Tesla 'Self-Driving' NDA Hopes To Hide The Reality Of An Unfinished Product

from the I'm-sorry-Dave-I-can't-do-that dept

There isn't a day that goes by where Tesla hasn't found itself in the news for all the wrong reasons. Like last week, when Texas police sued Tesla because one of the company's vehicles going 70 miles per hour in self-driving mode failed to function properly, injuring five officers.

If you hadn't been paying attention, Teslas in self-driving mode crashing into emergency vehicles is kind of a thing that happens more than it should. In this latest episode of "let's test unfinished products on public streets," the Tesla vehicle in "self-driving" mode's systems failed completely to detect not only the five officers, but their dog, according to the lawsuit filed against Tesla:

“The Tesla was completely unable to detect the existence of at least four vehicles, six people and a German Shepherd fully stopped in the lane of traffic,” reads the suit. “The Tahoes were declared a total loss. The police officers and the civilian were taken to the hospital, and Canine Officer Kodiak had to visit the vet."

Of course for Musk fans, a persecution complex is required for club membership, resulting in the belief that this is all one elaborate plot to ruin their good time. That belief structure extends to Musk himself, who can't fathom that public criticism and media scrutiny in the wake of repeated self-driving scandals is his own fault. It's also extended to the NDAs the company apparently forces Tesla owners to sign if they want to be included in the Early Access Program (EAP), a community of Tesla fans the company selects to beta test the company's unfinished self-driving (technically "Level 2" driver-assistance system) on public city streets.

The NDA frames the press and transparency as enemies, and urges participants not to share any content online that could make the company look bad, even if it's, you know, true:

"This NDA, the language of which Motherboard confirmed with multiple beta testers, specifically prohibits EAP members from speaking to the media or giving test rides to the media. It also says: "Do remember that there are a lot of people that want Tesla to fail; Don't let them mischaracterize your feedback and media posts." It also encourages EAP members to "share on social media responsibly and selectively...consider sharing fewer videos, and only the ones that you think are interesting or worthy of being shared."

Here's the thing: you don't need to worry about this kind of stuff if you're fielding a quality, finished product. And contrary to what Musk fans think, people concerned about letting fanboys test 5,000 pound automated robots that clearly don't work very well are coming from a valid place of concern. Clips like this one, for example, which show the Tesla self-driving system failing to perform basic navigational functions while in self-driving mode, aren't part of some elaborate conspiracy to make Tesla self-driving look bad and dangerous. There's plenty of evidence now clearly showing that Tesla self-driving, at least in its current incarnation, often is bad and dangerous:

Ever since the 2018 Uber fatality in Arizona (which revealed the company had few if any meaningful safety protocols in place) it's been clear that current "self-driving" technology is extremely undercooked. It's also become increasingly clear that widely testing it on public streets (where other human beings have not consented to being used as Guinea pigs) is not a great idea. Especially if you're going to replace trained testers with criticism-averse fanboys you've carefully selected in the hopes they'll showcase only the most positive aspects of your products.

We've been so bedazzled by purported innovation we've buried common sense deep in the back yard. Wanting products to work, and executives to behave ethically, is not some grand conspiracy. It's a reasonable reaction to the reckless public testing of an unfinished, over-marketed product on public streets.

Filed Under: cars, nda, self-driving, transparency
Companies: tesla

There's a Growing Backlash Against Tech's Infamous Secrecy. Why Now?

from the the-time-has-come dept

“How Silicon Valley’s Tech Giants Use NDAs to Create a Culture of Silence,” stated a Business Insider piece on July 27, 2021. “To understand how Non-Disclosure Agreements (NDAs) have come to form the backbone of Silicon Valley's culture of secrecy,” explained Matt Drange, “Insider reviewed 36 agreements shared by tech workers.” It showed how management mistakes and misconduct hide in the silence of those NDAs. “The secrecy is by design … leaving the true extent of wrongdoing in the workplace a mystery.”

“The use of NDAs, including in trivial or routine circumstances like visiting a tech office, is ironic in an industry that praises openness and transparency,” elaborated Shira Ovide in her New York Times newsletter. She called it an unnecessary “exercise of power.”

