, Mich. Comp. Laws. §§ 28.733–734;

(2) the prohibition on loitering within a student safety zone, Mich. Comp. Laws. §§ 28.733–734;

(3) the prohibition on residing within a student safety zone, Mich. Comp. Laws. §§ 28.733, 28.735;

(4) the requirement to report “[a]ll telephone numbers . . . routinely used by the individual,” Mich. Comp. Laws.§ 28.727(1)(h);

(5)the requirement to report “[t]he license plate number, registration number, and description of any motor vehicle, aircraft, or vessel . . . regularly operated by the individual,” Mich. Comp. Laws.§ 28.727(1)(j).

[...]

(c) Provisions Void under the First Amendment:

(1) the requirement “to report in person and notify the registering authority . . . immediately after . . . [t]he individual . . . establishes any electronic mail or instant message address, or any other designations used in internet communications or postings,” Mich. Comp. Laws. § 28.725(1)(f);

(2) the requirement to report “[a]ll telephone numbers . . . routinely used by the individual, Mich. Comp. Laws.§ 28.727(1)(h);

(3) the requirement to report “[a]ll electronic mail addresses and instant message addresses . . . routinely used by the individual,” Mich. Comp. Laws.§ 28.727(1)(l);

(4) the retroactive incorporation of the lifetime registration’s requirement to report “[a]ll electronic mail addresses and instant message addresses assigned to the individual . . . and all login names or other identifiers used by the individual when using any electronic mail address or instant messaging system,” Mich. Comp. Laws. § 28.727(1)(i).

The court says a Constitutional sex registry is possible, but the state has had almost a decade to fix this and has only made it worse. It now has sixty days to craft a suitable replacement. Until it does, it cannot enforce the worthless one it still has on the books.

Filed Under: 6th circuit, civil liberties, constitutional, michigan, sex offender registry, sex offenders, sora

Court Says National Security Letters Are Now Constitutional Under USA Freedom Act

from the time-to-appeal dept

We've written quite a lot about National Security Letters (NSLs) over the years. This widely abused tool allowed the Justice Department/FBI to issue simple letters (technically administrative subpoenas) demanding information from companies with no prior judicial review -- and frequently with a perpetual gag order, so that a company can't even say that it had received an NSL. The FBI hands these out by the dozens. Back in 2013, there was a somewhat surprising, but important, district court ruling in California saying that national security letters were unconstitutional, and that legislation was needed to fix them.

The government appealed -- and while that appeal was going on, Congress passed the USA Freedom Act, which included some modifications to the NSL provisions in the PATRIOT Act. Based on that, the 9th Circuit appeals court sent the case back down to the district court to review based on the new law. And, unfortunately, in a newly unsealed opinion (from the end of March), Judge Susan Illston found National Security Letters to now be constitutional. As Illston notes, under the old NSL rule, courts were limited in being able to review NSLs. However, under the version amended by the USA Freedom Act, there is at least some potential for judicial review, and that now makes them constitutional in the eyes of the court:

The Court concludes that as amended, section 3511 complies the constitutional requirements and curses the deficiencies previously identified by this Court. Section 3511 no longer contains the "essentially insurmountable" standard providing that a court could modify or set aside a nondisclosure requirement only if the court found there was "no reason to believe" that disclosure may result in enumerated harm. The government argues, and the Court agrees, that in the USAFA, Congress implicitly ratified the Second Circuit's interpretation of section 3511 as "plac[ing] on the Government the burden to persuade a district court that there is a good reason to believe that disclosure may risk one of the enumerated harms, and that a district court, in order to maintain a nondisclosure order, must find that such a good reason exists."...

The Court rejected the argument, presented by the EFF which brought the case, that even this new standard is unconstitutional because it remains incompatible with the First Amendment in gagging speech not based on necessity, but rather on the mere possibility of harm. The Court doesn't buy it, though, saying that since the court can now review any NSL gag order, it's okay.

The EFF, as you might imagine, is not happy about this and will be appealing to the 9th Circuit, where the case had been before, prior to the USA Freedom Act pushing it back down.

In its new order in our cases, the district court acknowledged that USA FREEDOM’s kludgy reciprocal notice procedure does not live up to the high First Amendment standards in Freedman, but it still called this new procedure good enough. That’s because the court agreed with the Second Circuit that NSLs are not “classic prior restraints” because they do not gag “those who customarily wish to exercise rights of free expression,” such as movie exhibitors and book publishers. This might have seemed plausible when the Second Circuit first wrote it in 2008, as it was less common for companies to speak publicly about government requests for customer information.

