Report Claims Trump Pushed For AT&T Time Warner DOJ Lawsuit To Hurt CNN, Help Rupert Murdoch

from the old-boys-club dept

The late 2017 DOJ announcement that it would be suing to stop AT&T's $86 billion merger with Time Warner turned more than a few heads. While the DOJ insisted that the move was driven entirely by an interest in protecting consumers, the decision was utterly discordant with the Trump administration's often facts-optional assault on consumer protections with bipartisan support, ranging from net neutrality to basic environmental protections. And the DOJ's sudden concern about the impact of media consolidation was in stark contrast to Trump's FCC, where demolishing decades-old media consolidation rules has been a top priority.

At the time of the lawsuit, many wondered if some other motivations were really at play. After all, Rupert Murdoch had been pushing Trump for more than a year to scuttle the deal for anti-competitive reasons. Time Warner rejected a News Corp. acquisition offer in 2014, and more recently AT&T rebuffed the company's attempt to buy CNN... twice. Time Warner employees quoted at the time believed Murdoch was the driving motivation for the political pressure to quash the deal:

"According to executives I spoke with, the theory is that Murdoch privately encouraged Trump to scuttle the deal as revenge for Time Warner rejecting Murdoch’s $80 billion takeover offer in 2014. “A direct competitor, who was spurned from buying us, perhaps is trying to influence the judicial process? That’s corruption on top of corruption,” one Time Warner executive told me."

No hard evidence has proven any such connection, though if it were true, it's hard to think anybody involved in such an effort would put of of it in writing.

Another unproven theory generally gained more widespread public acceptance: that Trump had pressured the DOJ to intervene in the deal because of Time Warner-owned CNN's critical coverage of Trump. That obviously raised a lot of First Amendment questions about whether the President was pressing a government agency to help hamstring or otherwise silence a critic.

Trump and the DOJ repeatedly stated that Trump played no role in the the pressure for the suit. And Trump himself repeatedly stated he was "not going to get involved" in the case. Yet a New Yorker piece this week quotes sources who say that promise was never actually adhered to:

"...in the late summer of 2017, a few months before the Justice Department filed suit, Trump ordered Gary Cohn, then the director of the National Economic Council, to pressure the Justice Department to intervene. According to a well-informed source, Trump called Cohn into the Oval Office along with John Kelly, who had just become the chief of staff, and said in exasperation to Kelly, “I’ve been telling Cohn to get this lawsuit filed and nothing’s happened! I’ve mentioned it fifty times. And nothing’s happened. I want to make sure it’s filed. I want that deal blocked!"

Cohn, a former president of Goldman Sachs, evidently understood that it would be highly improper for a President to use the Justice Department to undermine two of the most powerful companies in the country as punishment for unfavorable news coverage, and as a reward for a competing news organization that boosted him. According to the source, as Cohn walked out of the meeting he told Kelly, “Don’t you fucking dare call the Justice Department. We are not going to do business that way."

Whether that was the end of it isn't clear. I'll note that many consumer advocates I've spoken to over the last few years believe that the DOJ under Makan Delrahim genuinely believed it was doing the right thing in challenging the suit. That of course doesn't mean Trump and Murdoch didn't try hard all the same. The piece also quotes former government insiders like Blair Levin, who ponders whether Murdoch was an architect of Trump's ire toward the deal:

"Blair Levin, the former F.C.C. official, told me, “There may be innocent explanations.” But, he adds, “Trump famously said you’re going to get sick and tired of winning, and that may not be true for the rest of America, but it sure is true of Murdoch.” He says of Murdoch, “He’s an incredibly cunning political player. He leaves no fingerprints. He’s been in the game of influencing government behavior to his benefit longer than most of us have been alive."

Of course hunches, theories, and anonymous sources aren't proof. And it remains possible that the DOJ under Makan Delrahim was just suddenly and genuinely concerned about vertical integration. Still, that flies in the face of everything the Trump administration (and particularly his friend Ajit Pai at the FCC) has stood for as they've worked tirelessly to make it easier for giant companies and broadcasters to merge. And it seems entirely possible that having been rebuffed by AT&T twice, Murdoch hoped the DOJ would win its case and force AT&T to sell off CNN to News Corporation. All under the guise of consumer protection.