Yael Eisenstat, a former Facebook employee, criticized this power in a Washington Post OpEd on August 3, 2021. “A handful of technology companies have unprecedented - and unchecked - power over our daily interactions and lives. Their ability to silence employees exacerbates that problem, depriving the public and regulators of a means to analyze actions that affect our public health, our public square, and our democracy.”

This recent backlash against tech’s infamous secrecy is long overdue. It became possible as a result of a broader uprising against Big Tech, AKA the Techlash (tech-backlash). But for decades, it wasn’t the case. In the power relations between the tech giants and the media, journalists’ access to sources within those companies was tightly controlled, and “access has always been a bargaining chip.”

The Roots of Tech’s Secrecy Culture

In the mid-1990s, when the dot-com boom started to gather steam, Silicon Valley went from semiconductor fab plants in South San Jose to an industry of hot technologies. The tech coverage focused on the brilliance of the tech CEOs who were daring to take on established industries and old hierarchies. The consumers wanted a ‘backstage pass’ to those rock stars. It was also all that the tech reporters wanted, access.

But the common experience for tech journalists was that if their coverage were critical or hard on the companies, their level of access would either go on hiatus or disappear altogether. Many of them complied with this tradeoff.

The most secretive company was always Apple. Tim Cook once said, “One of the great things about Apple is: We probably have more secrecy here than the CIA.”

By keeping the communication channels closed, the companies had leverage over those to whom they give access. “If you want access to Apple, you can’t upset them,” a Gizmodo reporter described. “Apple and Google are masters of grooming reporters to do what they want and provide access only to folks they think will make them look good,” the freelancer journalist Rose Eveleth explained.

The companies also increased their tendency to brief reporters “on background.” In this method, the tech PR teams and companies’ employees agree to talk, but the reporter cannot quote anything said in the conversation. Thus, the information cannot be transmitted to the readers. The experience can be infuriating, as Adrienne LaFrance from The Atlantic described: “I got through an entire interview with a product manager at Apple, only to be told, after the fact, that it was presumed to be ‘on background.’ ‘Everyone knows this is how we do things,’ a spokesman explained apologetically.”

Tech journalists and bloggers acknowledged getting used to “not having an oppositional journalistic culture.” Those who were asking the tough questions had to walk a tight rope when the combination of access and unfavorable coverage was quite rare.

The Intensifying Revolt During the Techlash

The turning point in tech journalism followed Donald Trump’s victory in November 2016. According to research about the emerging tech-backlash, the pivotal year was 2017 as a result of various tech scandals, including foreign election meddling; disinformation wars; extremist content, and hate speech; privacy violations; allegations of an anti-diversity, sexual harassment, and discrimination culture. The accumulation of those issues created a profound sense of concern around content moderation, algorithmic accountability, and monopoly power. The companies’ secrecy became a means of evading responsibility.

“Corporations such as Apple, Google, and Uber have become infamous for their secrecy and unwillingness to comment on most matters on-the-record. Tech reporters, myself very much included, have not done enough to push them to do otherwise,” claimed Brian Merchant from Vice. He called his fellow journalists to push back against these ossified norms: “I am no longer going to listen to a public relations representative try to change my mind ‘on background’ with unquotable statements attributable to no one. No reporter should, not when the stakes are as high as they are.”

His article, from July 2019, generated a ‘call to arms’ by leading journalists, unwilling to propagate it any longer. It reflected a more profound change in the power dynamics between Big Tech and the journalists, who had enough. Later on, the Covid-19 pandemic acted as an accelerator, and the Tech vs. Journalism battle intensified into a full-blown “cold war.” The stakes were even higher than before.

In June 2021, a Mother Jones piece took the allegations against the PR tactics to the next level. It focused on Amazon and described how it “bullies, manipulated and lies to reporters.” Amazon’s press team was accused of engaging in deceitful behavior. The tech reporters also pointed out that “Amazon has recently begun providing more access before a story is published,” but complained it is done “in limited and often unhelpful or unrelated ways, by offering things like off-the-record or background interviews with the press team or approved employees.”

It is often the case that the more important stories are coming from “un-approved” employees. This is how Casey Newton revealed Facebook’s content moderators’ working conditions in The Trauma Floor or Bodies in Seats exposés. The workers openly described how they developed severe anxiety while still in training and struggled with trauma symptoms long after they left.

