stories filed under: "gag order"

Techdirt Has Been Released From A Gag Order Regarding A Federal Investigation Into A Silly Comment

from the don't-threaten-judges,-yo,-but-don't-over-react-to-comments dept

Fri, Jul 23rd 2021 10:55am — Mike Masnick

I'm going to start off this post with a note that, in general, you should not threaten federal judges. I do understand that people often take out their anger on decisions that go in ways they disagree with by insisting that a judge is corrupt or awful or that something ought to be done, and while I understand the impulse and the instinct to vent in that manner, it's not very productive. Also, as you'll see below, it creates something of a mess. Meanwhile, it's only been a year since an angry party from a case showed up at a federal judge's home and shot and killed her son (and shot and wounded her husband). There is now legislation being proposed to keep judges' information more private to try to prevent such a thing from happening again.

So, again, don't threaten a federal judge.

And given all that, it's really not a huge surprise that the US Marshal service wants to take seriously any potential threats directed at federal judges. The problem, however, is that they aren't always the best at recognizing what is an actual legitimate threat from some rando just venting about a judge's decision.

Almost exactly a decade ago, the US Marshals Service reached out to us, asking us to remove a comment. The comment was a stupid comment. It was in response to what we felt was a dumb copyright ruling by a judge -- and the (anonymous) commenter quipped "is it time to stop murdering the corrupt yet?" It was dumb, but it was clearly someone sounding off, not making any kind of actual threat. We refused to remove the comment, and we received no further communication from the US Marshals.

Six years ago, the US Marshals service went a step further with Reason. In a story about Silk Road creator, Ross Ulbricht, a bunch of commenters had started making angry comments about judges -- including an infamous one about "wood chippers." The DOJ not only issued a grand jury subpoena to Reason, but separately hit Reason with a gag order preventing it from saying anything about it (though it leaked out).

Over the last few months, we have been barred from telling you that we potentially faced a similar situation. I am now, however, free to tell you that the US Marshals, once again, decided that they wanted to investigate a comment made on our site loosely referring to a federal judge. This happened on a post we did back in April, regarding Judge Alan Albright and his increasingly infamous situation regarding all the patent cases that he has been actively soliciting and refusing to transfer to proper districts in a timely manner.

The first comment on that post wondered whether or not anyone was investigating the apparent "corrupted impartiality" of the judge. That spurred a reply comment stating:

Hell, eventually somebody might decide that it’s cheaper to pay a hitman to just cut a brake line or something than go through discovery in that judge’s court.

So. It seems fairly obvious to me (and hopefully to you), that this comment is not, in any way, advocating for such a thing to happen. Nor is it suggesting a plan to do such a thing. It is noting -- as it says -- that someone might make that decision. Frankly, this comment didn't make that much sense to me. But, it's pretty clearly not a threat.

However, the US Marshals decided to open an investigation into that comment. We received a phone call the morning after the comment was posted, asking to speak with "someone in your subpoena compliance section" of "your legal department" to handle an incoming subpoena. To be clear, we have no legal department, let alone a subpoena compliance section of it. However, what we thankfully have is a very helpful Ken "Popehat" White on speed dial, willing to handle these matters for us.

With help from Ken, we soon received a "preservation letter" demanding that we preserve for a period of 90 days "any and all records and other evidence, including, but not limited to, transaction logs, connection logs and electronic media (uploaded images), in [our] possession relating to..." that comment and the registered user who posted it. We were told to expect a subpoena, and that the US Marshals Service was "in the process of obtaining the appropriate court orders." In addition, the letter effectively gagged us, saying that we were not to disclose the existence of the letter "in any manner that could alert the user" of the account.

We do not keep our log files for that long, so we actually had to make some temporary changes, and put in place a few technical things to make sure we complied as we awaited for the subpoena. We had every intention of fighting the subpoena, and pointing out just how ridiculous it was. Yes, it's important for the US Marshals to investigate true threats on judges. But no one could seriously read that comment as a true threat. We ended up waiting out the entire 90 days, and no subpoena arrived. Again with the help of Ken, we reached out to the US Marshals, to note that the 90 days had passed and to let them know that we believed we were no longer bound by the letter. Thankfully, the US Marshals confirmed that they would not be seeking or compelling any information from us, and the preservation letter could be considered "lifted."

It is a good thing that the US Marshals investigate threats against federal judges. I have no problem with them doing an investigation. And it's good that they seem to have realized the nature of this comment and decided not to move forward with the subpoena (though, they could have told us earlier...). But, it sure seems like the investigation (and the conclusion that there was no real threat) could have been done relatively quickly without having us need to get our "subpoena compliance section" (thanks Ken!) involved.

Filed Under: comments, gag order, judges, subpoena, us marshals

46 Comments

Add Microsoft And Another Congressional Staffer To The List Of Entities Targeted In Trump DOJ Leak Investigations

Privacy

from the just-waiting-on-the-yahoo!-revelations-now dept

Tue, Jun 15th 2021 5:29am — Tim Cushing

The hits just keep on coming. Gag orders are being lifted or expiring and we're finding out even more about DOJ leak investigations under Trump. Under AGs Jeff Sessions and Bill Barr, the DOJ targeted journalists, Congressional reps... even readers of USA Today.

The DOJ went after journalists working for the New York Times, Washington Post, and CNN while trying to hunt down the source of leaks, sending subpoenas to third party service providers hoping to acquire phone records and email metadata.

