DOJ Leak Investigation Targeted Rep. Adam Schiff And His Family Members

from the how-do-you-like-those-expanded-powers-now,-Adam? dept

Former president Trump made plenty of noise about the Deep State being out to get him. But he apparently didn't see anything wrong with sending the Deep State after his enemies.

One of his main enemies was the press -- something he pointed out frequently when he still had viable social media accounts. Everyone who published anything that didn't glorify him and his actions deserved nothing more than disdain. They also, apparently, deserved DOJ investigations. The Trump White House was notoriously leaky and Trump allowed successive AGs to attempt to obtain journalists' communication records in hopes of discovering the source of multiple leaks.

One of his other nemeses was the (so-called) "Democrat" Party. Members of the opposition were also apparently targets of DOJ leak investigations. Somewhat ironically, one target was a strong supporter of unchecked surveillance and FBI abuse of NSA collections. Adam Schiff -- who inserted a loophole to allow the FBI to continue its backdoor searches of NSA collections while renewing Patriot Act powers -- was apparently singled out for the Deep State experience, according to this article by the New York Times.

As the Justice Department investigated who was behind leaks of classified information early in the Trump administration, it took a highly unusual step: Prosecutors subpoenaed Apple for data from the accounts of at least two Democrats on the House Intelligence Committee, aides and family members. One was a minor.

All told, the records of at least a dozen people tied to the committee were seized in 2017 and early 2018, including those of Representative Adam B. Schiff of California, then the panel’s top Democrat and now its chairman, according to committee officials and two other people briefed on the inquiry.

This investigation centered on leaks surrounding the investigation of Trump's ties to Russia and that country's interference in the 2016 election. It began under Jeff Sessions but apparently hit a dead end. Investigators discussed shutting this investigation down, but it was revived by Trump's new DOJ lap dog, Bill Barr, when he succeeded Sessions.

Apple was hit with a gag order that prevented it from notifying Schiff and other targets about the DOJ's interest in their records. That order finally expired in 2021, nearly four years after it was issued.

Adam Schiff isn't too happy about this particular use of the DOJ's power.

Mr. Schiff called the subpoenas for data on committee members and staff another example of Mr. Trump using the Justice Department as a “cudgel against his political opponents and members of the media.”

We'll see if Schiff being on the receiving end of these powers will force him to rethink his position supporting the DOJ's use of this "cudgel" against everyday Americans who aren't on his team or work for media outlets that routinely criticize him.

And he's yet another person asking for the Inspector General to investigate the DOJ's willingness to violate trust and Constitutional amendments when conducting leak investigations. It will likely be months, if not years, before we see the end result of any investigations, but the growing chorus of voices demanding a closer look by the DOJ's oversight should make it more difficult to ignore.

The DOJ needs to answer for the abuses it has perpetrated in service to presidential administrations more interested in sealing leaks than respecting rights. And it needs to take solid, substantial steps to prevent this unfortunate history from repeating in the future, no matter who's running the country.

Filed Under: adam schiff, doj, donald trump, fbi, leaks, surveillance, vendetta, william barr
Companies: apple

DOJ Still Demanding Identity Of Twitter Users Because Someone They Shouldn't Have Arrested Tweeted A Smiley Emoji

from the this-case-remains-fucked-up dept

Last month, I had two blog posts about a particularly insane lawsuit being pushed by the Justice Department against a computer security researcher, Justin Shafer. As we explained, the arrest and prosecution of Shafer appeared to be the result of a truly ridiculous vendetta against Shafer by the FBI because Shafer got angry over a previous (and totally misguided) decision to raid his home, after he properly disclosed security problems involving some dental practice software. It seems clear that Shafer never should have been arrested (and never should have had the FBI raid his house three times over just a few months). Of course, what first brought the case to my attention was an even more ridiculous part of the story, in which the DOJ had sent a subpoena to Twitter demanding basically all info on five Twitter users -- even though two of them don't hide their identity -- because Shafer tweeted a smiley emoji at them.

That story is even more insane than it sounds, but I'm not going to repeat the details here -- I'll just repeat: the case involved the DOJ demanding the identity (and more) of five Twitter users because someone else (who they're railroading over bogus charges) sent a smiley emoji to them on Twitter where they were discussing a different lawsuit altogether.