Other tech employees, who experienced a reckoning around their companies’ role in society, also started approaching the reporters with allegations of corporate misdeeds. Some of them didn’t speak anonymously but instead put their name on it, agreeing to full exposure. The fact that whistleblowers experienced legal risks, retaliation, and emotional scars did not stop additional workers from joining their colleagues. Breaking their NDAs or handing them to a reporter are parts of this growing trend of employee activism.

“You can’t have it both ways,” Scott Thurm from Wired explained in an interview. “If you don’t give us access, then, of course, we are going to rely on other people to tell the story.” The current story is not the one the tech companies want the media to tell. However, in the Techlash, it is precisely what the media is doing.

Dr. Nirit Weiss-Blatt is the author of The Techlash and Tech Crisis Communication

Filed Under: accountability, big tech, nda, secrecy, techlash, transparency

Redaction Failure Shows Grayshift Is Swearing Cops To Secrecy About Its Phone-Cracking Tech

from the paying-for-the-privilege-of-being-told-to-shut-up dept

Law enforcement loves its new tech advances. It also hates to talk about them, operating under the assumption that the business of serving the public isn't the public's business. When pressed, officials will say something about staying one step ahead of criminals. But more often the opacity is nothing more than antagonism directed at people who expect transparency from those cashing publicly funded paychecks.

In some cases, this antagonism extends to the courtroom. The desire to keep secret methods secret upends the evidentiary process. When evidence can't be laundered through parallel construction, prosecutors may drop cases if it means discussing cop tech in court. This includes devices like cell tower simulators, which have been publicly discussed for years.

Added to the mix are non-disclosure agreements foisted on agencies by government contractors. Some of these NDAs go so far as to demand agencies route public records requests through them. The FBI has occasionally pitched in, telling prosecutors to drop cases rather than discuss "sensitive" tech.

This opacity isn't just for Stingray devices. It also applies to cellphone-cracking tech sold by a handful of companies. Public records obtained by Motherboard show Grayshift -- the maker of GrayKey -- is trying to keep information about its products out of the public's hands. In a case of apparent redaction failure, the documents provide a few more details about GrayKey… as well as Grayshift's demands that this information remain secret.

"Without limiting and foregoing, you acknowledge and agree that you will not disclose the existence of any GrayKey features and solutions designed to circumvent USB Restricted Mode released in iOS 11.4.1 and updated throughout future iOS versions made available to you on or about the date hereof," one section reads.

The original document redlines the part about the Restricted Mode, suggesting this was supposed to be redacted before releasing the confidentiality agreement to the public. Unfortunately for the Illinois State Police, this slipped out.

So did some other stuff from other law enforcement agencies. Motherboard's quest for Grayshift documents also turned up a request to create an exception in public transparency laws for this specific law enforcement tech.

"I am requesting a public records exemption to disclosure for the purchase of the GrayKey system for the Digital Forensics Lab," a City of Orlando law enforcement official wrote to the chief of police in 2018, according to a copy of the letter obtained by Motherboard. "This will prohibit Purchasing from posting notice of the purchase and disclosing acquisition of this system. This will assist in protecting our forensic examination techniques, and capabilities."

This isn't the way to handle this. Agencies can attempt to withhold documents by citing exceptions, but it's up to the state Attorney General (and the courts if a lawsuit ensues) to make the final call. Law enforcement officials shouldn't be asking for new exceptions or blanket application of existing exceptions. They also shouldn't be asking to undermine part of the public procurement process by seeking to withhold even more information from the public.

As for Grayshift, it says there's nothing wrong with these confidentiality agreements. It says they only apply to "intellectual property," not the mere existence or use of the devices. So, there's no reason to redline information about tech advancements, since it's not technically intellectual property, but rather just an undetailed discussion about one application of its tech. Grayshift also says the NDAs are not meant to be read as affirming the withholding of evidence (or the source of evidence) in prosecutions. But there's no telling how its customers are interpreting the agreement and -- given the history of other tech utilized by law enforcement -- it's safe to say someone's going to believe this means cases should be dropped or evidence laundered if it involves tech they haven't discussed publicly.

