FCC Wants Delay In Net Neutrality Trial Due To Government Shutdown, But Isn't Likely To Get It

from the good-luck-with-that dept

The FCC is requesting a delay in the opening arguments in the looming lawsuit over the agency's repeal of net neutrality rules, citing the government shutdown as justification. Oral arguments are slated to begin February 1 in the US Court of Appeals for the District of Columbia Circuit, beginning what should be a fairly insightful battle over the Ajit Pai FCC's historically unpopular move, and some of the dubious behavior it engaged in to try and downplay public opposition.

The court noted this week on its website that the trial is likely to proceed regardless of the government shutdown. The FCC quickly balked, filing a motion (pdf) requesting a delay in the trial. In the filing, the FCC cites guidance from the Department of Justice in requesting a delay out of what it suggests would be a wise "abundance of caution" as it attempts to prepare for the legal battle:

"The Commission recognizes that the Court has indicated that arguments in February will proceed as scheduled," the FCC said in its filing. "However, due to the recent lapse in funding for the FCC and the relevant component of the Department of Justice, the Commission believes that, in an abundance of caution, it should move for an extension to ensure that attorneys may fully prepare for argument."

Groups like Incompas, whose members have been fighting to restore the rules, issued their own motion (pdf) arguing that given the potential harms from the repeal, expediency is warranted:

"Due to the FCC's misguided and unlawful repeal of the network neutrality rules, consumers are at risk of substantial harm from Internet Service Providers ('ISPs'), which may now interfere with access to lawful Internet content without the restraint of the net neutrality rules. The repeal of the rules also threatens edge providers, as they are facing the risk of blocking, throttling, and other practices by ISPs, which may have services competing with edge provider services."

Both Incompas and consumer advocates like Public Knowledge's Harold Feld note that given that the DC Circuit has been denying numerous other deferments due to the shutdown, the FCC isn't likely to get what it's looking for:

Again, this legal fight is going to be very interesting to watch, as it's the first time the FCC will have to defend the various bizarre behaviors it engaged in during the repeal, including making up a DDOS attack (apparently to concoct an alternative explanation for the outrage-driven FCC website outage), blocking FOIA and law enforcement inquiries into those bogus comments the FCC refused to do anything about, or why its flimsy justifications for the repeal were pushed in perfect synchronicity with big telecom lobbyists.

If you were staring down the barrel of that particular gun, you'd probably want a delay too. Should the FCC lose, the agency's 2015 rules could be restored. If it wins, the FCC and its friends in the telecom sector need to find a way to prevent some future FCC or Congress from simply passing new rules, which is why they've been pushing bogus net neutrality laws even Congress hasn't been dumb enough to buy into quite yet. Get your popcorn ready.

Filed Under: court, dc circuit, doj, fcc, net neutrality, trial

Judge Responds To Ross Ulbricht's Request For A New Trial: Ha Ha Ha Ha, No.

from the nice-try,-though dept

This is not a huge surprise, but the judge who oversaw Ross Ulbricht's trial for being the guy behind the original Silk Road wasted very little time in flat out rejecting his request for a new trial. To say that Judge Katherine Forrest is skeptical of his arguments would be an understatement. First, the straight up denial:

There is no basis in fact or law to grant the motion and it is DENIED.

And the basic idea behind the reasoning: overwhelming evidence that Ulbricht is guilty, according to the judge:

The evidence of Ulbricht’s guilt was, in all respects, overwhelming. It went unrebutted. This motion for a new trial urges that Ulbricht was prejudiced by that which he could not know in time, or at all. But the motion does not address how any additional evidence, investigation, or time would have raised even a remote (let alone reasonable) probability that the outcome of the trial would be any different.

It then proceeds to lay out the rather long list of evidence pointing a finger directly at Ulbricht to demonstrate just how little Ulbricht's side has going for his argument.

As for the three arguments made for a new trial, Judge Forrest finds none of them convincing. This included the fact that the Justice Department dumped a bunch of things on Team Ulbricht less than two weeks before the trial, including the investigation into two federal officers who were stealing money themselves from Ulbricht -- information that was revealed to Ulbricht's lawyers, but which they were barred from using at the trial, as the investigation was still ongoing at the time.