The most recent revelation exposed the DOJ's targeting of Rep. Adam Schiff -- one of Trump's many, many punching bags -- in a leak investigation. The DOJ sent a grand jury subpoena to Apple, seeking metadata for 109 identifiers, specifically 73 phone numbers and 36 email addresses. The information sought covered not only Schiff but his staffers and family members. Another Congressional Rep, Eric Swalwell, was targeted by the same subpoena.

It appears no third party was left out of the DOJ's attempt to hunt down leakers. The latest news on the DOJ's leak hunting pulls in Microsoft.

Microsoft in 2017 received a subpoena for a congressional staff member's personal email account, a company spokesperson said via email. The staffer hasn't been identified.

This subpoena came with a gag order attached.

The spokesperson added: "In this case, we were prevented from notifying the customer for more than two years because of a gag order. As soon as the gag order expired, we notified the customer who told us they were a congressional staffer."

And another two years before it was actually made public. I assume this didn't seem newsworthy to the staffer in 2019 when they were informed of the subpoena by Microsoft. But in 2021, with news about the DOJ's questionable investigative techniques breaking almost daily, it apparently seemed relevant enough to bring this to the media's attention.

Both President Biden and the DOJ have promised to stop seeking information about journalists and their sources during future leak investigations. Presumably government employees like the Congressional reps and staffers are still considered valid investigational targets when the DOJ looks for leakers. Whether this will continue to include family members of government employees remains to be seen.

The Inspector General of the DOJ has opened an investigation into these investigations. This will possibly result in even more information about its targeting of journalists coming to light. Unfortunately, it may also result in an exoneration of the DOJ, as its guidelines for seeking information about journalists were, until recently, pretty expansive. This means the DOJ could cause considerable constitutional trouble without breaking the rules it wrote for itself. If nothing else, we can hope the DOJ's promise to exclude journalists from leak investigations outlasts the current administration.

Filed Under: adam schiff, doj, eric swalwell, gag order, jeff sessions, leak investigations, surveillance, whistleblowers, william barr
Companies: apple, microsoft

10 Comments

Gag Order Lifted On Yet Another Trump DOJ Leak Investigation That Targeted Journalists

Journalism

from the serving-the-president-is-more-important-than-serving-the-people-apparently dept

Mon, Jun 7th 2021 12:00pm — Tim Cushing

Another leak investigation that involves the DOJ going after journalists' communications has been revealed. This would be the third time since Biden took office that subpoenas targeting journalists have had their gag orders removed, allowing the public to see what the DOJ was up to during Trump's unceremonious reign as president.

The previous revelations involved journalists employed by the Washington Post and CNN. This one targets one of Trump's favorite media punching bags, the "failing" New York Times. This investigation dates all the way back to James Comey's last months as the head of the FBI, a position he was ousted from when he failed to show Trump the required amount of obeisance.

The letter this week disclosing the seizure of phone records involving the Times reporters — Matt Apuzzo, Adam Goldman, Eric Lichtblau and Michael S. Schmidt — had hinted at the existence of the separate fight over data that would show whom they had been in contact with over email.

[...]

The Justice Department has not said what leak it was investigating, but the identity of the four reporters who were targeted and the date range of the communications sought strongly suggested that it centered on classified information in an April 2017 article about how James B. Comey Jr., the former F.B.I. director, handled politically charged investigations during the 2016 presidential campaign.

The article not specifically mentioned in the government's subpoena dealt with an email or memo not found in the Clinton email dump released by the State Department and available to search at Wikileaks -- one that said then-AG Loretta Lynch would throttle the investigation into Hillary Clinton's private email server. Comey, however, reopened that investigation shortly before the election, something that may have played a part in Trump's election win.

This memo, however, most likely prompted Comey to take the case public back in 2016. Comey held a press conference announcing the results of the investigation -- one that did not include criminal charges for Clinton. This is generally the sort of thing the DOJ and FBI rarely do, especially when the target of an investigation is a presidential candidate. Comey shrugged off appearances of politically-motivated impropriety twice, but still failed to satisfy his new boss' desire to be surrounded by loyalists.

The Biden Administration has placed Merrick Garland in charge of the DOJ and appears to be doing some house cleaning. Questionable investigative efforts involving leaks and journalists have been stripped of their gag orders and made public. But there's a delay here that doesn't square with the new administration's statement that it respects the First Amendment and has no interest in targeting journalists. This one rolled on for a few months after Biden's election, allowing the DOJ to continue pursuing these journalists' communications while swearing their supervisors to secrecy.

While the Trump administration never informed The Times about the effort, the Biden administration continued waging the fight this year, telling a handful of top Times executives about it but imposing a gag order to shield it from public view, said the lawyer, David McCraw, who called the move unprecedented.

The gag order prevented the executives from disclosing the government’s efforts to seize the records even to the executive editor, Dean Baquet, and other newsroom leaders.

Mr. McCraw said Friday that a federal court had lifted the order, which had been in effect since March 3, freeing him to reveal what had happened.

The DOJ was ultimately unable to obtain the email records it requested from Google. The company fought the subpoena, refusing to hand over the requested information. And with other DOJ officials recommending the case be closed because it was unlikely to result in criminal charges, the DOJ abandoned this effort and finally allowed the gag order to be lifted.