Filed Under: accountability, foia, graykey, nda, police tech, secrecy, surveillance, transparency
Companies: grayshift

Company Sells Surveillance Cameras Hidden In Tombstones, Threatens Websites For Talking About Its Tombstone Cameras

from the HOT-FIST-ON-TABLE-ACTION dept

Thanks to a FOIA request by Open the Government policy analyst Freddy Martinez, we now know someone's trying to sell cops cameras they can hide in… gravestones?

A surveillance vendor that works with U.S. government agencies, such as the FBI, DEA, and ICE, is marketing spying capabilities to local police departments, including cameras that are hidden inside a tombstone, a baby car seat, and a vacuum cleaner.

The brochure highlights some of the capabilities on offer to law enforcement agencies, from the novel to the sometimes straight-up bizarre.

As Joseph Cox notes, the offerings from Special Services Group run a bit outside the expected assortment of light pole cams and surveillance-in-a-box kits. Starting after 90+ pages [PDF] of webinar announcements from Vigilant, the surveillance tech provider with a logo lifted from American currency, lists a variety of offerings, including this useful item which puts the "family" back in "crime family."

If the criminals you're tracking might find it a bit suspicious to see a child seat in car that never had one before, maybe they can be slyly observed by undercover janitors who follow them from room to room with a vacuum they never actually turn on.

And here's the tombstone camera system, which suggests grave robbing is far more prevalent than I thought it was.

SSG also offers other surreptitious recording devices, like an alarm clock/radio that can be inserted into suspected perps' hotel rooms and faux utility boxes that can be placed in non-conspicuous areas (provided no one notices the absence of conduit running to/from the mock box).

There's also scarier stuff in there as well. In addition to a variety of super-small cameras that can be mounted damn near anywhere, there's communication interception software that can apparently be implanted on suspects' phones or used by undercover officers who'd rather carry a phone than wear a wire. For whatever reason, SSG recommends using Samsung phones, but notes helpfully that other Android phones may support the software.

Then there's this: the most inconspicuous mic system yet, but one that looks uncomfortable, if not dangerous, for the person using it.

There's also a faux registration tag that can be placed over the real registration tag on a vehicle's license plate to emit trackable infrared pulses for up to 48 hours. If greater access to the vehicle is possible, the same thing can be accomplished by swapping out tail lamp bulbs for IR-flashing bulbs that allow cops to locate a vehicle using infrared or night-vision gear.

It's all in there: RFID cloning, covert recovery of suspects' PINs from alarm panels, etc., silent drills, door cutter kits, covert audio and video installation tools, and surveillance all-in-one solutions that can be moved easily from car to car to lower the risk of surveillance vehicles being burned by sitting in one place for too long.

Apparently, the release of this catalog was approved by the Irvine Police Department and its counsel. Despite that, SSG is handing out legal threats to everyone who's published the document.

When Motherboard asked Special Services Group for comment, the company did not respond. Shortly later though, a lawyer representing the company wrote a strongly worded legal email, demanding Motherboard not report on the brochure. The lawyer claimed that the brochure was protected under the International Traffic in Arms Regulations (ITAR), a set of rules that regulates the export of munitions, as well as copyright.

It sent a similar legal threat to MuckRock, claiming the publication of the document would put law enforcement at risk and said "recent world events" (Cox speculates this refers to developments in Iran) justified its obviously-baseless legal threats. Anyway, the document is embedded below and will probably bring about World War III if you start at page 93 and continue scrolling. Enjoy!

Filed Under: 1st amendment, export regulations, free speech, hidden cameras, itar, nda, secrecy, surveillance, threats, tombstone cameras, weapons
Companies: special services group, ssg

Want To See Pete Davidson Do Standup? There's An NDA You Have To Sign First...

from the sigh dept

I never stop being surprised at how often the topic of comedy and comedians makes it on our pages. Between strange concepts like comedians claiming copyright on stand-up jokes and a more violent war sometimes waged on the technology audience members carry around in their pockets, it really does feel like those in comedy should have, you know, a better sense of humor about all of this.

But to really see the combination of entitlement and disdain for the public at work in the world of comedy, you have to turn to SNL's Pete Davidson. Davidson apparently tries to smuggle in a non-disclosure agreement to anyone that buys tickets to his stand-up shows, with penalties of up to a million dollars for violations of that agreement.

Whatever you do, never tweet at a Pete Davidson comedy show. The “Saturday Night Live” cast member has recently been doling out non-disclosure agreements before each of his recent comedy shows.