But these days, after the immense public debate caused by the Snowden revelations, service providers regularly publish transparency reports about government data requests, and companies like Apple, Microsoft and Google engage in public fights against overbroad requests and gag orders. Users are very concerned about the privacy and security of their data held by these companies. And contrary to the court’s assumption, many providers—like our clients—want to talk about these requests.

But even if it were true that gagged communications providers aren’t “classic speakers,” NSLs are classic prior restraints. The First Amendment has never reserved its highest speech protections for only the most talkative—just the opposite, in fact. Prior restraints arise when the government preemptively tells someone they cannot engage in speech, which is exactly what NSL gag orders do.

The EFF does note that there is a silver lining in this ruling, in that the gag order for one of its clients does not meet the new standard, meaning that, so long as the DOJ does not appeal the ruling, one of the anonymous EFF clients may be able to reveal who they are and that they received an NSL years ago...

Filed Under: 9th circuit, constitutional, fbi, first amendment, gag orders, national security letters, nsl, usa freedom act

Dianne Feinstein's Bragging About NSA Surveillance Program May Finally Result In It Being Declared Unconstitutional

from the ooops dept

This is quite an incredible story that's unfolding about a new opportunity for a Constitutional challenge to the FISA Amendments Act, which has enabled broad NSA surveillance. If you haven't been following the details (and even if you haven't been following all of this closely), the specifics may be a bit confusing, so we'll try to go piece by piece through the history here to explain the events leading up to a new Constitutional challenge being placed on the law, which the Supreme Court had previously effectively wiped out -- in large part due to false information presented by the Solicitor General, who now appears to be not at all happy the intelligence community led him to lie to the Supreme Court. And it may have all unravelled because of Dianne Feinstein's gloating and bragging about how important the FISA Amendments Act is.

First up: the FISA Amendments Act (FAA) was passed in 2008, after Congress claimed that the intelligence community was hamstrung in important areas of surveillance. Much of the debate over the law was focused on the fact that it gave telcos retroactive immunity for anything illegal they might have done regarding President Bush's warrantless wiretapping program, which was only revealed by the NY Times a few years earlier. But, even more important than that was that the FAA more or less authorized continued warrantless wiretapping by the intelligence community. In 2011, the FAA was up for renewal. Some in the Senate sought to use the distraction (that year) over the "debt ceiling" to sneak through an early renewal with no debate, and Senator Ron Wyden put a hold on it, demanding more answers about how many Americans were being spied on. He eventually lifted the hold in exchange for a one-year extension and a promised debate over the FAA.

Fast forward to the end of last year, with the FAA set to expire yet again, and Senate Intelligence Committee boss Dianne Feinstein, who had originally made that "deal" with Wyden, tried very hard to avoid having any debate. Eventually, at the very end of December, she allowed a brief debate, in which she showed up up to insist that the FAA had to be renewed or we'd all be at risk. As we noted at the time, her reasoning was somewhat laughable, where she held up a pretend piece of paper with a supposed "classified" reason for why the FAA was so important. Remember that speech, because it's going to become quite important a little later on in this story.

Parallel to all of this, there was a legal fight making its way through the courts, brought by the ACLU to challenge the Constitutionality of the FAA. The big question was whether or not the courts could be convinced that the ACLU had "standing" to sue, since it couldn't prove that it had been spied on directly. Eventually, in a narrow 5-4 decision, the Supreme Court said that the ACLU had no standing. Of course, the key thing that had concerned the Justices the most was the simple question: if the program is secret, then could anyone ever challenge the Constitutionality of the program?

Solicitor General Donald Verrilli, who argued the case on behalf of the government, told the Supreme Court that of course people could have standing to challenge the law, and that the government would be required to inform defendants in cases where such information was used that it was collected under the FAA. This point is what pushed the Supreme Court over the edge to rule against the ACLU. As they noted in the majority decision:

...if the Government intends to use or disclose information obtained or derived from a §1881a acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.... Thus, if the Government were to prosecute one of respondent-attorney’s foreign clients using §1881a-authorized surveillance, the Government would be required to make a disclosure.... In such a situation, unlike in the present case, it would at least be clear that the Government had acquired the foreign client’s communications using §1881a-authorized surveillance.