But even the lifting of the gag order was inexplicably delayed. The DOJ claimed in January that any notification would jeopardize the investigation and give targets an opportunity to destroy evidence. And in March, the DOJ continued to press for secrecy, asking a judge for permission to tell NYT's legal team but refusing to allow the targeted journalists to be notified about the government's desire to collect their email records.

While it's good to see the new DOJ express its support of journalists and the First Amendment, we need to remember Biden served two terms under Barack Obama -- a president who set records for leak investigations and prosecuted whistleblowers. Cleaning up Trump and Barr's mess is the right thing to do but the DOJ will continue to serve whoever's in charge and is always willing to wave aside constitutional concerns if it's politically expedient to do so.

Filed Under: adam goldman, doj, emails, eric lichtblau, fbi, gag order, james comey, journalism, leaks, matt apuzzo, merrick garland, michael schmidt, records requests, whistleblowing

3 Comments

Judge Says The Bureau Of Prisons Violated Michael Cohen's 1st Amendment Rights In Sending Him Back To Prison

Free Speech

from the wasn't-expecting-that dept

Thu, Jul 23rd 2020 10:47am — Mike Masnick

I wasn't expecting this, but this morning Judge Alvin Hellerstein ordered Michael Cohen released from prison, saying that the Bureau of Prisons violated his 1st Amendment rights. If you haven't been following this story beyond the fact that Cohen was sent to prison last year for tax evasion and campaign finance violations, what you need to know is that (following his request for such), Cohen was furloughed from prison to home confinement in May, as the prison system tried to lessen the number of people in prison during the pandemic. A little over a month later, he was returned to prison. While there were reports it had to do with the fact that he was seen eating out, it turned out to be because he refused to sign an agreement saying he would not speak to the media in any form, including saying he could not publish the "tell-all" book he is supposedly writing.

In a bit of role reversal, Cohen -- who had been President Trump's legal asshole threatening people who criticized the President in the past -- received a threat letter from the President's new threatdog, Charles Harder, warning him not to publish the book.

While there was some belief that Cohen's lawsuit claiming that being sent back to prison was retaliatory against his speech wouldn't get very far, given that the Bureau of Prisons is given wide leeway in how they handle those who they have within their custody, Judge Hellerstein surprised many and recognized the obvious:

“How can I take any other inference than that it’s retaliatory?” Hellerstein asked prosecutors, who insisted in court papers and again Thursday that Probation Department officers did not know about the book when they wrote a provision of home confinement that severely restricted Cohen’s public communications.

“I’ve never seen such a clause in 21 years of being a judge and sentencing people and looking at terms of supervised release,” the judge said. “Why would the Bureau of Prisons ask for something like this ... unless there was a retaliatory purpose?”

In ruling, Hellerstein said he made the “finding that the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory.” He added: “And it’s retaliatory for his desire to exercise his First Amendment rights to publish the book.”

This is a good, 1st Amendment supportive ruling, though I do wonder if it would have come out the same way if it weren't for the high profile nature of Cohen and the president. The prison system, quite frequently, retaliates against prisoners for their speech, but it would be nice if that would start to change. Unfortunately, this will probably be a one off situation, rather than anything leading to real change.

Filed Under: 1st amendment, alvin hellerstein, bureau of prisons, charles harder, donald trump, free speech, furlough, gag order, home confinement, michael cohen, retaliation

15 Comments

SmileDirectClub Sues NBC For $2.85 Billion, Claims Factual Statements And Quotes From Customers Are Defamatory

Defamation

from the litigating-market-cap-losses-as-a-service dept

Thu, May 28th 2020 4:11pm — Tim Cushing

SmileDirectClub -- maker of in-home dental appliances -- is back in the lawsuit business. A couple of years ago, the company sued Lifehacker over an article originally titled "You Could Fuck Up Your Mouth With SmileDirectClub." The company claimed any criticism of its products and techniques was defamatory. Despite the original inflammatory headline, the Lifehacker piece was even-handed, warning potential customers that semi-DIY dental work has some downsides. SmileDirect voluntarily dismissed the lawsuit a week later, perhaps sensing a judge -- even one in bogus lawsuit-friendly Tennessee -- might not agree that critical opinions, however harsh, were libelous.

Apparently hoping to undermine the "defamation" market, SmileDirectClub began tying refunds to gag orders, refusing to give unhappy customers back their money unless they signed a non-disparagement agreement. Now, SmileDirect is headed back to court to take on NBC for its critical news report. This time, SmileDirect has to talk its way past a revamped state anti-SLAPP law to get the $2.85 billion it's seeking in this lawsuit. (h/t Daniel Horwitz)

The lawsuit [PDF] appears to have been filed by lawyers being paid by the word. It's over 200 pages long and comes with a comprehensive table of contents. Longer does not mean better-developed. And it also doesn't mean the legal arguments are stronger than those found in more sensibly-sized filings.

SmileDirect says NBC's report did an incredible amount of damage to its business.

SDC’s stock price, which had been trending upward prior to the Reports, plummeted 15% the day after the Reports were published. Prospective patients cancelled their treatment. SDC’s revenue fell. And, SDC’s market capitalization dropped by over $950 million.

The company believes NBC's report (which was sensibly titled "SmileDirectClub Promises Easy Teeth Straightening. Some Patients Report Problems.") did all of this and more. The lawsuit accuses NBC of deliberately deploying lies because the reporters chose to ignore the documents and interviews SmileDirect offered when it found out this report was going to be aired. "For the clicks" is the argument SDC makes.