We now have two updates on that story: (1) Shafer is appealing the fact that he's still in jail, months later and (2) the DOJ has refused to withdraw the emoji subpoena. Yes. You read that right. The DOJ is doubling down, demanding the identity (and more) of Twitter users because someone they never should have arrested, sent a smiley emoji to them. We can cover that second point first because there's not much more to say beyond "What the fuck is wrong with the DOJ?" As you may recall, the five Twitter users whose info was sought by the subpoena included @dawg8u ("Mike Honcho"), @abtnatural ("Virgil"), @Popehat (Ken White), @associatesmind (Keith Lee) and @PogoWasRight (Dissent Doe). Ken White and Keith Lee are both known (and each has blogged about the situation). The rest are at least partially pseudonymous. Dissent Doe, for one, has strong reasons for retaining anonymity, given her focus on data breaches and privacy issues. She revealed the DOJ's stunning decision to keep going over the weekend, noting that she now needs to fight the subpoena in court.

Dissent Doe explained to me later that her lawyers have tried, repeatedly, to contact the DOJ about this ridiculous subpoena, and the DOJ has ignored all attempts to communicate. Twitter has told her that any motion to quash the subpoena needs to be filed this week. She also notes, appropriately, that she's "really really ticked off" about all of this. We all should be.

And, just to be clear, there is no way the subpoena is even remotely Constitutional. Not even armchair lawyers could possibly think so. Over and over again, courts have said that anonymity is protected under the First Amendment, and you need to have very strong reasons to pierce the anonymity. The key case here is McIntyre v. Ohio Elections Commission, but plenty of others have weighed in since then. As we pointed out, the recent Awtry v. Glassdoor case nicely summarizes the history of cases protecting anonymity under the First Amendment:

The Supreme Court has recognized that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995). Indeed, “[t]he right to speak anonymously was of fundamental importance to the establishment of our Constitution.” Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088, 1092 (W.D. Wash. 2001) (citing McIntyre, 514 U.S. at 341-42). In particular, “Justice Black . . . reminded us that even the arguments favoring the ratification of the Constitution advanced in the Federalist Papers were published under fictitious names.” McIntyre, 514 U.S. at 342 (citing Talley v. California, 362 U.S. 60, 64 (1960)). So too were the responses of the anti-federalists, which were published by authors who used such fictitious names as “Centinel,” “Brutus” and “The Federal Farmer.” In re Anonymous Online Speakers, 661 F.3d 1168, 1172-73 (9th Cir. 2011).

Further, it is well-established that anonymous speech on the Internet, like other types of anonymous speech, enjoys First Amendment protection. In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011)(“online speech stands on the same footing as other speech—there is `no basis for qualifying the level of First Amendment scrutiny that should be applied’ to online speech”) (quoting Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997)). As the Ninth Circuit has explained, “the ability to speak anonymously on the Internet promotes the robust exchange of ideas and allows individuals to express themselves freely without `fear of economic or official retaliation . . . [or] concern about social ostracism.'” Id.(quoting McIntyre, 514 U.S. at 341-42).

First Amendment protection of anonymous speech “is not unlimited, however, and the degree of scrutiny varies depending on the circumstances and the type of speech at issue.” Id. Political speech is considered to be “core” speech and is afforded the highest level of First Amendment protection. McIntyre, 514 U.S. at 346. Online messages such as the ones at issue here are also entitled to some level of First Amendment protection, even if the hurdle for overcoming that protection is less stringent than it is for political speech. See In re Anonymous Online Speakers, 661 F.3d 1168 at 1177; see also Highfields Capital Mgmt., L.P. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2005) (finding that identity of individual who anonymously posted derogatory comments about a company on an online message board was protected from disclosure under the First Amendment); Art of Living Foundation v. Does 1-10, No. 10-cv-5022 LHK, 2011 WL 5444622, at *5 (N.D. Cal. Nov. 9, 2011) (finding the standard articulated in Highfields applied to anonymously posted online commentary criticizing the plaintiff’s organization).

Given that tons of people are pointing this out publicly, what possible reason could the DOJ have for continuing to push Twitter to cough up this info other than to just be assholes?