Okay, now the law has been in place since 2008. If what Verrilli said was true, then, um, shouldn't there have been some cases between now and then where the FAA-enabled wiretapping was used? And if that's true, then it should have been disclosed in the various cases. Except, there is no case on record where it had been disclosed.

Right, so now we jump back to Feinstein's grandstanding about why we need to keep the FAA. In her speech on the floor, she announced that the FAA was necessary in a long list of cases:

"I've asked the staff to compile arrests that have been made in the last four years in America on terrorist plots that have been stopped. And there are 100 arrests that have been made since 2009 and 2012. There have been 16 individuals arrest just this year alone. Let me quickly just review what these plots were. And some of them come right from this program. The counterterrorism come and the information came right from this program. And again, if Members want to see that they can go and look in a classified manner.

[proceeds to list out eight "examples" of terrorism arrests -- two with names, six are just general descriptions of plots]

... and it goes on and on and on. So this has worked. And you know, as the years go on, the intelligence becomes the way to prevent these attacks. Now that the FBI has geared up a national security unit, they've employed 10,000 people and information gained through programs like this, through other sources as well, is able to be used to prevent plots from happening. So in four years 100 arrests to prevent something from happening in the United States, some of which comes from this program. So I think it's a vital program.

The lawyers for the defendants in the two named cases suddenly recognized an issue. They were named in this list, but at no point had they been told that evidence was gathered under this program. So they asked. And... the government refused to tell them the details. The NY Times took notice of this, pointing out that either Feinstein lied in her Senate statement or Verrilli lied to the Supreme Court:

In a prosecution in Federal District Court in Fort Lauderdale, Fla., against two brothers accused of plotting to bomb targets in New York, the government has said it plans to use information gathered under the Foreign Intelligence Surveillance Act of 1978, or FISA, which authorized individual warrants. But prosecutors have refused to say whether the government obtained those individual warrants based on information derived from the 2008 law, which allows programmatic surveillance.

Prosecutors in Chicago have taken the same approach in a prosecution of teenager accused of plotting to blow up a bar.

To his credit, it appears that once this all became clear, Verrilli had a crisis of conscience, suggesting that he did not knowingly lie to the Supreme Court, but honestly believed that the DOJ would reveal its use of these programs in cases. From that new NY Times piece by Charlie Savage, it's reported that Verrilli was pretty angry about being misled and demanded some answers:

As a result, Mr. Verrilli sought an explanation from national security lawyers about why they had not flagged the issue when vetting his Supreme Court briefs and helping him practice for the arguments, according to officials.

The national security lawyers explained that it was a misunderstanding, the officials said. Because the rules on wiretapping warrants in foreign intelligence cases are different from the rules in ordinary criminal investigations, they said, the division has long used a narrow understanding of what “derived from” means in terms of when it must disclose specifics to defendants.

Either way, Verrilli followed through on this, and apparently kicked off a major "internal debate" over whether or not there was "any persuasive legal basis for failing to clearly notify defendants that they faced evidence linked to the 2008 warrantless surveillance law, thereby preventing them from knowing that they had an opportunity to argue that it derived from an unconstitutional search." According to the article, Verrilli "argued that withholding disclosure from defendants could not be justified legally." Eventually, even the NSA and FBI's lawyers and James Clapper's office agreed. The decision was made to start revealing this information going forward.

However, they also agreed to reveal to at least one defendant that the FAA was used to collect evidence against them, and that this had not been revealed. Of course, this means they get to cherry pick the "right" case.

The ACLU, however, is not waiting around. Almost immediately, it filed a case about this, arguing that the government had illegally hidden this information in response to a FOIA request. It seems like that may be the most obvious procedural way of re-raising this question, as I have no idea if there's some way for the ACLU to directly petition the Supreme Court to reopen the case, noting that the key piece of information the Justices relied on to make their ruling was false (though, apparently, from a Solicitor General who had been misled by prosecutors).

Now, to wrap this all up, we bring it back around to Feinstein's speech in the Senate. Remember, the whole point of her speech was to directly argue for the reapproval of the FAA. And while she equivocated a few times in describing what programs were responsible for the arrests, she clearly made references to "this program" working. However, when the lawyers for one of the defendants named by Feinstein asked the Senate Intelligence Committee for some clarification, Morgan Frankel, a Senate Intelligence Committee lawyer, responded by arguing that Feinstein wasn't actually referring to the FAA program. Seriously.