Despite the attention given to the Rogue Agents issue in defendant’s brief, this Court remains unclear (as it always was) as to how any information relating to that investigation is material or exculpatory vis-a-vis Ulbricht. Either the defense assumes the answer is so obvious that it need not explain, or its omission is purposeful. For purposes of the instant motion, this Court assumes that defendant believes he was deprived of information which would have revealed that (1) the Rogue Agents’ conduct may have tainted any evidence relating to the website (since they assumed identities on the site), (2) the Rogue Agents may provide a link to someone (including themselves) who may have taken over the DPR account and framed Ulbricht, and/or (3) the Rogue Agents may know the identity of the real DPR. There is no basis in the record—including in any of what defendant has cited regarding the Rogue Agents—which supports any one of these theories. These theories are based on no more than speculation and premised on erroneous assumptions as to the scope of discovery obligations and the meaning of exculpatory evidence.

To start, there is no basis for this Court to believe that any undisclosed materials relating to the Rogue Agents would have been remotely useful, let alone exculpatory, vis-à-vis Ulbricht. The Rogue Agents did not participate in the USAO-SDNY’s investigation of Silk Road that resulted in defendant’s arrest and indictment, and none of the evidence at defendant’s trial came from the USAOBaltimore investigation in which the Rogue Agents participated. That the Rogue Agents may have exceeded the scope of their authority in the USAO-Baltimore investigation does not, in any way, suggest that Ulbricht was not the Dread Pirate Roberts. As this Court explained in an earlier (sealed) ruling on this topic, the investigation of SA Force is, if anything, inculpatory as it suggests that Ulbricht, as DPR, was seeking to pay law enforcement for inside information to protect his illegal enterprise.

Moreover, even if defendant could point to a favorable piece of evidence from the investigation of the Rogue Agents, defendant has not constructed any argument that had he had earlier disclosure, the result of the trial may have been different. There is no reasonable probability of a different outcome here: the circumstances of defendant’s arrest, and the evidence found in his own possession at the time of the arrest, are in and of themselves overwhelming evidence of his guilt.

Ulbricht's other arguments fail, meaning it's likely that his lawyers will now move on to the appeals court to see if it has any more luck there, but it seems like a massive long shot.

Filed Under: katherine forrest, ross ulbricht, silk road, trial
Companies: silk road

If Snowden Returned To US For Trial, All Whistleblower Evidence Would Likely Be Inadmissible

from the pernicious-law dept

There seems to be a new talking point from government officials since a federal judge ruled NSA surveillance is likely unconstitutional last week: if Edward Snowden thinks he's a whistleblower, he should come back and stand trial.

National Security Advisor Susan Rice said on 60 Minutes Sunday, “We believe he should come back, he should be sent back, and he should have his day in court.” Former CIA deputy director Mike Morell made similar statements this weekend, as did Rep. Mike Rogers (while also making outright false claims about Snowden at the same time). Even NSA reform advocate Sen. Mark Udall said, "He ought to stand on his own two feet. He ought to make his case. Come home, make the case that somehow there was a higher purpose here.”

These statements belie a fundamental misunderstanding about how Espionage Act prosecutions work.

If Edward Snowden comes back to the US to face trial, it is likely he will not be able to tell a jury why he did what he did, and what happened because of his actions. Contrary to common sense, there is no public interest exception to the Espionage Act. Prosecutors in recent cases have convinced courts that the intent of the leaker, the value of leaks to the public, and the lack of harm caused by the leaks are irrelevant—and are therefore inadmissible in court.

This is why rarely, if ever, whistleblowers go to trial when they’re charged under the Espionage Act, and why the law—a relic from World War I—is so pernicious. John Kiriakou, the former CIA officer who was the first to go on-the-record with the media about waterboarding, pled guilty in his Espionage Act case last year partially because a judge ruled he couldn’t tell the jury about his lack of intent to harm the United States.

