DOJ Tells Me It Can't Find A Copy Of The Reason.com Gag Order Request It Already Released

from the good-work,-team-foia dept

As you may remember, earlier this summer, we (and many others) wrote about the ridiculous situation whereby Assistant US Attorney Niketh Velamoor not only sought a bogus subpoena for information on some hyperbolic commenters on the site Reason.com, but also obtained a gag order. At the time, I noted that I had sent in FOIA requests to the DOJ for Velamoor's initial application for the gag order as well as for the DOJ's guidelines on requesting a gag order. It turned out that Paul Levy, from Public Citizen, did the same -- though he (wisely, apparently) made his request directly to Velamoor, rather than to the DOJ's FOIA office. From that, Levy received a copy of the gag order application, which we wrote about last month.

So, imagine my surprise to have the DOJ finally respond to my FOIA request a month later, only to tell me that it could find no responsive documents to my request. There is no real detail provided. Just this: Of course, FOIA offices are notorious for claiming no responsive docs if you're not 100% accurate in your request, but I think my request was pretty clear. Here was my request:

The June 4th application for a non-disclosure order by the US Attorneys Office in the Southern District of NY concerning the subpoena issued to Reason Magazine (or Reason.com). The non-disclosure order was granted on June 4th by Judge Frank Maass and vacated on June 19th. I am seeking the original application.

And, as we learned from the document that was released to Levy, it was an "Application for § 2705(b) Grand Jury Non-Disclosure Order to Service Provider." And it was, indeed, filed and approved on June 4th. And it was clearly "In Re Grand Jury Subpoena to Reason.com." The idea that the DOJ's FOIA staff "could find no responsive documents" suggests a serious problem with how the FOIA office works -- or how the US Attorney's Office in NY files their documents. Clearly the document exists. After all it was released to Levy. And the description I gave of the document is pretty damn close to the actual document. I am, of course, free to "appeal" the "no responsive documents" claim, but it's not clear what the point is here, since the document was already released (unbeknownst to the DOJ's crack FOIA team).

At the very least, this should call into question how the DOJ handles its FOIA requests.

Filed Under: doj, foia, gag order, niketh velamoor, no responsive documents
Companies: reason

DOJ's Gag Order Request On Reason Was As Ridiculous As You'd Expect

from the rubber-stamps-are-back-in-fashion dept

A few weeks back we discussed a few times the ridiculousness of Assistant US Attorny Niketh Velamoor seeking, and then getting, a gag order preventing Reason.com's staff from revealing the existence of a subpoena for identifying information on a few of its commenters who had made hyperbolic internet comments about a US judge. We noted that the gag order itself did not give a reason, other than repeating the possibility of any or all of the officially allowed reasons for a gag order, but never specifying which ones applied. We also noted that Velamoor's initial application for the gag order had not been unsealed in the case -- and we filed a FOIA request with the Justice Department for it (along with the DOJ's guidelines on seeking a gag order). We still have not received a response on either FOIA request.

However, Public Citizen's Paul Levy went with the more direct route of reaching out to Velamoor directly and requesting the application for the gag order -- and after some initial pushback and evasions Velamoor eventually asked the court to unseal the document (as Levy notes, Velamoor perhaps used the time in between to learn what the law says and to research Public Citizen's long history of suing to get documents unsealed). And thus, Levy has now published the application and written up an analysis. You can see the application here, where it shows that, as in the rubber stamp approval of the gag order, Velamoor simply listed out the categories of reasons why a gag order can be issued and then basically said that the commenters might "flee" or "tamper" with certain data.

When the Government seeks such information via grand jury subpoena, 18 U.S.C. § 2705(b) authorizes the Court to issue

an order commanding a provider of electronic communications service or remote computing service to whom a warrant, subpoena, or court order is directed, for such period as the court deems appropriate, not to notify any other person of the existence of the warrant, subpoena, or court order. The court shall enter such an order if it determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will result in--

(1) endangering the life or physical safety of an individual;
(2) flight from prosecution;
(3) destruction of or tampering with evidence;
(4) intimidation of potential witnesses; or
(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.