If this all really was Murdoch gamesmanship, it ended in a remarkable face plant. The DOJ not only lost its initial case challenging the merger, it recently lost on appeal. In part because decades of lobbying have weakened antitrust, making it harder than ever for DOJ lawyers to make even the most obvious of points (in this case that AT&T would quickly raise its competitors prices for must have content, something that occurred before the ink deal was even dry).

The DOJ also failed because it refused to draw attention to net neutrality. The elimination of net neutrality by the Trump FCC opened the door wide to AT&T abusing its role as network operator to hamstring its competitors, most notably by only applying usage caps and overage fees on users that use competing streaming services. But the DOJ didn't mention net neutrality once during the trial, likely in part because it would have only highlighted the FCC's culpability in making this megamerger even more problematic than it already was.

Congress is still investigating whether politics and personal gain played a starring role in the Trump administration's sudden, uncharacteristic concern about monopoly power. One gets the sneaking suspicion there will be more details forthcoming.

Filed Under: antitrust, doj, donald trump, gary cohn, john kelly, mergers, rupert murdoch
Companies: at&t, cnn, fox, time warner

DHS Confirms There Will Be More And Greater Intrusiveness During Border Searches

from the welcome-to-America,-land-of-the-heavily-surveilled dept

DHS boss John Kelly continues to push for ultimate government intrusiveness, whether at the borders where the CBP will handle the getting all up in your everything, or at airports, where the TSA will examine the hell out of travelers' electronics while overlooking explosives, guns, and other more dangerous contraband.

The DHS is no longer perched atop a slippery slope. It's enthusiastically sliding down it with both hands in the air. The Center for Democracy and Technology asked the DHS the same questions a few legislators have: what are you doing to protect the rights of US citizens at the border? The answer, in the form of a noncommittal letter, is an official shrug of indifference.

Back in March, CDT, along with more than 50 other civil society groups and trade associations, wrote a letter to Department of Homeland Security Secretary John Kelly urging that he back away from DHS proposals to use border searches as a tool to collect passwords and other social media information. Today we received a response. Unfortunately, the reply largely ducks our concerns, ignoring the main issues at play and doing little to shed light on the government’s plans or put to rest controversy about its contentious proposal. This non-answer is deeply troubling because it seems to indicate that Customs and Border Protection (CBP, which is a sub agency of DHS) is doing nothing to change course from a recent, dangerous trend: the use of the U.S. border as a tool to conduct broad surveillance.

The letter [PDF] from the DHS explains almost nothing, while assuring CDT all of this is completely above board. But, as Chris Calabrese of CDT points out, we've come a long way from physical strip searches. Searches of travelers' electronic devices are far more intrusive. And yet, the DHS still seems to feel device searches are no different than taking a look in a vehicle's trunk or opening up a suitcase. Check out the spin job being done here: intrusive device searches are just a team effort on behalf of America and Americans should just be more willing to pitch in.

All items entering the country are subject to inspection, and CBP may seek the traveler's assistance in presenting his or her effects including electronic devices in a condition that allows inspection of the item and its contents. This inspection may include searching computers, disks, drives, tapes, mobile phones, and other communication devices, cameras, music and other media players, and any other electronic or digital devices. In instances where an electronic device, or portions of the content on the device, are locked or password-protected or otherwise not readily available for inspection, CBP may take Iawful measures, as appropriate, to inspect the device and its contents consistent with longstanding authority to perform border searches. These practices are consistent with various laws authorizing searches and detention…

The DHS has reduced "exposing your entire digital life" to "presenting effects." This isn't an answer to CDT's queries. It's just propaganda.

The DHS also unhelpfully points to a 2009 Privacy Impact Assessment, which covers the search of electronic devices at the border. Again, this does little more than inform readers many of their rights are gone and won't be coming back. After spending several pages saying DHS/CBP will do all it can to minimize intrusion, protect harvested data/communications, and require badges and such to prevent unlawful access to seized digital goods, the report closes with the sheet handed to travelers when their devices have been taken by CBP officers. It states, in plain English, that CBP officers can perform suspicionless searches of electronics and hope it morphs into a justified search by the time the CBP is done searching them.