SDC’s employees and officers across the country, as well as SDC-affiliated doctors, witnessed their hard work being undermined by a news organization and reporter who cared more about ratings and making a splash than the truth.

However, the arguments made by the company while establishing jurisdiction seem to undercut SDC's narrative about NBC reporters deliberately avoiding contact with the company.

[N]BC knowingly and intentionally contacted SDC in Davidson County in connection with the Reports. NBC initiated, received, and responded to, communications (electronic and telephonic) with SDC employees located in Davidson County. And, NBC repeatedly solicited information from SDC employees located in Davidson County over the course of three months prior to the publication of the Reports.

[...]

NBC knowingly and intentionally traveled to Davidson County in connection with the Reports where it, among other things, interviewed an SDC officer. NBC requested an interview with an SDC officer. NBC voluntarily decided to travel to Davidson County to conduct the interview.

Here's as concise a summary of SDC's allegations as can be found in the sprawling lawsuit:

As discussed below, NBC’s online report was defamatory and disparaging because it: (a) falsely stated that treatment using SDC’s platform caused health and physical problems; (b) falsely stated that treatment using SDC’s platform can cause permanent injuries and omitted material facts to falsely imply that treatment using SDC’s platform can cause permanent injuries; (c) omitted material facts about the thoroughness and extensiveness of treatment received by patients from SDC-affiliated doctors using SDC’s platform; (d) falsely stated that treatment using SDC’s platform injured Female Patient; (e) falsely stated that treatment using SDC’s platform injured Male Patient; (f) falsely stated that patients must be protected from treatment using SDC’s platform; (g) omitted material facts to falsely imply that treatment using SDC’s platform violates government regulations; (h) falsely stated that treatment using SDC’s platform is “do it yourself” dentistry and omitted material facts to falsely imply that treatment using SDC’s platform is “do it yourself” dentistry; (i) falsely stated that SDC-affiliated doctors are not involved in treating patients and omitted material facts to falsely imply that SDC-affiliated doctors are not involved in treating patients; (j) falsely implied that treatment using SDC’s platform is not safe; (k) falsely implied that treatment using SDC’s platform is “do it yourself” dentistry; (l) falsely implied that treatment using SDC’s platform is not effective for patients; and (m) falsely implied that SDC is a dishonest company.

But SDC's allegations all seem to lead to statements that appear to be factual. The company complains about statements like "nine Congressmen also asked the FDA and FTC to investigate [Smile Direct]..." (which is factual) and "More than 1,800 complaints have been filed with the Better Business Bureau…" (also factual).

The other commentary SDC complains about comes from patients who discussed their experiences with the company's products. The lawsuit lists direct quotes from unhappy customers as defamatory statements made by NBC, conveniently ignoring the source of those quotes in favor of trying to hit a bigger target.

The other stuff listed falls into the category of protected opinion. NBC's assertion that "some" patients experienced problems is not only accurate, but it's the sort of conclusion anyone would have reached by speaking to unhappy customers or reading its BBB page. SmileDirect claims its Better Business Bureau rating makes NBC's conclusions and assertions maliciously false, but it's the sort of conclusion only a company filing a 200-page complaint could reach.

SDC’s overall score by the Better Business Bureau (“BBB”) is A+, the highest available rating. At the time of the Reports, the number of issues raised with the BBB by patients treated using SDC’s platform, including non-clinical issues, was less than 0.2%. The number of issues raised with the BBB—by patients or non-patients (i.e., people pretending to be patients)—regarding clinical issues was a small percentage of that infinitesimally small percentage, less than 0.001%.

Be that as it may, there are still more than 2,000 complaints listed on the BBB site and the site has noted the company is trying to get people to speak to a customer service rep before filing a complaint. Also, as was reported earlier this year, the company has been tying people to restrictive non-disparagement agreements before issuing refunds.

Making the lawsuit longer doesn't make it any better. The same points are rehashed repeatedly in an apparent effort to bludgeon the presiding judge into arriving at the conclusion that something this lengthy must contain viable legal arguments. But it doesn't. What's called defamation in this lawsuit is a collection of factual statements, supported opinions, and direct quotes from unhappy customers.

Tennessee's anti-SLAPP law may keep SDC from bleeding NBC for too long, but there's a good chance that law will never be tested. SDC may have wanted to keep this case at home, but suing a New York-based company for $2.85 billion means the lawsuit will have to be handled in a federal court. Tying in some state claims about alleged violations of Tennessee's Consumer Protection Act won't be enough to keep it local. Unfortunately, that may work out better for SmileDirect, which will be able to force NBC to defend itself from this lawsuit. Federal courts have been very hesitant to apply state anti-SLAPP laws to federal lawsuits, highlighting (once again) the need for a federal anti-SLAPP law.

Filed Under: criticism, defamation, gag order, slapp, slapps
Companies: nbc, smiledirectclub

SmileDirectClub Is Trying To Silence Criticism By Tying Refunds To Non-Disparagement Agreements

Free Speech

from the I-see-you're-unhappy-with-our-product.-Let-me-make-you-unhappy-about-our-ser dept

Fri, Jan 24th 2020 10:44am — Tim Cushing

The New York Times has noticed a company with the word "smile" in its name really isn't all that friendly. Nearly 2 years ago, SmileDirectClub sent legal threats to Gizmodo after a post discussing the potential drawbacks of getting your teeth fixed over the internet was published under the title "You Could Fuck Up Your Mouth With SmileDirectClub."

