To Obtain Documents About Facebook Data-Sharing, UK Gov't Seizes And Detains A US Executive Working For A Different Company

from the Parliamentary-street-gang dept

Something strange and disturbing happened in the UK this weekend. That it targeted pariah du jour Facebook doesn't make it any less bizarre or worrisome.

The short story is this: peeved at being blown off repeatedly by Mark Zuckerberg and other Facebook representatives, members of Parliament shook down an American third party for documents possibly related to the Cambridge Analytica scandal. The long story -- broken by Carole Cadwalladr of The Guardian -- fills in the details.

But first a little background: Six4Three, developers of a scuzzy app that scanned profiles for bikini photos, is currently suing Facebook for yanking its API access. The lawsuit has traveled from the federal court system to a California state court, where Six4Three is hoping for a ruling declaring Facebook's actions to be a violation of various state-level competitive business laws.

During the course of this suit -- which was filed in January 2017 -- Six4Three has obtained internal Facebook documents through discovery. These documents may contain info related to Facebook's data-sharing and data-selling practices, which could possibly include its deals with Cambridge Analytica.

Somehow, members of Parliament found out one of Six4Three's lawyers execs was in London. So, this happened:

Damian Collins, the chair of the culture, media and sport select committee, invoked a rare parliamentary mechanism to compel the founder of a US software company, Six4Three, to hand over the documents during a business trip to London. In another exceptional move, parliament sent a serjeant at arms to his hotel with a final warning and a two-hour deadline to comply with its order. When the software firm founder failed to do so, it’s understood he was escorted to parliament. He was told he risked fines and even imprisonment if he didn’t hand over the documents.

Let's break this down: the UK government wants answers from Mark Zuckerberg and Facebook. Since Facebook hasn't been compliant, the UK government feels justified in taking documents obtained through discovery in a US lawsuit from an American lawyer currently suing Facebook… just because he happened to roam into its jurisdiction.

This is insane.

As an added twist, the documents the lawyer was forced to turn over are currently under seal. That means no one in the US other than the litigants and the judge have access to them. At least that was the case until Parliament's bizarre, heavy-handed move.

Facebook has responded with some fluff about Six4Three's creepy app (not really relevant) and a reminder that the documents seized from its opponent's lawyer are, at this point, privileged information. MP Collins has responded with a shrug, reminding Facebook's legal rep that the UK is not California so who cares what a local court has to say about who can see what documents.

It's unlikely the California court will find Six4Three's lawyer in contempt for being pretty much arrested and threatened with indefinite imprisonment if he didn't hand over documents it has ordered sealed. Facebook has asked that no members of Parliament view the documents until it has heard back from the California court. This has been greeted with a different kind of contempt:

If you can't read/see the tweet, it's from MP Ian Lucas and reads:

Facebook said: “The materials obtained by the DCMS committee are subject to a protective order of the San Mateo Superior Court restricting their disclosure. We have asked the DCMS committee to refrain from reviewing them and to return them to counsel or to Facebook.” Too late.

Parliament may now have some of the answers Facebook has refused to provide. But was it worth it? The UK government acted more like an authoritarian dictatorship than a free country with this move. It detained a lawyer who didn't even work for Facebook and threatened him with jail time if he didn't turn over documents a judge in his home country had ordered sealed. The next few days should see some interesting iterations of the "ends justifies the means" pontificating from every Parliament member supportive of this damaging move.

Filed Under: api, california, damian collins, due process, mark zuckerberg, privacy, sealed documents, uk, uk parliament
Companies: facebook, six4three

District Court Judge Orders Last-Minute Sealing Of Documents Related To Stingray Devices And Cell Tower Data Dumps

from the and-then-seals-the-order-itself dept

The government clearly does not want to talk about its surveillance tools: stingray devices, cell phone tower data dumps, pen/trap registers. This opacity begins at the bottom, with law enforcement agencies conveniently quoting manufacturer non-disclosure agreements as a way to deny records requests or route around obtaining warrants.

When it appears records detailing use of these methods may make their way into the public domain, the DOJ itself steps in (via its US Marshals Service) and seizes the documents. Anything the government has as its disposal is used in order to keep these records out of the public eye.

Cyrus Farivar at Ars Technica brings news that the US government is again inserting itself between public records and the public.

Serving as an outgoing United States magistrate judge, Brian Owsley had decided that one of his final judicial acts would be to unseal more than 100 of his own judicial orders involving digital surveillance that he himself had sealed at the government’s request.

But not long after Owsley's move last year, a US district judge vacated Owsley’s order and resealed them all. That order itself was then sealed.

Brian Owsley notes that this behavior is "not normal."

"I sent in various ways to the government, a number of applications and I said I'm going to unseal these unless you tell me why I shouldn't. These were done in waves. The first wave were completed five years previous, past the statute of limitations, and quite likely no longer really significant. That was the first wave. The government did not oppose unsealing of any of them. So I spoke to the court's office and said to upload them to make them available online, and as they were doing that, somehow this district judge found out about it an interjected himself into the process. If the government has said: 'We don't think these things should be unsealed,' that's one thing. But just out of the blue the district judge interjecting himself, that's a little unusual."

This unusual move prompted another. Dow Jones, the owner of the Wall Street Journal, has filed a motion asking the district court to unseal the documents. The applications the government buried at the last minute include all of those items listed above: stingray devices, cell phone tower dumps and pen register requests.

The thing is that none of these documents should still be sealed. As Owsley states, everything affected deals with closed investigations. There's nothing ongoing and anything the government feels might compromise future investigations should be redacted -- which then can at least be challenged in court, if need be.

The filing notes that the burial of Owsley's orders isn't an outlier.

Magistrate Judge Stephen Smith estimates that tens of thousands of sealed electronic surveillance orders issued by federal district courts remain inaccessible to the public and the press—even long after the investigations underlying those orders have terminated.

The government's antipathy towards FOIA requests continues. And it highlights the incredible hypocrisy of its rationale and actions. According to every law enforcement and investigative agency in the US, Smith vs. Maryland grants no expectation of privacy to information handed over to third parties.

No one in the data collection business wants to be held accountable for abuse or forced to operate responsibly in the future. When the simple invocation of "terror," "drugs" or other criminal activity fails to drive off those seeking documents, the government resorts to other means to keep its actions out of the public eye, whether its extensive, unnecessary retractions or more extreme measures, like refusing to unseal documents.

To these entities, our lives are an open book. But if citizens want to take a look at what the government is doing with this information, or how it obtains it, these entities do all they can to ensure the flow of data remains strictly one way.

Filed Under: location data, sealed documents, secrecy, stingray

Document Accidentally Filed Publicly Reveals Google Fighting Back Against Government Snooping

from the national-security-letters dept

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

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

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

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

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

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