Notwithstanding that she was speaking in support of reauthorization of Title VII of the Foreign Intelligence Surveillance Act, Senator Feinstein did not state, and she did not mean to state, that FAA surveillance was used in any or all of the nine cases she enumerated, including Mr. Daoud's case, in which terrorist plots had been stopped. Rather, the nine cases the Chairman sumamrized were drawn from a list of 100 arrests arising out of foiled terrorism plots in the United States between 2009 and 2012 compiled by the staff from FBI press releases and other public sources.

[....] To summarize, nothing in Senator Feinstein's remarks was intended to convey any view that FAA authorities were used or were not used in Mr. Daoud's case or in any of the other cases specifically named. Rather, her purpose in reviewing several recent terrorism arrests was to refute the "view by some that this country no longer needs to fear attack." Thus, because Senator Feinstein was neither relying on, nor attempting to convey, any information about the use or non-use of FAA authorities in any of the nine cases, there are no "assessments, reports, and other information" in the Committee's possession to which Senator Feinstein referred in her comments, pertaining to FAA surveillance with respect to Mr. Daoud's case.

Did you get that? So, what they're now saying is that Senator Feinstein went to the floor of the Senate to argue strongly in favor of renewing the FAA, and she named a bunch of cases, clearly stating that this program was necessary because of those cases -- but she didn't mean to imply that it was ever actually used in any of those cases. And, in the meantime, we now find out that even in cases where it has been used, no one's been told about it, despite the law requiring defendants to be told -- and the Solicitor General telling the Supreme Court they would be told.

So, it appears that both Verrilli and the Supreme Court got duped by the intelligence community, while Feinstein clearly misled the Senate and the American public by pretending that the FAA had been used to stop terrorism, but when called on it, now pretends she meant no such thing. Thankfully, however, her attempt at misleading the public by bragging about these arrests may have now (finally) kicked off the legal rationale for a case to prove that the FAA is, in fact, unconstitutional.

Filed Under: constitutional, dianne feinstein, donald verrilli, faa, fisa amendments act, nsa, nsa surveillance, standing

Why The NSA's Surveillance Program Is Illegal And Unconstitutional

from the period-end-stop dept

As more and more details keep coming out about the NSA's surveillance program, the story keeps coming back around to the key point that many people have been raising all along: How the hell can all of this be legal? The answer may be a simple one: it's not. The administration and various NSA defenders keep insisting that the program is "legal" in that it falls under a law approved by Congress -- though many in Congress insist that they never meant for the law to cover this level of surveillance -- and that it has oversight from the FISA Court, which similarly has approved it. Laura Donohue, a law professor and the director of Georgetown's Center on National Security and the Law, has argued that the program might be "legal" but unconstitutional at the same time. She goes through some of the history of the intelligence overreach, specifically by the NSA. She notes that the whole FISA process was designed specifically to prevent this level of overreach. In the end, she notes the programs may be within the scope of laws that Congress passed, but that doesn't make them Constitutional in the slightest.

To the extent that the FISC sanctioned PRISM, it may be consistent with the law. But it is disingenuous to suggest that millions of Americans' e-mails, photographs and documents are "incidental" to an investigation targeting foreigners overseas.

The telephony metadata program raises similar concerns. FISA did not originally envision the government accessing records.

[....] As a constitutional matter, the Supreme Court has long held that, where an individual has a reasonable expectation of privacy, search and seizure may occur only once the government has obtained a warrant, supported by probable cause and issued by a judge. The warrant must specify the places to be searched and items to be seized.

[....]Americans reasonably expect that their movements, communications and decisions will not be recorded and analyzed by the government. A majority of the Supreme Court seems to agree. Last year, the court considered a case involving 28-day GPS surveillance. Justice Samuel Alito suggested that in most criminal investigations, long-term monitoring "impinges on expectations of privacy." Justice Sonia Sotomayor recognized that following a person's movements "reflects a wealth of detail about her familial, political, professional, religious, and sexual associations."

Meanwhile two other law professors, Jennifer Granick from Stanford and Chris Sprigman, who just moved to NYU from UVA, have written an even more detailed piece for the NY Times explaining why the programs are illegal and unconstitutional. They note that some have claimed the programs are "legal," accepting the administration's claims. However, they argue that even that claim is highly unlikely.

This view is wrong — and not only, or even mainly, because of the privacy issues raised by the American Civil Liberties Union and other critics. The two programs violate both the letter and the spirit of federal law. No statute explicitly authorizes mass surveillance. Through a series of legal contortions, the Obama administration has argued that Congress, since 9/11, intended to implicitly authorize mass surveillance. But this strategy mostly consists of wordplay, fear-mongering and a highly selective reading of the law. Americans deserve better from the White House — and from President Obama, who has seemingly forgotten the constitutional law he once taught.