In the ongoing leak trial of former State Department official Stephen Kim, the judge recently ruled that the prosecution “need not show that the information he allegedly leaked could damage U.S. national security or benefit a foreign power, even potentially.” (emphasis added)

The same scenario just played out in the Chelsea Manning trial this summer. Manning's defense wanted to argue she intended to inform the public, that the military was afflicted with a deep and unnecessary addiction to overclassification, and that the government’s own internal assessments showed she caused no real damage to U.S. interests. All this information was ruled inadmissible until sentencing. Manning was sentenced to thirty-five years in jail—longer than most actual spies under the Espionage Act.

If the same holds true in Snowden’s case, the administration will be able to exclude almost all knowledge beneficial to his case from a jury until he’s already been found guilty of felonies that will have him facing decades, if not life, in jail.

This would mean Snowden could not be able to tell the jury that his intent was to inform the American public about the government’s secret interpretations of laws used to justify spying on millions of citizens without their knowledge, as opposed to selling secrets to hostile countries for their advantage.

If the prosecution had their way, Snowden would also not be able to explain to a jury that his leaks sparked more than two dozen bills in Congress, and half a dozen lawsuits, all designed to rein in unconstitutional surveillance. He wouldn’t be allowed to explain how his leaks caught an official lying to Congress, that they’ve led to a White House review panel recommending forty-six reforms for US intelligence agencies, or that they've led to an unprecedented review of government secrecy. He wouldn't be able to talk about the sea change in the public's perception of privacy since his leaks, or the fact that a majority of the public considers him a whistleblower.

He might not even be able to bring up the fact that a US judge ruled that surveillance he exposed was ruled to likely be unconstitutional.

The jury would also not be able to hear how there’s been no demonstrable harm to the United States since much of this information has been published. And if the prosecution was able to prove there was some harm to the US, Snowden wouldn’t be able to explain that the enormous public benefits of these disclosures far outweighed any perceived harm.

Every American should be outraged that leakers and whistleblowers are being prosecuted under an espionage statute without ever having to show they meant to harm the U.S. or that any harm actually occurred. Given there are two dozen bills calling for the reform of the NSA in the wake of Snowden's revelations, there should also be reform of the Espionage Act, so it cannot be used by the government as a sword to protect itself from accountability.

Cross posted with permission, from Freedom of the Press Foundation

Filed Under: ed snowden, espionage act, evidence, trial, whistleblowing

Government Argues Bradley Manning Was An Anarchist, As Case Closes

from the the-lies-your-government-spreads dept

We haven't been covering the day to day of the Bradley Manning trial, though it has been interesting (and frustrating) to follow. However, in its closing argument, it appears that the government is trying to smear Bradley Manning and his whistleblowing every possible way:

After more than four and a half hours of proceedings, the government wrapped up its closing argument in the trial of Pfc. Bradley Manning, the soldier being prosecuted for disclosing information to WikiLeaks. Prosecutors called him an “anarchist,” a “hacker,” and a “traitor” before the argument was over.

Really? All three claims are flat out ridiculous. From the very beginning Manning was quite clear in his motives, which were about making sure the American public was better informed. The bogus traitor claims have been mentioned before, and seem to have no basis in reality. But the anarchy one is a new one. As Kevin Gosztola explains:

Quoting chat logs between hacker and government informant Adrian Lamo and Manning, Major Ashden Fein said that he expected “worldwide anarchy” would occur after releasing the diplomatic cables and these were not the “words of a humanist but the words of an anarchist.” He also said he was a “hacker” and not a humanist.

Of course, if you read the actual chat logs and put the statement back in context you realize it's not the words of an anarchist at all. That's just some boasting about how releasing these files will have a major impact. But, as he immediately explains in the following statements, his goal is to create change and stop the US government from lying. He notes that releasing these documents "might actually change something" in how the US goes about its business. He's not talking about anarchy, he's talking about actually having a representative government that doesn't lie and deceive all the time.

Of course, the big claim that the government is trying to make is that Manning knowingly "aided the enemy":

For the “aiding the enemy” charge, which if convicted could lead to maximum sentence of life in prison, Fein argued that Manning had deliberately transmitted the “Collateral Murder” video, certain State Department information and military incident reports from Iraq and Afghanistan.

But how is revealing factual information about the US military screwing up and then trying to cover it up "aiding the enemy." It seems like, once again, that's only true if "the enemy" is the American public and you have information you want to hide from them. In fact, the government appears to argue that any release of information to the public can be seen as "aiding the enemy"

“The public included the enemy and he knew that as an intelligence analyst,” the government stated. The government added that this was not public data. It was US government information that Manning was trained to use.