In this case, such an order would be appropriate because the attached subpoena relates to an ongoing criminal investigation that is neither public nor otherwise known to all targets of the investigation, the account holder is suspected of being involved in or associated with persons involved in the conduct under investigation, and disclosure of the subpoena to the account owner or to any other person may alert subjects or targets of the ongoing investigation. Accordingly, there is reason to believe that notification of the existence of the attached subpoena will seriously jeopardize the investigation, including by giving targets an opportunity to flee or avoid prosecution, or tamper with evidence, including electronically stored information that is easily tampered with. Given the amount of time a criminal investigation commonly lasts and the particular circumstances presented here, the Government respectfully submits that 180 days is an appropriate delay of notice period for the Court to order.

Neither of these arguments make much sense, nor should they result in a gag order. Again, the comments in question were all pretty clearly hyperbolic internet statements and not real threats in any way. The idea that someone would "flee" over that is pretty much laughable. Second, the data was on Reason's servers, which the commenters would not have access to in order to "tamper" with such evidence. One could argue that it's possible they could tamper with local files, browsing history and the like, but it's difficult to see what good that would do and would just open the individuals up to further charges. Plenty of legal cases involve issuing subpoenas or notices not to tamper with evidence. There is no reason that couldn't have been done in this case without a First Amendment-stifling gag order.

As Levy notes, if this is the appropriate level of disclosure required to get a gag order in New York, then basically any subpoena would qualify for a gag order, which is tremendously problematic. And, indeed, historically such a broad stifling of speech is considered unconstitutional.

At this level of generality, such a claim could be made about just about any subpoena, but the courts have generally been skeptical of claims by federal prosecutors that they can flatly forbid witnesses before the grand jury from disclosing what they have been asked.  The leading case, from the First Circuit, summarized the case law as being divided between courts that read Federal Rule of Criminal Procedure 6(e)(2) as flatly forbidding the imposition of secrecy requirements on grand jury witnesses, and those that allow restrictions only on a demonstration of “compelling necessity ... shown with particularity.”  It is hard to see Velamoor’s affidavit as meeting that standard.  The basis for the gag order is a statute specific to subpoenas to ISP's, but Ken White has collected a number of cases  in which trial judges have demanded specific showings before issuing gag orders to ISP’s in particular.    Knowing as we do that this trial judge asked no questions to pierce the generalities in the application, as a practical matter it seems to me that the judge had no evidentiary basis for enjoining journalists from writing about a government demand to disclose the identity of anonymous speakers who, themselves, were not accused of wrongdoing.

Levy also does discuss the possibility that there is a legitimate investigation going on behind all of this, which is certainly possible, if extremely unlikely. But, at the very least, it seems nearly everyone agrees that the gag order itself was quite ridiculous and unconstitutional. And both AUSA Niketh Velamoor and the judge who signed off on it, Frank Maas, should be called to account for why they requested and approved it, respectively. It's not hard to speculate on the reasons: it seems likely that Velamoor requested it after realizing that Reason was going to tell people about it and that the story would likely become public (and, then, perhaps realizing how it looks to subpoena the identity of hyperbolic internet commenters who weren't making any realistic threats). Similarly, it seems likely that judge Maas didn't look too deeply into the situation and more or less rubberstamped the gag order because it came from an AUSA who insisted it was important for his investigation. Perhaps there's more to it, but it would seem that both Velamoor and Maas should explain what that "more" would be, if they don't want the more obvious speculations to be accepted as fact.

Filed Under: doj, first amendment, free speech, gag order, internet comments, niketh velamoor

The Outrageousness Of The Reason Gag Order

from the forget-the-subpoena dept

As you may recall, last week it was revealed that Assistant US Attorney Niketh Velamoor had, in fact, obtained a gag order on Reason, blocking the publication from discussing the bogus subpoena it had issued concerning certain juvenile comments made by commenters on the site. The subpoena was ridiculous -- but the gag order was preposterous. And it deserves a lot more scrutiny.