They detail why each of the two programs are not actually justified by the laws that are used to defend them. First up, Section 215 of the Patriot Act, the so called "tangible things" clause, which was, at one time, known as the "library records" clause as it was used to collect library records to see what books people were checking out, but which is now being used to justify the collection of "metadata" on pretty much every phone call made and (as we just learned) many emails as well.

Even in the fearful time when the Patriot Act was enacted, in October 2001, lawmakers never contemplated that Section 215 would be used for phone metadata, or for mass surveillance of any sort. Representative F. James Sensenbrenner Jr., a Wisconsin Republican and one of the architects of the Patriot Act, and a man not known as a civil libertarian, has said that "Congress intended to allow the intelligence communities to access targeted information for specific investigations." The N.S.A.'s demand for information about every American's phone calls isn't "targeted" at all — it's a dragnet. "How can every call that every American makes or receives be relevant to a specific investigation?" Mr. Sensenbrenner has asked. The answer is simple: It's not.

The government claims that under Section 215 it may seize all of our phone call information now because it might conceivably be relevant to an investigation at some later date, even if there is no particular reason to believe that any but a tiny fraction of the data collected might possibly be suspicious. That is a shockingly flimsy argument — any data might be "relevant" to an investigation eventually, if by "eventually" you mean "sometime before the end of time." If all data is "relevant," it makes a mockery of the already shaky concept of relevance.

From there, we move onto PRISM, which is justified under Section 1881a of the FISA Amendments Act (FAA). This was the part of the law that "allowed" warrantless wiretapping, a program that had been going on for years, but had to be "approved" after the press found out about it. Even though this program granted broad powers for the collection of information (perhaps unconstitutionally so), Granick and Sprigman point out that even PRISM appears to exceed the boundaries of the already too broad law:

Like the Patriot Act, the FISA Amendments Act gives the government very broad surveillance authority. And yet the Prism program appears to outstrip that authority. In particular, the government "may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States."

The government knows that it regularly obtains Americans' protected communications. The Washington Post reported that Prism is designed to produce at least 51 percent confidence in a target's "foreignness" — as John Oliver of "The Daily Show" put it, "a coin flip plus 1 percent." By turning a blind eye to the fact that 49-plus percent of the communications might be purely among Americans, the N.S.A. has intentionally acquired information it is not allowed to have, even under the terrifyingly broad auspices of the FISA Amendments Act.

The Granick and Sprigman piece also points out that to tap dance around the fact that both of these programs clearly violate the laws that defenders claim allowed them, those defenders basically try to redefine the English language -- such that "acquire" now only means "looks at" rather than "acquire", and "target" means target of the investigation rather than the person whose data is collected, and "incidental" means, well, let's not even try to figure out what it means, because it doesn't appear the NSA knows. Donohue, Granick and Sprigman point out that the Supreme Court was pretty clear in US v. Jones concerning widespread, long term monitoring, which suggests these programs are, on top of being illegal, unconstitutional under the 4th Amendment.

Eventually, these programs are going to get tested in court. The government is going to do everything it can to avoid the lawsuits, claiming a lack of standing, national security and whatever else it can think up. But, sooner or later they're going to have to face the music and realize that stomping all over the Constitution and the law isn't what the American public signed up for.

Filed Under: 4th amendment, constitutional, legal, nsa, nsa surveillance, patriot act, privacy, surveillance

Joel Tenenbaum Loses Again; Bad Cases With Lying Defendants Make For Bad Law

from the unfortunate dept

From very early on, we pointed out that Joel Tenenbaum's defense to being sued by the record labels was a complete and total train wreck. There were some legitimate legal issues to be raised, but on the whole, Tenenbaum's legal team either failed to raise them, or raised them so ridiculously that they were dismissed out of hand. At points, it appeared that they bet the whole game on the idea that downloading music would be seen by the court as "fair use," when that was almost certainly never going to fly (and when the court rejected it, it seemed like Tenenbaum's lawyers had no backup plan). This was all made much, much, much worse by the fact that Joel Tenenbaum was a terrible defendant. He never should have gone to trial and should have taken the first settlement offered to him for a very simple reason: he was guilty of massive amounts of file sharing, and there was no way he was going to get around that point in a trial. Even worse (much worse) he then lied, repeatedly, about this. It's stunning that he didn't just settle and move on. This was a clear cut case where he had no case, and fighting it has only served to set bad to awful precedents, each time clouded in large part by his behavior outside of just the file sharing.