But, under that argument any journalist or any person who publishes anything that might make Al Qaeda happy is "aiding the enemy." That's crazy.

Manning's defense will give its closing argument on Friday, and then... we wait for the judge to decide.

Filed Under: anarchist, bradley manning, hacker, trial
Companies: wikileaks

DOJ Tries, But Fails, To Delay ACLU Lawsuit Over NSA Spying

from the case-moving-forward dept

The Justice Department desperately tried to delay the ACLU's recently filed lawsuit over the NSA's surveillance efforts. The DOJ claimed that, since the intelligence agencies have been working to declassify info on those programs, any lawsuit should wait until those decisions are made. Thankfully, however, Judge William Pauley recognized that justice delayed is justice denied and rejected that argument. The case will move forward with motions filed by the end of August and the case to begin by November.

Filed Under: delay, doj, nsa, nsa surveillance, trial
Companies: aclu

Adrian Lamo On The Stand: 'Did Manning Ever Say He Wanted To Help The Enemy?' 'Not In Those Words, No.'

from the 20-years-for-attempting-to-upset-the-status-quo dept

Bradley Manning is currently on trial, charged with "aiding an enemy" (including "classified" enemies) for turning over sensitive documents to Wikileaks. As Mike pointed out earlier, this latter charge doesn't add up. Manning never handed over anything directly to any enemies of America, classified or otherwise, and any documents these unnamed enemies had in their possession were already publicly available.

Adrian Lamo, the ex-hacker who turned Manning over to the feds (or rather, the Dept. of Defense with some assistance from the FBI), was on the stand on June 4th. Under cross examination by David Coombs of Manning's defense team, Lamo is unable to say Manning intended to "aid the enemy" by releasing these documents. In fact, Coombs exchange with Lamo depicts Manning as someone with idealistic aims who hoped that bringing governmental and military wrongdoing into the light would help change both entities for the better.

Q. At one point you asked him what his end game was, correct?
A. Yes, I did.
Q. And he told you, hopefully worldwide discussions, debates and reforms?
A. Yes, he did.
Q. And he said he wanted people to see the truth?
A. Correct.
Q. He said without information you can't make informed decision as a whole?
A. Yes, he did.
Q. And he told you to, he was hoping that people would actually change if they saw the information?
A. Correct.

At one point, the discussion turned to the possibility of aiding US enemies, but Manning still refused to view the information he had acquired as anything other than a contribution to public knowledge.

Q. And at one point you asked him why he didn't just sell the information to Russia or China?
A. Correct.
Q. And he told you that the information belonged in the public domain?
A. Yes, he did.
Q. He believed that information was in the public domain and should be for the public good?
A. Yes.

And when the questions became more direct, Lamo's answers became correspondingly vague.

Q. At anytime did he say he had no loyalty to America?
A. Not in those words, no.
Q. At anytime did he say the American flag didn't mean anything to him?
A. No.
Q. At anytime did he say he wanted to help the enemy?
A. Not in those words, no.

In what words, then? The transcripts of the chats between Lamo and Manning are public. There's no indication Manning wished to aid the enemy. There was the potential for harm to exposed operatives and sources, but that was greatly mitigated by the delay between delivery and publication of the documents, not to mention Lamo bringing this to the FBI's attention after the initial chat session. But the military has chosen to view the embarrassment and inconvenience caused by the documents' release as "aiding the enemy" -- whatever hurts us makes them stronger.

Filed Under: adrian lamo, bradley manning, enemy of the state, trial
Companies: wikileaks

Crowdfunded Stenographer Denied Press Pass To Cover Transcriptless Bradley Manning Trial

from the can't-have-an-accurate-record-now,-can-we dept

The attempts to limit the press during the Bradley Manning trial have been somewhat ridiculous. The press hasn't been allowed to record anything, even though someone clearly did so surreptitiously. Furthermore, there's been no plan for an official court transcript of the proceedings either. About a month ago, the Freedom of the Press Foundation launched a crowdfunding campaign to try to hire their own professional stenographer to attend the trail to make a transcript. They even had some top press publications, including the Guardian, Forbes and the Verge, apply for an extra press pass for the crowdfunded stenographer. The military refused. But, more ridiculously, they claimed it was a space issue, though that's an issue they could easily fix.