Over the past few days, a bunch of experts have started to weigh in on just how dangerous and scary the gag order is -- way beyond the original subpoena. As we noted in the original post about the gag order, it's quite clear that Velamoor had no legitimate reason for requesting a gag order, and that's supported by the fact that the eventual gag order -- approved by federal magistrate judge Frank Maas -- doesn't actually give a reason, but just lists out all of the possible reasons a gag order is allowed:

The Court hereby determines that there is reason to believe that notification of the existence of the attached subpoena will result in one or more of the following consequences, namely, endangering the life or physical safety of an individual; flight from prosecution; destruction of or tampering with evidence; intimidation of potential witnesses; or otherwise seriously jeopardizing an investigation or unduly delaying a trial.

Basically none of those make sense here. The actual application for the gag order filed by Velamoor has not been released -- though I've put in a FOIA request for it -- but it seems quite likely that no actual issue was raised -- but Maas gave the rubber stamp anyway. In response to all of this, there has been some really great analysis worth highlighting.

First up, Popehat teed off on this by highlighting how it appears that Velamoor was on something of a power trip just because he could get away with it:

Velamoor's conduct was threatening throughout — not threatening like a stalker or a foe, but threatening like a tired parent who wants obedience and gets angry with anything but quick compliance. The initial form letter accompanying the subpoena noted that while disclosing it was not forbidden, "disclosure of the existence of this investigation might interfere with and impede the investigation." What does it imply when a federal prosecutor tells you that?

Most people interpret it to mean that, if the prosecutor decides you've disclosed it in some undefined way that thwarts his or her investigation, you may be the prosecutor's next target. That's certainly what Velamoor implied when he told me on the phone that he was going to "look into" how I got the subpoena, and what he strongly suggested to Reason's lawyer when he told her that Reason was "coming close" to interfering with a grand jury investigation by doing exactly what they were entitled to do and exactly what the letter said they could do. Later he told Reason that he had "preliminary information" that they had violated the order and that he was "looking into it," yet another threat. It was a threat premised on a lie, since Reason only sent the subpoena to the targeted commenters before the gag order was issued, and because Reason didn't send it to me.

It's easy to dismiss this kind of government intimidation when you're not its target. It's quite another thing to live it.

There's a lot more in Popehat's piece, which is worth reading (including one more point we'll make below). Next up we have Scott Greenfield who didn't mince words about Velamoor's actions pointing out that almost every move he made was clearly designed to intimidate. This starts with Velamoor telling Ken White (during his call to Velamoor) that he "believed" there was a gag order:

Nobody “believes” there is a gag order. There either is or isn’t, and if there was, there isn’t a chance in hell that Niketh wasn’t absolutely certain about it. There was no “he believed” involved. What this reflects is that he wanted to impart the scare of a gag order without revealing that there was a gag order. Because it didn’t apply to Popehat, and couldn’t prevent Ken from publishing the subpoena. Likely, Niketh didn’t want Ken to add a prior restraint on this silliness on top of the absurdity of the subpoena itself.

Then there's the threat that Velamoor made to Reason itself upon finding out that Ken White had the subpoena, telling Reason that it was "coming close" to interfering with the investigation. Again, Greenfield points out how ridiculous that is.

See that “coming close” thing? That’s a test of fortitude, carefully taught in baby prosecutor school, that by hinting that someone may be, kinda, sorta, on the edge of committing a federal offense, it will scare the crap out of some cowardly lawyer and their fearful client, so as to obtain submission and obedience.

Do you want to court disaster? Do you want to become the target of a federal investigation yourself? Do you really want to take on the vast power of the United States of America by challenging the Niketh?

Instapundit's Glenn Reynolds also stepped in to call this what it was: an attempt to chill free speech:

Bharara's office isn't talking, but I suspect that the purpose of this exercise is to chill speech: To send a signal that whether or not the First Amendment protects your right to talk smack about a federal judge, you'd be wise not to do so if you don't want to attract the attention of the feds, who might choose to share your information with employers or the news media. Consider it a sort of prosecutorial brush-back pitch, if you like.