CBP will contact you by telephone when the examination of the electronic device(s) is complete, to notify you that you may pick-up the item(s) during regular business hours from the location where the item(s) was detained. If it is impractical for you to pick up the device, CBP can make arrangements to ship the device to you at our expense. CBP may retain documents or information relating to immigration, customs, and other enforcement matters only if such retention is consistent with the privacy and data protection standards of the system in which such information is retained. Otherwise, if there is no probable cause to seize information after review, CBP will not retain any copies.

As Calabrese points out, none of this seems likely to make the nation safer, much less minimize Constitutional violations.

As we told DHS back in March, the practical result is that border crossing will require full digital disclosure – exposing not just our personal information but also the tools we use to bank, communicate, and participate in our digital lives. This will not just infringe on free expression and privacy, but will also expose our personal information to the federal government who has a terrible track record of keeping such information safe. Ironically, it’s unlikely to have any security value, since bad actors conceal their accounts and the government drowns in information from innocent people.

The DHS has no answers. Things will get worse and are unlikely to get better. It's easy for government power to expand but almost impossible for it to retract. Since terrorism will always exist in one form or another, the government will always be able to justify mission creep and the further diminishment of civil liberties.

Filed Under: border searches, dhs, electronics, homeland security, john kelly
Companies: cdt

DHS Boss Drums Up Fear Using The FBI's Useless Terrorism Investigation Stats

from the [extremely-Count-Floyd-voice]-'threat-assessments-ooooooooh' dept

Want to know how much of a threat terrorism poses to the United States? Just ask an agency whose relevance and budget depends on projecting the appearance of a constant threat. Here's John Kelly, the new head of the DHS:

The threat to our nation and our American way of life has not diminished. In fact, the threat has metastasized and decentralized, and the risk is as threatening today as it was that September morning almost 16 years ago.

As I speak these words the FBI has open terrorism investigations in all 50 states, and since 2013, there have been 37 ISIS-linked plots to attack our country.

The problem with swearing on a stack of FBI statements is these assertions are completely meaningless. The FBI's a well-oiled terrorist-crafting machine at this point, so it can come up with whatever number of ISIS-linked plots is needed to further the agenda of multiple government agencies.

As for "open terrorism investigations," it would be much more helpful if the FBI didn't term nearly everything it does an "investigation," even when there's nothing worth investigating. As we've covered here before, there are a few different types of investigations the FBI engages in, starting with something that looks a whole lot like an investigation (in terms of information the FBI can obtain), but really isn't. These "investigations" are called assessments, and it takes almost nothing at all to get one of these underway. Emily Hockett and Michael German of Just Security explain how the guidelines for assessments changed radically after the passage of the FISA Amendments Act in 2008.

The most drastic change came in 2008 with a set of guidelines issued by then-Attorney General Michael Mukasey, who today is an ally of President Trump. The 2008 Guidelines created a new type of investigation called an “assessment.” Assessments permit physical surveillance, database searches, interviews, racial and ethnic mapping, and the recruitment and tasking of informants without any factual or criminal predicate, that is, without any objective basis to suspect the target of the investigation has violated any law, or is likely to in the future.

Because Kelly's statement doesn't clearly define what sort of investigations the FBI is engaged in, it's quite possible the FBI only has assessments underway in several states. Rather than portray the nation as a hotbed of potential terrorism, the presence of assessments indicates nothing at all. That the FBI can engage in surveillance without "any factual or criminal predicate" is disturbing enough. Misrepresenting the depth of these investigations to further a narrative of fear is carelessness at best. It's deeply dishonest at worst.

But even if we are to take the DHS head's word at face value -- that the FBI actually has real investigations opened in all 50 states, the word "investigation" still doesn't mean much. It should never be assumed an investigation is actually an indicator of terrorist activity. There are also "preliminary investigations" -- a step above assessments but below the FBI's standard for an actual investigation. These, too, can be based on almost nothing.

Preliminary investigations require only “information or an allegation,” and contrary to Comey’s testimony, the allegation does not need to be “credible.” A 2010 Inspector General report found the FBI opened preliminary investigations on political advocacy organizations based on mere speculation that the subjects might commit a crime in the future, and the agents themselves often made the required “allegations.”

Comey's statement -- the one cited by John Kelly -- claimed all FBI investigations need "a credible allegation of wrongdoing or reasonable basis…" This obviously isn't true. Using the presence of FBI investigations to support claims of a persistent terrorist threat gives the FBI far too much credit.