The Army received over 350 media applications for the trial, but only granted 70 to be present in the media room. In an emailed statement, the MDW Media Desk stated: “Your understanding of our space limitations based on building fire codes is greatly appreciated.”

In previous hearings, the Army has opened a public overflow theater with live audio and video streaming of the hearing. Additionally, the Army has sole discretion over which room(s) to designate as media rooms – including how many rooms to make available.

A large group of established news organizations -- including the LA Times, NPR, the New Yorker, Fox News, Newsweek, Bloomberg and NY Magazine -- have all asked the military to open up two additional press passes for stenographers (two so that they can overlap while switching shifts). The judge in the case, on Monday, announced that it would be okay for a stenographer to record a transcript using a stenography machine, which is great... except that without a press pass, they still can't get the stenographer in. Thankfully, for Monday, a Bradley Manning supporter with a pass gave it up to the stenographer, but it's somewhat ridiculous that it had to even come to that.

At this point, it really just seems like the Army is being incredibly petty over this case in its desire to limit the details of coverage.

Filed Under: army, bradley manning, freedom of the press foundation, press pass, stenographer, trial

Judge Will Review If Apple/Samsung Jury Foreman Withheld Pertinent Info

from the probably-not dept

After the jury decision in the Apple/Samsung patent fight in the US came out, lots of people pointed to statements from the foreman of the jury, Vel Hogan, that raised serious questions about Hogan's understanding of the legal issues at play, especially pertaining to prior art. It also suggested possible bias. Still, even with all of that, it's very, very difficult to get a jury ruling thrown out on jury misconduct -- but Samsung has unveiled one bit of info that Judge Lucy Koh has now agreed to review: whether or not Hogan needed to reveal that he had a legal dispute with Seagate, a former Hogan employer, who is also a major strategic partner of Samsung. Koh is also asking Apple's lawyers to reveal if they knew this info, which Samsung's lawyers did not.

At the December 6, 2012 hearing, the Court will consider the questions of whether the jury foreperson concealed information during voir dire, whether any concealed information was material, and whether any concealment constituted misconduct. An assessment of such issues is intertwined with the question of whether and when Apple had a duty to disclose the circumstances and timing of its discovery of information about the foreperson.

While this is an interesting move, and worth watching, I doubt much will come out of it. Hogan did admit that he'd had legal issues in the past with a former employer, but no one delved into who or why.

During voir dire, Hogan did disclose that he had been involved in litigation with a former partner when the judge asked him if he had ever been involved in litigation.

Hogan has noted, in response to Samsung's allegations, that the judge didn't ask for a complete listing of all the lawsuits he had been involved with.

Again, most of this aspect is just a sideshow to the eventual long series of appeals that will come in this case -- and I doubt that the judge will find misconduct here. But just the fact that judge is considering it makes it worth following.

Filed Under: jury misconduct, patents, trial, vel hogan
Companies: apple, samsung

Blagojevich Ordered Not To Live Tweet His Own Trial

from the stay-quiet dept

Former Illinois Gov. Rod Blagojevich hasn't exactly been one to stay quiet since being removed from office and charged with corruption. If anything, he's worked hard to make sure that the limelight remains on him as much as possible, including participating in a variety of publicity stunts. The latest was his announced plan to live tweet his own trial on Twitter, a plan that appears to have been quickly shot down by the judge in the trial, who banned him from tweeting from the courtroom. He is allowed to do what he wants outside of the courtroom, though the judge warned him that anything he says could come back to haunt him in court:

The ex-governor will be allowed to continue speaking with the media and appearing on radio programs -- at his own peril.

Zagel told Blagojevich that his sound bites, quips and "repeated public statements" to the cameras could be used against him if he testifies during the trial.

"I'm quite sure it has been explained by his attorneys," Zagel said.

While we've seen stories about jurors tweeting, this is the first I can remember of a defendant wanting to live tweet his own trial...

Filed Under: rod blagojevich, trial, twitter
Companies: twitter