Nothing about the article was false. Not even the title. SmileDirectClub sells teeth-straightening devices over the internet. Most teeth-straightening devices are provided by orthodontists after x-rays and in-person examinations. SmileDirect is, well, more direct, claiming it can provide the right dental appliance without all the in-person stuff by having customers send in a mold of their teeth or by visiting a "Smile Shop" to have their mouth and teeth scanned.

The potential to have things go wrong -- especially when your only consultation during the teeth-straightening process is online chats with SmileDirect's dental staff -- is far from nonexistent. Appliances like these can cause more problems rather than fixing the one they were purchased for.

All of this was covered in the article and everything said about SmileDirect's business model was truthful. This didn't stop SmileDirect's legal reps from filing a defamation lawsuit in defamation lawsuit-friendly (pre-anti-SLAPP law) Tennessee. SmileDirect said all sorts of ridiculous things about clickbait and Peter Thiel's takedown of Gawker, but really didn't make any actionable libel allegations. That SmileDirect voluntarily dismissed its lawsuit less than a week after it filed it as good an endorsement as any for the stupid arguments in its complaint.

Anyway, the NYT is on the case now that more people are unhappy with their dental appliances and SmileDirect is more forceful in preventing unhappy people from complaining about its products and services. Here's how SmileDirect conducts business with its end users.

No x-ray or dental examination is performed but customers are required to sign a consent form saying that they did have one performed before purchasing SmileDirectClub's dental device. This removes some of the company's liability. If the customer didn't actually get this done, it can't hold SmileDirect responsible for problems that might have been caught with a real exam. Since the company appears to target people who want to avoid dental exams and save money on dental appliances, plenty of customers aren't being honest when they check that first consent box.

Then the form gets a whole lot darker.

The form also states that they cannot sue the company for any reason.

Arbitration: the best friend of every questionable company. And there's more. The company offers a very limited warranty that's tied to a very big gag order.

SmileDirectClub offers refunds within 30 days after the aligners arrive. Anything after that is considered outside the company’s official refund policy and comes with the nondisclosure provision, which it said it began using in 2016.

If your mouth does get fucked up by a SmileDirect product, you can't tell anyone about it. Refunds past the 30-day mark are handed out with restrictions that help the company keep its online reputation as squeaky-clean as possible.

When some... customers requested refunds, SmileDirectClub asked them to sign the confidentiality provision. The agreement prohibited the customers from telling anyone about the refund and required them to delete negative social-media comments and reviews, according to a copy viewed by The New York Times.

If this is a nondisparagement clause, it's illegal. The Consumer Review Fairness Act that went into effect in 2017 outlaws exactly what's happening here.

[T]he Act makes it illegal for a company to use a contract provision that:

1. bars or restricts the ability of a person who is a party to that contract to review a company’s products, services, or conduct;

2. imposes a penalty or fee against someone who gives a review; or

3. requires people to give up their intellectual property rights in the content of their reviews.

Hmm. Here's a customer complaint filed with the FDA:

I requested a refund and i was told that i have to sign a release form to be refunded. The terms of that release form include that i cannot even mention the existence of the form, seek any additional compensation for damages and (this is most concerning) i could not share any information about my negative experience publicly. And if i had already posted anything in social media about my experience, i had to remove it before they would refund me.

Looks pretty illegal to me. SmileDirectClub's critics may only be a small percentage of its customers, but they cannot legally be silenced this way. Tying refunds to gag orders is the worst form of customer service. It's pretty much just fine print extortion. SmileDirect wants unsatisfied customers to keep their fucked-up mouths shut. And now, with some nationwide coverage, it's going to realize turning refund payments into hush money does nothing to keep your reputation intact.

Filed Under: anti-slapp, consumer reviews, defamation, dental work, gag order, slapp, teeth, threats
Companies: smiledirectclub

15 Comments

Documents Show The FBI Is Targeting Financial Institutions, Credit Reporting Agencies, And Universities With NSLs

Legal Issues

from the third-parties-are-the-best-parties dept

Tue, Oct 1st 2019 11:58am — Tim Cushing

We've written several times before about the FBI and its unnatural love for National Security Letters. NSLs make the FBI tick. They're super handy, too. The FBI issues them to itself and then hands them to a variety of third parties, eliminating any judicial oversight. The fact that third parties are recipients make the Fourth Amendment (mostly) irrelevant. These work so well the FBI has used NSLs to get info the FISA court has already said it can't have.

Thanks to some modifications to NSLs by the USA Freedom Act, we're finally seeing recipients posting NSLs they've received. NSLs used to come with "forever" gag orders, preventing recipients from discussing them, much less posting the documents themselves. The new law, along with a decision from the DC Circuit Court, requires the FBI to periodically review its NSLs and decide whether the gag orders are still justified. Companies are also now allowed to demand gag order reviews themselves, rather than wait three years for the FBI to get around to it.

The end result has been the release of several un-gagged NSLs by tech companies like Facebook, Google, Yahoo, and Automattic. A FOIA lawsuit by the EFF has resulted in the largest NSL document dump to date. The released files were shared with the New York Times (which, in turn, is sharing the documents with everyone else), showing that NSLs are not just limited to tech companies and service providers. They also target any entity that might conceivably have third-party records on hand.