So it's no surprise that, on yet another appeal, Tenenbaum has lost again, as the appeals court has sided with the second district court ruling, which said that a $675,000 award for sharing 30 songs was perfectly reasonable. There is a legitimate issue of whether or not $22,500 per song for songs that were uploaded non-commercially is constitutional. But, partly because of Tenenbaum's own bad behavior, the court has no problem at all with an award that high.

On appeal, Tenenbaum invites us to assume that he is "the most heinous of noncommercial copyright infringers." We need not go so far as to accept his offer. The evidence of Tenenbaum's copyright infringement easily justifies the conclusion that his conduct was egregious. Tenenbaum carried on his activities for years in spite of numerous warnings, he made thousands of songs available illegally, and he denied responsibility during discovery. Much of this behavior was exactly what Congress was trying to deter when it amended the Copyright Act. Therefore, we do not hesitate to conclude that an award of $22,500 per song, an amount representing 15% of the maximum award for willful violations and less than the maximum award for non-willful violations, comports with due process.

Basically, an award this high is okay because Tenenbaum was a brat. The court argues that because he was such a brat an award this high makes sense because it fits in with the "deterrent effect" intended by statutory damages awards. Of course, if you think about that logically, it makes little sense, because by Tenenbaum's own actions, it appears that nothing was going to deter him from file sharing, just as other giant awards and greater levels of punishment have done little to nothing to deter others from file sharing. But, all of that is blurred by the fact that he lied, which mucked up the entire case, combined with a really piss poor strategy in court that never seemed to reach a point that was even half-baked.

There are legitimate questions about the constitutionality of copyright's statutory damages awards, which are nowhere near proportionate with the "wrongs" they are supposedly "righting." But, you don't get good rulings on difficult cases when you have a defendant who acted badly and lied during discovery. Instead, you get a bad precedent like this one.

Filed Under: constitutional, copyright, due process, joel tenenbaum, statutory damages

Court Orders Google To Comply With National Security Letters, But Suggests It Might Want To Ask Again

from the mother-may-i dept

You may recall that back in April it was revealed that Google was fighting back against complying with a series of National Security Letters (NSLs), the notorious tool of law enforcement to snoop on people secretly, which has been abused widely. Google's decision to push back on these NSLs came following a ruling by the same judge, Susan Illston, who had ruled NSLs unconstitutional. Given that ruling, it appeared that Google hoped to get the judge to say that it didn't need to comply with 19 NSLs it had received.

Instead, Judge Illston has told Google it must comply -- following secret affidavits from FBI officials. However, it appears that Judge Illston may think that Google just asked in the wrong way, and might be more willing to kill the NSLs if Google presented more specifics about the NSLs in question, rather than asking to broadly ignore NSLs in general:

It wasn't a complete win for the Justice Department, however: Illston all but invited Google to try again, stressing that the company has only raised broad arguments, not ones "specific to the 19 NSLs at issue." She also reserved judgment on two of the 19 NSLs, saying she wanted the government to "provide further information" prior to making a decision.

Given that, I would imagine this is nowhere near over.

Filed Under: compliance, constitutional, doj, fbi, national security letters, nsls, privacy
Companies: google

Document Accidentally Filed Publicly Reveals Google Fighting Back Against Government Snooping

from the national-security-letters dept

For many years we've been highlighting how the federal government (mainly the FBI) has widely abused the "National Security Letter" (NSL) process to get information on American citizens with almost no oversight. Part of the issue is that NSLs include a complete gag order, barring recipients from telling anyone about them. It's been very rare for anyone to challenge them, and doing so is risky in and of itself, since it involves having to break that gag order. There have been a very few examples of companies fighting back against the NSLs, and whenever we hear about it, it tends to be done by an anonymous company, since they can't even name themselves. The only previous instance I can recall of it being known who fought an NSL was Nicholas Merrill, the head of Calyx Internet Access, who was only able to admit his role in fighting an NSL years later. He talked about how he'd be involved in conversations with people about the "anonymous" ISP fighting NSLs and couldn't even indicate that he was the guy being discussed in that very conversation.