Of course, the First Amendment term for "brush-back pitch" is "chilling effect." The goal, presumably, is to discourage speech protected under the First Amendment, but disliked by authorities. That's an odd thing from a prosecutor who is sworn to uphold the Constitution — but, these days, perhaps not as odd as all that. Add this case to the mounting pile of evidence that out-of-control prosecutors need to be reined in. Starting, perhaps, with the Southern District of New York.

And, finally, we've got Paul Levy who compares the intimidation campaign to a similar situation involving Room Eight, a NY politics blog:

As in the Room Eight case, the United States Attorney’s Office for the Southern District of New York brought both the office’s prosecutorial power and the normal complaisance of federal judges in its invocation to bear to try to block the disclosure of the existence of the subpoena. The AUSA moved not only to block general publication but more specifically by giving notice to the anonymous commenters so that they could, if they wished, retain counsel to seek to have the subpoena quashed on First Amendment grounds.

Levy then points out that it would be useful to know what kind of guidelines the DOJ has for requesting such gag orders (I've FOIA'd that as well...).

Should we be content with the precedent set for free speech because passionate journalism succeeded in getting this gag order set aside? Or should we try to learn from this experience through a thorough investigation of the precise reasons why the US Attorney’s office believed that it was necessary to curb public disclosure of the grand jury subpoena. Does that office, or does the Justice Department generally, have any guidelines governing applications for gag orders of this sort? Are their any guidelines about the circumstances under which it is appropriate for AUSA’s to throw their weight around by threatening to investigate subpoena recipients for interfering with a criminal investigation (thus securing an informal gag order through intimidation)? Should there be such guidelines? If there are guidelines, did the AUSA in this case follow them (and does that mean that the guidelines need to be tightened)? This might well be an apt subject for investigation by a congressional government oversight committee or judiciary committee.

There was one separate issue that both Levy and Ken White at Popehat called out -- which is that Velamoor not only played all these games, but he also reached out directly to Reason after Reason had its attorney contact him. This is... generally a big no no in legal settings. Despite already having spoken to Reason's lawyer, Velamoor sent Reason publisher Mike Alissi the following email:

Mr. Alissi,

Regarding this subpoena, I spoke to someone who said she was an attorney representing Reason in connection with this subpoena.  The attorney indicated that Reason intended to notify the individuals referenced therein about the subpoena.  The attorney further refused to provide me any time to take steps to protect the confidentiality of the investigation. 

I have obtained the attached Court Order prohibiting Reason from notifying any third party about the subpoena.

Please forward the Order to the attorney and any other individuals who should be aware of it.

Thank you

Niketh V. Velamoor
Assistant United States Attorney
Southern District of New York
One Saint Andrew's Plaza
New York, NY  10007

As Paul Levy notes in his piece, this is questionable:

the AUSA sent the gag order with a cover letter directly to Reason’s editor even though he knew that Reason was represented by counsel. Query whether this letter violated the ethical rules governing contact by counsel with a party represented by counsel – certainly to me this is typical of arrogance from a high-powered office, some of whose lawyers consider themselves so elite as to be less bound by the ethical rules that govern other lawyers...

Ken White has more details on this noting that it is not technically a violation, because US Attorneys have separate rules they get to play by, but it's still rather shocking, and speaks to another example of an intimidation threat:

Niketh Velamoor had three purposes in sending that message directly to Alissi: to vent the petulance of momentarily thwarted power, to intimidate Reason by threatening it directly, and to undermine the relationship between Reason and its attorney.

Niketh Velamoor is a goon hiding behind a badge. That he went to Harvard simply makes him an unusually snobby goon hiding behind a badge.

If I did that, I'd be disciplined. If Gayle Sproul did it, she'd be disciplined. That's because nearly every jurisdiction prohibits, and recognizes as unethical, directly contacting a client who is represented by counsel on the subject of your communication. That prevents lawyers from tricking the clients of other lawyers into ignoring their counsel to their detriment. New York's Rule 4.2 of the Rules of Professional Conduct governing lawyers is standard:

In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law.