The F.B.I. has used secret subpoenas to obtain personal data from far more companies than previously disclosed, newly released documents show.

The requests, which the F.B.I. says are critical to its counterterrorism efforts, have raised privacy concerns for years but have been associated mainly with tech companies. Now, records show how far beyond Silicon Valley the practice extends — encompassing scores of banks, credit agencies, cellphone carriers and even universities.

While many tech companies are proactively posting un-gagged NSLs, most of the other recipients listed here haven't felt obligated to engage in transparency. Banks, credit agencies (Equifax, TransUnion, etc.), universities, and cable providers have not been publishing the NSLs green-lighted by the FBI's review process. What's included in the 1,000+ pages released to the EFF is hundreds of letters from the FBI to third party NSL recipients informing them they can publish the cleared NSLs. Many of these entities haven't.

What isn't in this stack of PDF pages are the NSLs themselves. The FBI may have cleared them for publication, but it's up to the recipients to actually publish them. If these entities aren't going to take this step, it really doesn't matter that gag orders have been lifted. Maybe the targeted customers have been informed of the FBI's interest in them. Maybe not. But the general public isn't being served by entities that are more than happy to gather voluminous amounts of information about their customers (and students) but unwilling to discuss how often they turn over that information to the federal government.

The documents also show that the FBI's review process isn't really resulting in that much more transparency. Roughly 750 letters were released to the EFF. That's a very small percentage of the NSLs whose gag orders were reviewed by the agency.

According to the new documents, the F.B.I. evaluated 11,874 orders between early 2016, when the rules went into effect, and September 2017, when the Electronic Frontier Foundation, a digital rights group, requested the information.

The release looks like a generous document dump by the FBI, but only if all context is removed. That's some of it right there: the 6% rate of return. The letters stating the FBI is fine with recipients discussing NSLs was only turned over to the EFF after a FOIA lawsuit. Finally, the NSLs we've seen published to date are the result of law that was passed in response to leaked documents that exposed the NSA and FBI's incredible surveillance powers… and how often they've abused these authorities. The government isn't being any more transparent. It's just unable to avail itself of as much opacity as it used to.

Filed Under: credit agencies, fbi, financial firms, gag order, national security letters, nsl, secrecy, universities

8 Comments

Court Rejects FBI's Argument That Discussing NSLs With Lifted Gag Orders Would Threaten National Security

Legal Issues

from the national-obtusity dept

Wed, May 22nd 2019 3:39am — Tim Cushing

The FBI uses National Security Letters like regular people use copy paper. It issues thousands of these every year. It works out great for the FBI because it gets to bypass judicial review. If it wants some identifying info, it just writes out its own subpoena, signs it itself, and slaps on an indefinite gag order preventing the company receiving the NSL from informing the targeted users, much less the rest of its customers that the FBI is poking around in its innards.

The passage of the USA Freedom Act made things a bit more difficult for the FBI. It now has to review its gag orders periodically to make sure they're still necessary. Of course, the FBI more often than not decides they are and recipients must ask a court to make the final determination.

When this happens, the FBI likes to rely on its national security arguments. These arguments also tend to bypass judicial review as many courts are willing to grant the agency deference on these issues, assuming the FBI knows more about the national security implications of lifting a gag order than the courts do.

But it doesn't always work. Some courts are probably just tired of the FBI shouting "National security!" every time someone wants to talk about its NSLs. The federal court in the northern district of California is one of these courts. It likely sees far more challenges than any other court in the land, thanks to its coverage of the Silicon Valley. As Nicholas Iovino reports for Courthouse News Service, this FBI request for indefinite silence has been shot down.

The Department of Justice must unmask the names of companies cleared to disclose details of the FBI’s warrantless demands for customers’ private information, a federal judge ruled Tuesday.

U.S. District Judge Vince Chhabria found the government failed to show how revealing the names of companies freed from gag orders that accompany national security letters (NSLs), or secret government demands for customer records, would harm national security.

Chhabria rejected arguments that releasing “this seemingly stale and harmless information” would help criminals avoid FBI detection.

The opinion [PDF] may only be three pages long, but it's more than sufficient to dismiss the FBI's weak arguments. In this case, the EFF is seeking disclosure of the companies the FBI has issued "termination letters" to. These letters end gag orders and allow companies to discuss (if they want to) the NSLs publicly. The FBI claimed this information was subject to an FOIA exemption [specifically (b)(7)(e)] -- one that protects info that would "disclose techniques and procedures for law enforcement investigations."

According to the FBI's twisted thinking, even revealing the names of companies no longer subject to gag orders would prevent the agency from doing its important national security work. After all, these are National Security Letters we're talking about. Ignored by the FBI was the obvious fact that if the recipients were now allowed to discuss un-gagged NSLs, it stands to reason anyone armed with an FOIA request should be able to access this now-public information.

First, the court points out the FBI is still engaging in plenty of secrecy with its NSLs. A very small percentage of these are no longer subject to gag orders. It stands to reason discussing this minute subset would not render this program unusable and threaten the security of the nation.

As an initial matter, the number of termination letters is minute compared to the overall number of national security letters. From 2015 to 2017, the FBI issued over 37,000 national security letters, but issued termination letters lifting nondisclosure requirements for only 750 national security letters. See Seidel Decl. ¶ 9, Dkt. No. 32-2. This alone casts doubt on whether disclosure of the terminations will reveal any sort of technique or procedure – at least beyond the already well-known technique of using national security letters.