The last few weeks have been quite interesting in the world of NSLs, however. As we noted, a few weeks ago, a court in California ruled that NSLs were unconstitutional. And, now, it's come out that Google appears to be fighting an NSL, potentially in response to that very ruling. Of course, it appears that this news of Google fighting back wasn't supposed to be public either. Bloomberg broke the story after spotting a motion from Google that hinted strongly at what was going on. That motion was briefly available via PACER, but since the Bloomberg story came out, it has been put under seal by the court. Of course, even though Bloomberg (for reasons that escape me) chose not to release the document itself, plenty of others have gotten a copy from before it went under seal. You can see it at the link above or embedded below.

The motion itself doesn't directly reveal that much -- but does tell you just enough to show that Google is likely fighting an NSL. The document itself is not the "petition" in question, but rather a motion to be able to file a petition under seal. Ordinarily, you would expect the motion to be filed under seal as well, which is where someone messed up, letting this out. However, the motion reveals that the petition Google is seeking to file is to "set aside a legal process ... pursuant to 18 USC 3511 (a) and (b)." That law says that an entity can petition the court to set aside a request for information, including a national security letter, "if compliance would be unreasonable, oppressive, or otherwise unlawful." It also notes that it is requesting to file this petition under seal as required by 18 USC 2709(c)(1), which is the part of the law about keeping NSLs secret.

Going through all of this, it strongly suggests that Google has responded to the ruling from a couple of weeks ago by pushing back against NSLs, pointing out that a court has ruled NSLs illegal, and filing a petition against at least one (and perhaps more) NSLs to let the court know that, under 3511, complying with the NSL would be "otherwise unlawful" according to that court ruling. It's worth noting that this motion and petition are before the same judge, Susan Illston, who declared the NSLs illegal in that case a few weeks ago. Unfortunately, we may never know how the court responds to the petition itself, since I imagine the results of this will be under seal as well. The court ruling from a few weeks ago declaring NSLs illegal did stay that decision pending appeal, so a court may have leeway to say that existing NSLs can proceed, but you could also see a court recognizing that it need not just allow such a rubber-stamping to move forward.

Either way, even if it was an accidental leak, it's good to see that Google is using this as an opportunity to fight back against NSLs. Hopefully, this means that other companies are doing the same thing as well.

Filed Under: 4th amendment, constitutional, national security letters, sealed documents
Companies: google

District Court: $675,000 For Non-commercially Sharing 30 Songs Is Perfectly Reasonable

from the pay-up dept

Let's be clear on one thing: Joel Tenenbaum should never have allowed the record label lawsuit against him to go forward. As with Jammie Thomas before him, he was not a good defendant, and had too many factors that clouded the key questions concerning the statutory damages rates in copyright law. Even worse, he lied to the court and his lawyers seemed more focused on making a point than mounting a defense. As we said all along, he needed to find better lawyers (and he probably shouldn't have fought this in the first place). Even the judge, who clearly was sympathetic to Tenenbaum's side of the story, rejected his basic argument, on which his legal team seemed to bet their whole strategy -- and then berated his legal team for their dreadful handling of the case.

Given all of that, it's easy to conflate all of those other issues with the important one: are the statutory rates for copyright infringement, especially in cases of non-commercial, personal use, Constitutional? The original judge, Nancy Gertner, argued that they were unconstitutionally excessive, which became the focus of the appeals process. The appeals court rejected the process Gertner used to come to that conclusion, saying that she should have used "remittitur" to reduce the award and offer the RIAA a chance for a new trial (as happened in the Jammie Thomas case). Instead, Gertner effectively tried to jump the line, by going straight to a Constitutional argument. The appeals court noted that it was too early in the process for that, and she should have used remittitur first. As such, it reinstated the original jury award of $675,000 for sharing 30 songs. The Supreme Court then refused to hear the case, which wasn't a huge surprise either.

So... back down at the district court, with a different judge, who doesn't seem nearly as sympathetic. Given that the judge is 80-years-old, it's perhaps not a surprise that she seemed to spend more time talking about what a naughty kid Tenenbaum was, rather than the actual reasonableness of the rates. The court has now said, not only does it not find $675,000 constitutionally excessive for sharing 30 songs, but that it doesn't even qualify for remittitur, because $675,000 is not "grossly excessive, inordinate, shocking to the conscience of the court." In other words, a $675,000 judgment is perfectly reasonable for sharing 30 songs. The judge, not surprisingly, focuses on many of the elements that we discuss above in arguing why it's not excessive, with Tenenbaum's continued use of file sharing and his lies, to support the supposed reasonableness of the ruling. She never actually looks at whether the numbers make sense, but merely suggests that because he didn't revere copyright law, that such an award is perfectly reasonable.