Most recently, fans attending Davidson’s standup at the Sydney Goldstein Theater in San Francisco were asked to sign a lengthy contract that forbade them from tweeting or instagramming any opinions about the performance.

I find it hard to believe that such an NDA would stand up in court. Regardless, it takes a special kind of audacity to make your living in comedy, an industry completely reliant on free speech principles and social commentary, and then insist that paying customers sign away their ability to do likewise. It's enough, seriously, that you have to wonder if this is some new kind of experimental comedy that Davidson is trying out.

Except that customers who have refused to sign the NDA have reported getting full refunds of their purchases without further explanation. If this is comedy, the public appears to be waiting for the punchline.

One attendee, Stacy Young, originally discovered by Consequence of Sound, posted the alleged NDA on her Facebook. It stated: “the individual shall not give any interviews, offer any opinions or critiques, or otherwise participate by any means or in any form whatsoever (including but not limited to blogs, Twitter, Facebook, YouTube, Instagram, or any other social networking or other websites whether now existing or hereafter created).”

The document posted on Facebook also states “Individual is or will be a guest of the Company at a performance event for the purpose of viewing ‘works in progress’ creative content ...”.

The fine for breaking said NDA was a whopping $1 million. "In the event of breach of this agreement, individual shall pay company, upon demand, as liquidated damages, the sum of one million dollars, plus any out of pocket expense."

As we've said, comedians have, for some time, been wary of technology within the walls of any given performance. Cell phone bans have become somewhat common. The stated concerns for that sort of thing have typically revolved around the fear that audiences will record and distribute contents of the show to the public, or that they will record jokes out of context to make comedians sound more offensive than they intend to be. Those fears, while ultimately lame, are at least understandable.

But forcing paying customers to not have a public opinion about a show? That's purely crazy.

"I understand that comedians are protective of their material," Young added. "But to not be allowed to express an opinion, whether I liked it or not, is off-putting in an Orwellian thought police way."

Someone might want to sit Pete Davidson down and explain to him that 1984 wasn't a comedy.

Filed Under: comedy, contracts, free speech, nda, opinions, pete davidson

DOJ, Apparently Unaware Of 1st Amendment, Threaten Anonymous White House Official About To Release A Book

from the that's-not-how-this-works dept

In the past, when unflattering books about the Trump White House have been about to come out, the President has had one of his personal lawyers (such as the one famous for sending questionable threat letters to various media organizations) send dubious threat letters warning that the book not be published. However, since Trump often seems to think of the DOJ as his personal lawyers, perhaps it's no surprise that the DOJ has now sent a similar threat letter in an attempt to (1) block the publication of an allegedly anonymous White House official, and (2) identify who the individual is.

The book, called "A Warning" is apparently written by the person who last year wrote an anonymous NY Times op-ed revealing how staff in the administration worked to "thwart" parts of Trunmp's agenda to protect the country from his "worst inclinations." From all that's been revealed about the book so far, it sounds as though it won't be difficult for the administration to figure out who the author is based on what's included in the book, but they're still going for broke with this dumb strategy:

The Justice Department is going on the offensive against the anonymous author of "A Warning," telling them in a letter obtained by CNN Business that he or she may be violating "one or more nondisclosure agreements" by writing the anti-Trump book.

[.....]

"If the author is, in fact, a current or former 'senior official' in the Trump Administration, publication of the book may violate that official's legal obligations under one or more nondisclosure agreements, including nondisclosure agreements that are routinely required with respect to information obtained in the course of one's official responsibilities or as a condition for access to classified information," assistant attorney general Joseph H. Hunt wrote in the letter.

"Such agreements typically require that any written work potentially containing protected information be submitted for pre-publication review," Hunt added.

First off, this isn't how the 1st Amendment works (nor is it how the DOJ is supposed to act). Hell, even with the Snowden book, the worst the government did was seek to seize his profits. And that was because he actually had signed a lifetime pre-publication review contract, which is common for those in the intelligence community (though, there's an ongoing lawsuit challenging the Constitutionality of such things). Here, they're literally trying to block the publication, which is clearly not allowed under the 1st Amendment -- and they don't seem to have any evidence that this person is in the intelligence community or signed such a contract. In other words, this is bluster on the level that Trump normally employs with his personal lawyers, and not something the DOJ should be engaged in at all.