The extremely low bar the FBI must avoid tripping over on its way to unwarranted (in both senses of the word) surveillance gives it plenty of busywork to keep agents and analysts busy. It does not, however, make the United States any safer.

From 2009 to 2011, the first two years the Mukasey guidelines were in place, the FBI opened over 82,325 assessments, of which only 3,315 found information that warranted opening preliminary or full investigations.

Given the preliminary investigation hurdle doesn't rise above shin-high, assessments seem to be a convenient excuse for surveilling Americans and adding this to the FBI's overstuffed databases. FBI terrorism investigations are a completely useless metric for gauging the domestic terrorism threat. But, hey, whatever sells more government power.

Filed Under: dhs, fbi, fear mongering, investigations, john kelly, terrorism

DHS Boss Calls For More Fear, Less Encryption

from the Frightened-States-of-America dept

The Trump administration is rebranding the country: Make America Fear Again. In response to a national crime wave that doesn't exist, the head of the DOJ is rolling back police reform and replacing it with extra "toughness." Under the new regime, law enforcement officers will have the full (and, apparently, unconditional) backing of the White House.

The DHS is joining the DOJ in flexing its new muscle. DHS Secretary John Kelly has already stated he's looking to turn requests for visitors' social media/email account information into demands, which would include the mandatory relinquishment of account passwords.

Both agency heads have expressed a desire to do battle with US citizens by revitalizing the fed's war on marijuana, despite legalization referendums being passed by popular vote in several states.

Kelly... course-corrected on a previous statement he made regarding the dangers of marijuana.

Calling it “a potentially dangerous gateway drug that frequently leads to the use of harder drugs,” Kelly vowed that DHS personnel would continue to investigate and arrest those involved in illegal trade of the drug.

That comes after Kelly on Sunday told “Meet The Press” host Chuck Todd that marijuana was “not a factor” in the war on drugs, arguing that solving the nation’s drug problem does not involve “arresting a lot of users.”

These comments came during Kelly's first major public speech since taking office. His "course-corrected" statement echoes DOJ head Jeff Sessions' take on marijuana, a drug only found dangerous by agencies whose budgets rely on marijuana being viewed as a threatening "gateway drug."

Both are also looking to toss more immigrants out of the country, theorizing that stricter immigration control will somehow curb drug cartel violence -- almost all of which is contained completely in other countries. Kelly mentioned Salvadoran drug cartel MS13 in passing, claiming it was responsible for acts of violence and stateside human trafficking.

Attorney General Jeff Sessions was even less kind in his appraisal, delivering comments that made it sound as though the only thing standing between the US and societal collapse was American law enforcement:

When we talk about MS-13 and the cartels, what do we mean? We mean criminal organizations that turn cities and suburbs into warzones, that rape and kill innocent citizens and who profit by smuggling poison and other human beings across our borders. Depravity and violence are their calling cards, including brutal machete attacks and beheadings.

It is here, on this sliver of land, where we first take our stand against this filth.

The DHS head is also capitalizing on Trump's dark -- and deeply-inaccurate -- view of national security. His speech portrayed the country as being under ceaseless attack from innumerable evil forces.

“We are under attack from people who hate us, hate our freedoms, hate our laws, hate our values, hate the way we simply live our lives. And we are under attack every single day,” he warned. “The threats are relentless.”

Kelly covered a wide swath of issues — from transnational criminal organizations to cyberattacks to homegrown violent extremism, often using graphic descriptions of human suffering to illustrate the dangers.

The speech harkened back to President Trump’s inaugural address to Congress, in which he described “American carnage” outside of the Beltway.

No agency benefits more from the perception of an insecure homeland than the Department of Homeland Security. But the trickle-down effect of fear-based policy-making helps other agencies as well.

In his speech, Kelly tacitly aligned himself with the only Obama holdover Trump seems to like: FBI director James Comey.

He warned that proliferating encrypted communications technology would soon make it “impossible” to track terrorist threats.

Kelly had more to say on that subject in relation to Trump's still-unseen cybersecurity executive order. Supposedly, an updated version of the draft released in February is due any day now, and no matter what's in it, Kelly fully supports it.

“I’m standing by with bated breath,” Kelly said when Frank Cilluffo, director of the university’s Center for Cyber and Homeland Security, asked if there was any news on the order. “I can’t wait.”