So will Niketh Velamoor be disciplined for breaking this rule?

Don't be ridiculous.

Even if state bars reliably disciplined prosecutors for misconduct — and this never happens  — prosecutors are protected by a special rule. Judges — judges just like Judge Frank Maas, who issued the gag order — have decided that prosecutors need the power to make end-runs around lawyers during the investigation phase of cases, and that this conduct is therefore "authorized by law." Courts have decided that it would be too burdensome to require federal prosecutors to abide by local ethical rules,  rules that apply to literally every other lawyer in the United States, and too restrictive of law enforcement to prevent them from making such pre-indictment contacts as they see fit.

The whole thing speaks incredibly poorly to the US Attorney's Office in the Southern District of NY (probably the highest profile US Attorney's office). It's unlikely that anyone will actually do anything about this, but it seems like the sort of thing that (at the very least) Congress ought to be investigating.

Filed Under: chilling effects, doj, frank maas, free speech, gag order, niketh velamoor, subpoena, us attorney's office
Companies: reason

Confirmed: DOJ Obtained Gag Order To Keep Reason From Informing Affected Commenters Or Discussing Subpoena

from the we'll-teach-you-not-to-comply-with-our-voluntary-stipulations dept

A DOJ subpoena leaked to Ken "Popehat" White showed the government was more than willing to stomp all over free speech to "protect" unthreatened federal judges. The order targeted comments at Reason.com that -- while inflammatory and ugly -- were decidedly not "true threats." Even if one was inclined to believe Reason commenters were going to hunt down the judge who presided over the Dread Pirate Roberts trial and use bullets/woodchippers to make her "pay" for her heavy-handed sentence, there was no non-ridiculous way to perceive someone saying "there's a special place in hell" for Judge Katherine Forrest as somehow being a "true threat."

While White (and many others) commented on the subpoena, Reason itself remained quiet on the matter, outside of a short post asking commenters to refrain from commenting at Reason on the "subject matter" of Popehat's post. About 10 days later, White speculated that there could be a gag order in place, citing a couple of anonymous tipsters, as well as his own conclusions drawn from the available evidence.

The existence of a gag order would be an active effort on the part of the government to chill speech at Reason, preventing it from discussing the subpoena it had received as well as encouraging it to extend this chilling effect to its commenters -- which it did.

No more speculation is needed. Reason did indeed receive a gag order related to the DOJ's subpoena.

For the past two weeks, Reason, a magazine dedicated to "Free Minds and Free Markets," has been barred by an order from the U.S. District Court for the Southern District of New York from speaking publicly about a grand jury subpoena that court sent to Reason.com.

That gag order has now been lifted. Reason's attorney discussed the matter with the Attorney General's office, pointing out the obvious fact that the subpoena and the comments it targeted were public knowledge, thanks to Popehat's post.

As ridiculous as the subpoena and the circumstances surrounding it were, Reason still felt compelled to maintain silence while the gag order was in effect. Reason's Nick Gillespie and Matt Welch note that the subpoena originally appeared without an accompanying gag order. Instead, it only contained a request that the contents of the order not be shared with anyone.

The Government hereby requests that you voluntarily refrain from disclosing the existence of the subpoena to any third party. While you are under no obligation to comply with our request, we are requesting you not to make any disclosure in order to preserve the con?dentiality of the investigation and because disclosure of the existence of this investigation might interfere with and impede the investigation.

Moreover, if you intend to disclose the existence of this subpoena to a third party, please let me know before making any such disclosure.

After a discussion with the Assistant US Attorney General, Reason notified the commenters affected, thus allowing them to retain counsel if they wished to assert their First Amendment right to anonymity.