The DOJ letter does ask the publisher, Hachette, to at least let the DOJ know if the individual had signed a pre-publication review:

"We request that you immediately provide us with your representations that the author did not sign any nondisclosure agreement and that the author did not have access to any classified information in connection with government service," Hunt's letter concluded. "If you cannot make those representations, we ask that you immediately provide either the nondisclosure agreements the author signed or the dates of the author's service and the agencies where the author was employed, so that we may determine the terms of the author's nondisclosure agreements and ensure that they have been followed."

Obviously, asking for the NDA or the dates of service are fairly obvious attempts to figure out who the author is. Again, this is beneath the DOJ.

Indeed, the group PEN America, which works on free expression for writers around the globe, has come out with a dead on, but harsh statement, calling this move "a new low" from this particular administration.

“While we’ve gotten used to seeing President Trump’s private attorneys send letters aimed to intimidate authors and book publishers, for the Justice Department to stoop to such tactics represents a new low. The administration doesn’t know who wrote the book nor what it says. Its claim that a non-disclosure agreement may have been violated is pure speculation.

“Instead, this letter is part of the Trump administration’s ongoing campaign to turn the tables on those who expose and call out its wrongdoing. If it turns out upon publication that the author has violated a legal obligation, the Justice Department can pursue remedies at that point. To try to deter publication or bully the author and publisher are an effort at censorship through the heavy hand of government. Hachette is right to deny this spurious request.”

The DOJ should not be acting as the President's personal censor, and it's shameful that it has agreed to do so.

Filed Under: 1st amendment, anonymous, contracts, doj, donald trump, free speech, nda
Companies: hachette

FBI Tells The Governor Of Florida About Election Hacking, But Says He Can't Tell Anyone Else

from the I-guess-democracy-thrives-in-silence dept

I thought this was America, but whatever. Secrecy in all things government, despite the (often misheld) presumption that our public servants will be open and honest about issues that affect us.

It's no secret voting systems and databases are not secure. These are problems that date back 15 years, but have shown little improvement since. Election interference is just another tool in the nation-state hacking kit, and the US is far from immune from these attacks.

Federal agencies investigating election interference are at least speaking to officials in states affected by these efforts. But those officials are apparently not allowed to pass on this information to those affected the most: voters.

Gov. Ron DeSantis met with the FBI and the U.S. Department of Homeland Security last Friday to discuss the revelation in Robert Mueller’s report that “at least one” Florida county had its election information accessed by Russian hackers in 2016.

DeSantis told reporters Tuesday that he had been briefed on that breach — which he said actually happened in two counties in Florida — but that he couldn’t share which counties had been the target.

“I’m not allowed to name the counties. I signed a (non)disclosure agreement,” DeSantis said, emphasizing that he “would be willing to name it” but “they asked me to sign it so I’m going to respect their wishes.”

The FBI does love its non-disclosure agreements and gag orders. It uses these to keep service providers from talking about demands for user data and law enforcement agencies from talking about surveillance tech. It seems state officials shouldn't have to sacrifice the public's right to know for their right to know. This isn't normal, and even Governor DeSantis seemed to recognize that.

DeSantis’ comments came during a surreal Capitol news conference during which he wouldn’t elaborate on the highly unusual situation of the federal government asking a governor to sign a nondisclosure agreement, especially in a case involving that governor’s own state.

DeSantis didn't say much, thanks to this apparently voluntary gag order. He did say what was accessed was likely voter databases rather than vote tallying equipment. He also said the attack resulted from successful spearfishing targeting one of the vendors used by the unnamed Florida counties. The FBI sort of backed this up in a statement, saying none of the detected activity "impacted vote counts or disrupted electoral processes."

Still, none of this makes it clear whether or not the counties themselves have been informed of the breach. Or the vendor. Or the voters in the county. The federal government says don't talk about what you've learned, and the residents of the state are at the mercy of the man who thought the flow of information should stop with him.

But it's not just Governor DeSantis and his willingness to sign an NDA. It's the fact that the DHS and FBI demanded one be signed in the first place. This isn't how a democracy should be run. If there are threats to election security, everyone needs to know, not just a few officials at the top of the food chain.