Presumably not referencing the FBI's counterterrorism sting operations with the phrase "homegrown terrorism," Kelly again pointed to encryption as being part of the problem.

“What’s feeding homegrown terrorism is the Internet. They publish revolting how-to manuals,” Kelly said. “Thanks to proliferating encryption devices, these individuals are becoming harder and harder to detect. Our nation’s youth are prey to these predators.”

Between John Kelly, AG Jeff Sessions, and CIA head Mike Pompeo, the administration seems interested in sacrificing citizens' freedoms and protections on the altar of national security. All three are hoping loaded, hyperbolic language will convince more Americans to give up these protections willingly. Those who don't will probably be viewed as enemies of the nation -- and that includes any legislators who appear reluctant to give these agencies everything they want. Kelly again:

“If lawmakers do not like the laws they’ve passed and we are charged to enforce — then they should have the courage and skill to change the laws. Otherwise they should shut up and support the men and women on the front lines,” Kelly said, to a burst of applause in the auditorium.

This is wonderful stuff if you're a fan of authoritarianism. Shut up and show your support. It's a message that's been sent several times by the new president. Now, it's being echoed by his top officials.

Filed Under: crime, dhs, encryption, fear, going dark, john kelly

DHS Secretary Says Agency Is Planning On Demanding Foreigners' Social Media Account Passwords

from the processing-the-fuck-out-of-immigrants-and-visitors dept

Last summer, the DHS started asking visitors to the US to supply their social media handles. It was all on a strictly voluntary basis, of course. But that doesn't mean some immigrants and visa seekers didn't do exactly as they were asked, either due to a language barrier or figuring that turning down this request might harm their chances of entering the country.

Six months later, the DHS made it more official, unofficially. An "optional" section in the DHS's online visa application process asked for account info for multiple social media platforms, including (strangely) Github and JustPasteIt. Again, officials assured everyone this was optional and the information was to be used to assess the threat levels of incoming foreigners. Again, the DHS probably harvested a fair amount of information despite the optional nature of the request. Like any cop asking if you'd "mind if they look around the car a little bit," the request carried unspoken threats that things might be a bit more difficult if the request was denied.

Now, news comes that the DHS is planning on going even further. Say goodbye to optional social media account disclosure. The DHS wants to be inside travelers' [social media accounts], according to this report from Federal Computer Week.

John Kelly, the new secretary of the Department of Homeland Security, testified that foreign travelers coming to the United States could be required to give up social media passwords to border officials as a condition of entry.

"We want to say, for instance, which websites do you visit, and give us your passwords, so we can see what they do on the internet," he said at a Feb. 7 House Homeland Security hearing, his first congressional hearing since his Senate confirmation. "If they don't want to give us that information, they don't come in."

Thanks, Trump. Kelly noted that the recent, not-even-fully-legal-yet travel ban has given the DHS the perfect excuse to start behaving in a more totalitarian fashion.

[H]e added that President Donald Trump's freeze on entry to the U.S. by citizens of seven countries, "is giving us an opportunity… to get more serious than we have been about how we look at people coming into the United States."

Perhaps this will be deployed the way the DHS's other attempts to peer into travelers' social media accounts has: to make it "optional," with the implicit threat that rejecting the agency's advances will result in zero forward progress beyond the nation's borders.

DHS Secretary Kelly isn't much for implicit threats. He prefers his threats (at least those he makes) to be explicit.

[I]f they truly want to come into America, then they'll cooperate. If not, you know, next in line.

Kelly also shouldered some of the blame for the disastrous travel ban roll out. In a too little, far too late mea culpa, Kelly suggested it might have been better to consult with Congress first. Kelly did not offer further details as to whether this would have just been a token gesture or whether the administration could have been talked out of the unpopular, possibly-illegal travel ban by legislators.

Fifteen years ago, a terrorist attack was exploited to expand government power -- especially in the intelligence and law enforcement arenas. Fifteen years later, fear-mongering politicians and officials are still dining out on that attack, selling fear and buying government power real estate while using War on Terror eminent domain "orders" to carve holes in civil liberties. The Trump Administration has already made it clear it won't extend any of our rights to citizens of other nations. The president's new DHS head is right on top of ensuring visitors and immigrants are welcomed with maximum intrusiveness.

Filed Under: cbp, dhs, john kelly, passwords, privacy, social media