Unfortunately, it seems that Tenenbaum's behavior -- which we agree was not good at all -- clouds the larger issue of just how insane the statutory damages are. Some, of course, will point out that he's been accused of sharing a lot more than 30 songs, but that doesn't matter. The trial was about 30 songs. We don't punish people in a court for stuff they're not charged with and which they can't defend against. If you want to say that $675k is reasonable for thousands of songs, then he should have been charged with infringing on that many songs.

The judge argues that one of the factors that makes this "reasonable" is that if Tenenbaum had wanted to license the songs for distribution himself, the cost would have been "enormous," according to the labels. But that's a silly comparison, because this wasn't a commercial venture and he wasn't looking to set up a service -- he was just doing what millions of people around the world do -- whether you think it's right or wrong. As such, any thinking person should recognize that a $675k fine for the personal sharing of 30 songs seems offensive to the senses, even if you agree that Tenenbaum is not particularly apologetic for what he did. It really is a situation where tons of people were doing it, and right or wrong, it had become the norm. Something is wrong with a legal system that burdens people with such out of proportion awards for doing what everyone's doing.

And despite the RIAA cheering on this decision, claiming that it's "pleased" with the decision, it actually hurts them too. When ordinary people see $675,000 judgments for sharing 30 songs, they respect copyright less, because it seems so out of proportion with reality.

This case probably isn't over yet, and there will likely still be an appeal to get at the Constitutional questions. But, I'm worried that Tenenbaum's own bad actions, separate from what he's accused of, are clouding the water here, and actually make this a bad and potentially dangerous case. That the court has upheld the $675,000 isn't a surprise, but it should still be worrisome to people in terms of the precedent it will set for the next group of people accused in this manner, who didn't act the same way Tenenbaum did.

Filed Under: $675, 000, constitutional, copyright, joel tenenbaum, non-commercial sharing, statutory damages
Companies: riaa

DOJ Doesn't Believe $80,000 Per Song Unconstitutional Or Oppressive

from the tell-that-to-Jammie dept

While this probably isn't a huge surprise, given the fact that the Justice Department is stocked with former lawyers for the entertainment industry (and because it's filed similar briefs before), but it's still worth noting that the Justice Department has filed a brief in the Jammie Thomas lawsuit, in support of the constitutionality of the $1.92 million fine (and, no, none of the former RIAA lawyers are signatories to the brief, though you have to imagine their "expertise" was consulted). The reasoning is quite troubling and appears to include some serious revisionist history.

First, what's stunning is that the brief claims the awards are perfectly constitutional because it is not "so severe and oppressive as to be wholly disproportioned to the offense [or] obviously unreasonable." Really? It seems that an awful lot of people find the idea of being forced to hand over $80,000 per song without any evidence that it was ever actually shared by anyone is severe and oppressive to the point that it's disproportionate to the offense and quite obviously unreasonable. I mean, this is a woman who wanted to listen to her favorite bands, and she now has to pay nearly $2 million. How can anyone claim that's not "severe and oppressive" in relation to the actual "harm" done?

Second, the brief claims that the damages should be much more than the $1.29 price per song found on iTunes, because it "ignores the potential multiplying effect of peer-to-peer file-sharing." Except, if that were the case, shouldn't the plaintiffs been required to show that these songs were actually shared? And should Thomas also be liable for the actions of anyone else she shared the songs with? That seems to go quite beyond what the law states.

Third, and perhaps most troubling, is the Justice Department's sneaky little claim that the statutory rates are obviously fair for file sharing, because they were put in place in 1999, with the explicit statement from Congress that these numbers were there because of internet file sharing. That sounds good, but ignores the fact that this little change in the law was pushed almost entirely by entertainment industry lobbyists (the same folks who now run the Justice Department!) to protect their dying business model, rather than through any empirical evidence. The real original purpose of statutory rates had nothing to do with punishing personal, non-commercial use, but were very much about dealing with commercial harm.

It's a neat, but immensely troubling, trick by the entertainment industry. Sneak through bizarre and totally unsupported legislation through a Congress that's never met a stronger copyright law it didn't love, using your high paid lobbyists. Then, get those same lobbyists appointed to the Justice Department to defend it against Constitutional challenges. Regulatory capture at its finest.

Filed Under: constitutional, copyright, file sharing, fine, jammie thomas, lawsuit, music, settlement
Companies: doj