Filed Under: dhs, doj, election hacking, election interference, election security, elections, fbi, florida, hackers, nda, ron desantis, secrecy, transparency

How Trump's Lawyer's Silly Lawsuit Against Buzzfeed May Free Stormy Daniels From Her Non Disclosure Agreement

from the own-goals dept

We've written about Trump's long-term personal lawyer Michael Cohen a few times before. The first time was back in 2015 when he made a particularly stupid threat against reporters for reporting on Cohen's own stupid comments. In case you don't remember:

“I will make sure that you and I meet one day while we’re in the courthouse. And I will take you for every penny you still don’t have. And I will come after your Daily Beast and everybody else that you possibly know,” Cohen said. “So I’m warning you, tread very fucking lightly, because what I’m going to do to you is going to be fucking disgusting. You understand me?”

“You write a story that has Mr. Trump’s name in it, with the word ‘rape,’ and I’m going to mess your life up… for as long as you’re on this frickin’ planet… you’re going to have judgments against you, so much money, you’ll never know how to get out from underneath it,” he added.

That lawsuit never materialized.

The second time Cohen was written about here was when he did sue the press. Earlier this year he actually filed a lawsuit against Buzzfeed over Buzzfeed's decision to publish the infamous Christopher Steele dossier. As we noted, this lawsuit was particularly nonsensical, as he's suing Buzzfeed for statements in the dossier made by someone else.

But, now it appears that that lawsuit may backfire in a way so spectacular, I don't think any novelist could create a twist this diabolical.

You see, Cohen is also at the center of the whole Stormy Daniels mess. If you somehow have been under a giant rock for the past month or so, Cohen has admitted to paying $130,000 to Daniels (real name: Stephanie Clifford). As multiple places have reported, Daniels was apparently paid the money as part of an agreement to buy her silence over an affair she had with Donald Trump a decade or so ago. There are a huge list of important questions around all of this, including whether the whole thing violated campaign finance laws (which it very likely did).

A big part of the fight is over whether or not Daniels can really tell her story. We've noted that Trump lawyers are threatening to go to court to stop CBS from airing an interview, while Daniels' lawyers have argued that the agreement is not valid as Trump never signed it -- while also offering to pay back the $130,000 to break the agreement (which... uh... is not exactly how it works). And I won't even get into the hilariously meaningless "private" temporary restraining order that Cohen went to an arbitration firm to get, without even notifying Daniels.

Enter Buzzfeed: one of its lawyers on the Cohen case, Katherine Bolger from powerhouse law firm Davis, Wright, Tremaine, just sent a letter to Daniels' lawyer, Michael Avenatti, asking Daniels to preserve the documents at issue (i.e., the gag agreement), noting that this may be relevant to their own defense against Cohen. This suggests a plan to subpoena this information, which would likely free it from the gag order (and hand Buzzfeed one hell of a story). The preservation demand covers a lot of potentially interesting info:

This includes without limitation all relevant ESI (including but not limited to e-mail), banking records, Word documents, spreadsheets, PDFs, reports, articles, books, memos, letters, calendar entries, handwritten notes, text messages, chats, phone messages, phone logs, audio recordings, or any other type of document or communication, final or draft, in either written or electronic format.

"ESI" in the above stands for "electronically stored information." The letter also asks for details of "any and all payments made by Mr. Cohen or Essential Consultants, LLC to Ms. Clifford, including but not limited to documents that would show the means by which the funds were transferred and/or the payments were made."

So why does Buzzfeed argue this is relevant to their own case? Well, because Cohen's lawsuit against Buzzfeed argues that Buzzfeed defamed him by implying that he had some role in possible Russian connections with the Trump campaign -- and Buzzfeed argues that cash payments Cohen was making to someone to silence them around the campaign is directly relevant to the questions at play in the lawsuit:

In his Complaint... Mr. Cohen asserts a claim for defamation based on an article published by Defendant BuzzFeed in January 2017 entitled "These Reports Allege Trump Has Deep Ties to Russia".... The Article contained an embedded document file containing a 35-page colleciton of memoranda that primarily discuss Russian efforts to influence the 2016 U.S. Presidential election, including alleged ties between Russia and President Trump's campaign... The memoranda in the Dossier contain certain references to Mr. Cohen that Mr. Cohen alleges falsely imply that he played a role in facilitating Russian interference in the election...