At about 10:30 am ET on Thursday, June 4, our attorney Gayle Sproul (of Levine, Sullivan, Koch, & Schulz) called Velamoor to discuss the subpoena. The call did not go well. Sproul asked [AUSA Niketh] Velamoor to consider scaling back the scope of the subpoena by omitting the more benign commenters. Velamoor said simply, "No." Then Sproul informed him that we would be notifying our commenters about the subpoena to give them the chance to defend their rights to remain anonymous, and that we would not comply with the subpoena as it related to any commenters who moved to quash the subpoena before our compliance deadline. Sproul explained to him that there is case law firmly establishing that these commenters have the right to speak anonymously, and that we would withhold the information of anyone fighting the subpoena. Velamoor disputed that any such free speech rights exist. He asked that we delay notifying the commenters so he could get a court order prohibiting us from disclosing the subpoena to them. We refused. Sproul pointed out that we were perfectly within our rights to share the subpoena given the law and the wording of his own letter. Velamoor then suggested that Reason was "coming close" to interfering with the grand jury investigation.

After this call, Reason notified the commenters. Six hours later, the gag order arrived, accompanied by an email and another phone call that saw Velamoor follow up his inability to recognize free speech protections with bogus accusations of criminal behavior.

Having already suggested that Reason might have interfered with a grand jury investigation, Velamoor contacted Sproul on the afternoon of Friday, June 5, in response to a letter from her explaining the commenters' constitutional rights and laying out the timeline of Reason's notification to them. Velamoor told her that he now had "preliminary information" suggesting that Reason was in violation of the court order. Sproul said we were not and asked for further information. Velamoor refused to give any specifics, saying simply that he was "looking into it further."

So as of this point in the saga, Reason had been subpoenaed, we had been vaguely—and falsely—accused by a United States Attorney's office of actions verging on obstruction of justice and contempt of court, and we were now told that we were being investigated further.

The accusations weren't the only vague part of this debacle. The gag order itself is straight boilerplate, which suggests the DOJ hasn't dug very deeply into the situation it's issuing court orders for. The opening paragraph is nothing more than a list of possible reasons for obtaining a gag order, none of which fit this specific situation.

The Court hereby determines that there is reason to believe that notification of the existence of the attached subpoena will result in one or more of the following consequences, namely, endangering the life or physical safety of an individual; flight from prosecution; destruction of or tampering with evidence; intimidation of potential witnesses; or otherwise seriously jeopardizing an investigation or unduly delaying a trial.

Not a single one of these potential scenarios fits "overzealous investigation of normal internet comment thread hyperbole," but then, of course, no subpoena/gag order boilerplate ever would. Combined with the gag order, this subpoena is nothing more than government bullying. Unfortunately, it's a grand jury subpoena, and grand juries aren't exactly known for their thoughtful decisions or balanced presentations of evidence.

As the Reason writers point out, the site's comment thread is often a profane and highly-offensive battleground:

Reason's unmoderated comment space is rare among comparable publications and has, over the years, developed into a forum that is by turns exciting, intellectually advanced, outlandish, cringe-inducing, and more foul-mouthed than any locker room this side of the Crab Nebula. It is something to be celebrated as a voluntary community that can be engaged or ignored as the spirit moves you (we say that as writers whose work and physical shortcomings rarely escape unscathed from any thread).

As ugly as it is, it's free speech, it's protected and it's to be celebrated, rather than chilled into a pale shadow of its former self. When the government wades into comment threads armed with subpoenas, gag orders and a willingness to deliberately misread the sort of hyperbolic "discussion" native to the internet, it does harm to the First Amendment it's supposed to be protecting.

To live in a world where every stray, overheated Internet comment—however trollish and stupid it may be—can be interpreted as an actionable threat to be investigated by a federal grand jury is to live in a world where the government is telling the public and media to just shut up already.

Normally, I would say something like, "One hopes this will be tossed as soon as a judge reads the complaint," but it's a grand jury handling this, so those deciding whether or not probable cause exists to hand out indictments likely won't have the legal background nor the inclination to go against the prosecutor. Instead, they'll be given a narrative by the prosecutor and a list of recommended charges. Once those charged face a judge, they may find the indictments tossed, but that's a long, dark road to travel just for talking about bullets, woodchippers and hell's special places in a comment thread.

Filed Under: commenters, doj, gag order, niketh velamoor, reason, subpoena
Companies: reason