Additionally, the FOIA request only targets NSLs for which the FBI has terminated a gag order. If it was a request for all companies the FBI has approached, it might be a problem. But the EFF is only seeking the subset where the FBI has declared -- via termination letters -- national security is no longer affected by public disclosure.

Perhaps if the terminations were issued for a random sampling of national security letters, such a small sample size could still shed light on the overall universe. But these are particular investigations, of particular people, for which the FBI has determined it is not a problem to lift the nondisclosure requirement. There’s no reason to expect that company usage patterns for that unique subset of people would reflect the company usage patterns for everyone being investigated, either now or in the future.

The court also points out releasing this information would only shed light on what the FBI has already done, not what it's currently engaged in. Presumably, termination letters accompany the closing of investigations, so there's nothing in this list of companies that would threaten ongoing investigative efforts.

In a world where technology and communication methods are changing rapidly, there’s no basis for assuming that a tiny sampling of decisions the FBI made several years prior will shed meaningful light on the decisions it’s making today.

If the FBI wants to make breathless declarations of threatened national security, it had better bring evidence to back these claims up. As the judge notes, the FBI gave the court nothing to work with.

Because the government’s allegation that aggregate disclosure of termination letters would reveal a law enforcement trend is so dubious, it was incumbent on the government to illustrate in a classified document – perhaps using specific examples – how requiring the government to turn over this seemingly stale and harmless information would constitute disclosure of a law enforcement technique or procedure, or why it would risk assisting criminals in avoiding FBI detection. But the declaration of Alan Kohler, which the Court reviewed in camera, does not accomplish that.

With that, the FBI will have to hand over the list of companies it said could go public with received NSLs -- the same list it says will wreak havoc on national security by:

A. Publicizing public information

B. Inform the public about already-known facts related to its NSL use

The court is being nice when it calls the FBI's arguments "dubious." They're patently ridiculous.

Filed Under: data, fbi, gag order, national security, national security letters, nsl

Australian Prosecutors Trying To Throw Reporters In Jail For Accurately Reporting On Cardinal George Pell's Conviction

Failures

from the oh-come-on dept

Thu, Mar 28th 2019 3:55pm — Mike Masnick

As we've covered over the past few months, Australian courts put an absolutely ridiculous gag order on anyone trying to report about the conviction of Cardinal George Pell, the former CFO of the Vatican (often described as the 3rd most powerful person in the Vatican). Pell was convicted of sexually molesting choir boys in Australia in the 1990s. This is obviously quite newsworthy, but the courts used what's known as a "suppression order" in Australia to bar anyone from revealing the information. The reasoning was that there was still another trial for Pell over different accusations, and knowing he was convicted for one might somehow unfairly influence a jury. Of course, in the US we've long dealt with this through a process of vetting potential jurors on their familiarity, and then simply barring just that juror pool from doing any further research on the issue -- and that system works mostly fine, without keeping the public in the dark about important news, and without stifling a free press.

Eventually the suppression order was lifted, after prosecutors decided to drop the second trial (which, at the very least, suggests that all this fuss to protect the sanctity of said second trial was silly all along). And, yet, prosecutors then sent out a bunch of threatening letters to journalists -- most of whom did not report publicly on the case, but who did complain about the suppression order.

And now, to show just how far Australian prosecutors will go to spit on free speech and a free press, they are now seeking jail time for members of the media over this whole mess:

Australian prosecutors are seeking jail and fines for dozens of journalists and media outlets for alleged contempt of court over their coverage of Cardinal George Pell’s child sex abuse trial last year, a court summons showed on Tuesday.

The Director of Public Prosecutions in Victoria has asked the state’s Supreme Court to send journalists to jail or impose fines for breaching a suppression order on coverage of the trial, aiding and abetting overseas media’s contempt of court, and “scandalizing the court”.

The only things "scandalizing" here are (1) George Pell's actions for which he was convicted, and (2) the prosecutors now going after journalists for their free speech.

Apparently there will be a hearing on April 15th for 23 journalists and 13 media organizations. It appears that it includes some of the top media organizations in Australia (The Age, Australian Financial Review, News Corp, etc.) and some fairly prominent journalists, including Michael Stutchbury, the editor-in-chief of the Australian Financial Review.

One hopes that prosecutors would come to their senses earlier, but now we have to hope a judge has more sense about this. Unfortunately, given other free speech cases in Australia over the years, I have little faith that this will end up well. Australia is making quite a name for itself as a country that believes in heavy handed censorship, and is against free speech.

Filed Under: australia, free press, free speech, gag order, george pell, injunction, jailtime, journalism, suppression order

38 Comments

Australia Threatening Over 100 Journalists For Accurately Reporting On Cardinal Pell's Sex Abuse Trial

Free Speech

from the free-speech? dept

Mon, Mar 4th 2019 3:23am — Mike Masnick

The Australian concept of free speech still boggles the mind -- as it appears they're not very big on supporting it. Yesterday we had our story about how journalists were finally able to report on the conviction of Cardinal George Pell, the former Vatican CFO (and often described as the 3rd most powerful person in the Vatican), over some fairly horrific child sexual abuse claims. The conviction had happened back in December, and we were among those who wrote about it at the time, focusing on the ridiculousness of the Australian court's "suppression order," barring any of the reporters who were covering the trial from writing about either the conviction or the existence of the suppression order. The ostensible reason was that there was a second trial still necessary for Pell. However, as I've noted in earlier posts, the US handles this in a much better, and less speech-suppressing manner: by (1) asking potential jurors about their familiarity with the case, and (2) forbidding just the jury pool from further researching the case. It may not be perfect, but the system does work pretty well, and avoids a massive speech suppressing blanket order from a court that would appear to violate any concept of a "free press" in Australia.