Mr. Cohen's role in President Trump's 2016 campaign, including but not limited to any payments he made or facilitated to third parties during or in connection with the campaign, is therefore directly relevant to the Action.

Who knows if this move will actually work, but if it does, that would be quite an incredible "own goal" by Cohen in which his own silly lawsuit unravels the other legal mess that he's been trying to keep under wraps. This is the kind of plot twist most novelists can only dream about (or reject for sounding to implausible to be real)...

Filed Under: donald trump, evidence, gag order, michael cohen, nda, stephanie clifford, stormy daniels, subpoena
Companies: buzzfeed

Harris Stingray Nondisclosure Agreement Forbids Cops From Telling Legislators About Surveillance Tech

from the lying-about-the-law-to-ensure-silence dept

The FBI set the first (and second!) rules of Stingray Club: DO NOT TALK ABOUT STINGRAY CLUB. Law enforcement agencies seeking to acquire cell tower spoofing tech were forced to sign a nondisclosure agreement forbidding them from disclosing details on the devices to defendants, judges, the general public… sometimes even prosecutors.

A new wave of parallel construction washed over the land, distancing defendants from the source of evidence used against them. Pen register orders -- used to cover the tracks of Stingray searches -- started appearing en masse, as though it was 1979 all over again. If curious lawyers and/or judges started sniffing around, agencies were instructed to let accused criminals roam free rather than expose details about Stingray devices. According to the FBI, public safety would be irreparably damaged if Stingray details were exposed. Apparently the return of dangerous criminals to the street poses no harm to the public.

Another NDA has been uncovered, thanks to a lengthy public records lawsuit. The document finally handed over by Delaware State Police to the ACLU was once referred to as "mythical" by the DSP in court. Yes, the State Police once claimed this NDA never existed. It did so while claiming it had zero communications with Harris while acquiring its Stingray. The ACLU obviously found this hard to believe and the court sent the DSP back to search harder. The Harris NDA is real. And it's spectacular.

The agreement, signed by a state police detective in 2010, stated that officers could not "discuss, publish, release or disclose any information pertaining to the (cell phone tracking) products" to the general public, to companies, to other governmental agencies, or even to other officers who do not have a "need to know."

A letter attached to the agreement, and signed by Harris Corp.'s account manager, said police are not permitted to talk about the devices with "elected officials."

"Stealth, quiet approach and skilled execution are the glue that transforms weapons and technology investments into capabilities and results," Harris Corp.'s Michael E. Dillon said in the letter. "Only officers with arrest authority are permitted to use them (Stingrays) or have knowledge of how they work."

Harris cited federal law for the conditions in the agreement, which it stated is similar to other "intelligence oriented aspects of your operations."

Yes, Harris is deliberately misconstruing federal law to ban law enforcement agencies from discussing its devices with anyone, including those who oversee departments and their spending. This means the public has zero chance of knowing what surveillance tech local officers are deploying. The part of the law cited by Harris -- 18 USC 2512 -- simply forbids entities who are not (a) wireless service providers or (b) government contractors from advertising or selling tools that intercept wireless communications. It has absolutely nothing to say about discussing these devices with other government entities (or the general public for that matter).

But as we all are painfully aware, ignorance of the law is the bread-and-butter of law enforcement. Detective Dennis Smith signed the "mythical" document [PDF] all the way back in 2010, "binding" his agency to an agreement it could have walked away from at any time with zero consequences. (Well, maybe the loss of future business deals with Harris, but no violations of state or federal laws.)

Disappointingly, state legislators seem pretty cool about being kept in the dark by a government contractor's bogus NDA.

[L]awmakers are some of the "worst at keeping secrets," said [Greg] Lavelle, the Senate minority whip.

"I'm not offended that they threw public officials in there (the non-disclosure agreement)," he said.

Lavelle may not speak for the rest of the Delaware legislature, but at this point he has to. All other legislators refused to answer questions about the Harris NDA that allowed the State Police to hide information about surveillance equipment from them. Finding out agencies they oversee have been effectively lying to them should have triggered more of a response. Instead, Delaware residents get a single shrug from a state rep and silence from the rest.

Filed Under: disclosure, due process, evidence, fbi, imsi catchers, nda, stingrays, surveillance
Companies: harris