The situation with the Pell suppression order was even worse, actually, because it impacted many news organizations outside of Australia, out of fear that breaking the suppression order might lead to consequences for local staff in Australia (or even possibly abroad). Some publications in Australia certainly found ways to express their displeasure about the suppression order, such as the Herald Sun, which had the following cover page:

However, it impacted other publications as well. Many international news organizations refused to cover the situation at all, and the NY Times took the surprising step of refusing to publish any stories about the case online, but it did run stories in its print edition -- but not in the Australian print edition. This is somewhat frightening if you support freedom of the press.

But, now things are even more frightening. Apparently, Australia has started sending "notices" out to journalists who in some way covered either the case or the gag order before it was lifted:

But now, more than 100 notices have been sent to journalists, bloggers and media organizations, Bosland tells NPR from Australia. Kerri Judd, director of public prosecutions in Victoria state, notified recipients of an intent to charge them with offenses for their coverage of the trial.

Bosland described the charges as not just violating the suppression order but aiding and abetting gag order breaches in international media, scandalizing the court, and sub judice contempt.

It's unclear if these notices have only gone to Australian news organizations or journalists, but no matter how you look at it, this is despicable. The idea that accurately reporting on the news of a conviction in a horrific scandal is "scandalizing the court" is simply messed up. A site called Pedestrian.tv claims to have the text of the letter sent to news organizations, offering them a chance to respond before they face charges:

As you will be aware, George Pell is facing prosecution for historical child sex offences in the County Court, and a suppression order was made in relation to this matter on 25 June 2018.

I have considered the above publication, and it is my opinion that the above publication breaches the suppression order, has a definite and real tendency to interfere with the administration of justice and therefore constitutes sub judice contempt. is contemptuous by reason of it scandalising the Court. and aided and abetted contempts by overseas media.

At present, I intend to institute proceedings for contempt against you. However, I have determined to allow you the opportunity to respond and to draw any relevant matters to my attention, if you wish to do so, before I institute proceedings.

According to a report in the Guardian that is (correctly) critical of these suppression orders, the various media organizations in Australia are lawyering up to fight this:

The Melbourne lawyer Justin Quill, from Macpherson Kelley, is acting for a combined group of media organisations who will defend the charges, including the Nine newspapers and TV outlets, News Corp, Channel Ten, Mamamia and Macquarie Media.

As many as 100 editors, online content people and journalists are potentially in the frame.

As that article notes, this whole situation is completely nonsensical and disconnected from reality. It also notes that Victoria, in particular, seems to issue a ton of these suppression orders compared to other Aussie jurisdictions:

Again, the contempt case against the media seems like a fantastical disconnect with events as they transpired. Ultimately, the second trial was not prejudiced because it didn’t take place and that was not due to any prejudicial reporting.

The state of Victoria has a bit of a love affair with suppression orders, issuing them at more than twice the rate of New South Wales, which is a bigger jurisdiction with larger courts, more cases and more judges.

Perhaps that explains this latest move -- in which the only things that are actual scandals are the horrific acts of George Pell, a court suppressing the media and now Victoria prosecutors seeking to create a massive chilling effect by threatening the press for their reporting. Not included in that list: reporters doing their jobs.

Many of these orders are a direct affront to open justice, freedom of the media and the community’s right to know what is happening in the courts and society generally. They are often-times made unaccompanied by adequate reasons and there is plenty of difficulty finding out if and when they have been lifted.

Freedom of speech is supposed to be an article of faith in a democracy, key components of which are the rule of law and an independent media. Americans, more than most, hold it in high regard because they have a constitution that protects reporting on matters of public importance. In fact, if the Pell trial were held in the US it would be unconstitutional to suppress reporting of the proceedings.

And, given the responses to my previous posts, some will again point out that Australia is not the US. But this is still spitting on the very idea of a free press and free expression, and that's shameful.

Filed Under: australia, free press, free speech, gag order, george pell, injunction, prosecution, suppression order, threats

33 Comments

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Techdirt Has Been Released From A Gag Order Regarding A Federal Investigation Into A Silly Comment

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Add Microsoft And Another Congressional Staffer To The List Of Entities Targeted In Trump DOJ Leak Investigations

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Gag Order Lifted On Yet Another Trump DOJ Leak Investigation That Targeted Journalists

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Judge Says The Bureau Of Prisons Violated Michael Cohen's 1st Amendment Rights In Sending Him Back To Prison

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Documents Show The FBI Is Targeting Financial Institutions, Credit Reporting Agencies, And Universities With NSLs

from the third-parties-are-the-best-parties dept

Court Rejects FBI's Argument That Discussing NSLs With Lifted Gag Orders Would Threaten National Security

from the national-obtusity dept

Australian Prosecutors Trying To Throw Reporters In Jail For Accurately Reporting On Cardinal George Pell's Conviction

from the oh-come-on dept

Australia Threatening Over 100 Journalists For Accurately Reporting On Cardinal Pell's Sex Abuse Trial

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