As for the second update: Shafer has appealed the decision of a magistrate just revoking his pretrial release. The filing, by lawyers Tor Ekeland and Frederic Jennings, is... quite a read (and even cites my articles). It certainly doesn't hold back:

The government accuses Justin Mark Shafer of putting an FBI agent and his wife in substantial emotional distress and publishing restricted information about that FBI agent with the intent to incite violence against him. But nowhere in the record, or in the discovery in this case, is there any true threat of violence against anyone. There is no explicit language articulating any kind of threat. The “restricted” information in question was a prior home address for the FBI agent, publicly available on the internet. This entire case is built on innuendo and speculation that withstands neither constitutional nor statutory scrutiny. It is a chilling example of federal law enforcement overreach, and has serious ramifications for constitutional free speech and due process in relation to the internet and computer law. If the government’s accusations in this case are a crime, then millions of social media using Americans are subject to the prosecutorial whim of the Department of Justice.

The factual bases of the government’s bare bones indictment are a handful of public tweets; a Facebook friend request and message sent to a public Facebook account; the following of a public Twitter account;1 and two emails to an FBI Agent – one with a 😊 emoji and another inquiring about the status of a report of a patient privacy violation. The Defendant made no attempt to mask his identity, and the FBI never contacted the Defendant to express any concern or to ask him to stop his communications. Instead they arrested him. And any claim that he engaged in a sustained course of conduct with a continuity of purpose to cyberstalk or threaten are ludicrous when compared to facts embodied in the case law regarding these statutes.

These accusations led to a pretrial release order so broad it functioned as a prior restraint on Mr. Shafer’s constitutional right to speak about the accusations made against him. When he sought to do so – through a post on his work-related blog – the magistrate judge revoked release, broadly interpreting the release condition terms and finding a violation of those conditions.

An innocent man—who the government has not charged, and cannot charge, with any violent crime, nor with any history of violent crime— is now in jail on the basis of protected speech.

I recommend people read the entire document, as it goes into great detail (even beyond my original posts) about the vindictive nature of the FBI's vendetta against Shafer -- not for doing anything wrong, mind you -- but for being upset that the FBI raided his house and took all his electronics twice for completely bogus reasons. And it's not just Shafer, but Shafers three kids who are now traumatized over the mutliple FBI raids, in which agents pointed weapons at the children, or denied their parents the ability to get the children out of their rooms for extended periods of time.

The children now suffer currently from trauma and substantial emotional distress as a result of the repeated armed FBI raids. The Shafers’ three-year old is now unable to sleep alone in her room. Their (now) six-year old is struggling and withdrawn in school, where he previously excelled. Their ten-year old is now afraid to be near open shades, for fear of being surveilled.... Their father has not come home since April 18, 2017, because he is in jail awaiting trial.

As for why Shafer has been in jail all this time? Apparently it's because he wrote a blog post about the case. You can read that blog post here. I wouldn't necessarily say that the blog post was a good idea, because he's clearly venting his anger about the arrest and the treatment by the FBI and Special Agent Nathan Hopp in particular. But it hardly meets the criteria of threatening Hopp or "contacting" him via social media. And yet, since Shafer was barred from either of those things as condition for pretrial release, he was brought back in and has been in jail ever since. That raises a whole new set of First Amendment questions. Shafer is in jail for blogging.

During the period of Mr. Shafer’s pretrial release, he committed no crimes. He used no illegal or prohibited substances. He neither fled nor attempted to flee. He did nothing that posed a threat to the safety of any person or the community. He simply wrote a blog post comprised of constitutionally protected speech criticizing his prosecution. (See Ex. C, April 14, 2017 Blog Post) For this he has been taken away from his wife and children.

Shortly after the blog post was published, Mr. Shafer received a notice of potential violation of his pretrial conditions of release.

On April 18, 2017, a revocation hearing was held before Magistrate Judge Toliver. The government referenced vague concerns regarding flight risk, and claimed that the blog post Mr. Shafer had written was evidence of danger to the community or violation of the no-contact order between Mr. Shafer and SA Hopp. The government argued at the revocation hearing that merely “criticizing” SA Hopp in the “blog site” [sic] was indirect contact. (Tr. 5:8-6:10 (Apr. 18, 2017).) At the close of the revocation hearing, Magistrate Judge Toliver revoked Mr. Shafer’s pretrial release order. He has been detained since.

More specifically, Shafer's lawyers point out:

The original terms of his supervised release violated his free speech rights under the First Amendment. Imprisoning him pre-trial based on his speech is unconstitutional. This current, unconstitutional incarceration before an adjudication by a jury of his peers hampers Mr. Shafer’s ability to put on an effective defense, as he is not free to diligently prepare for his defense with his attorneys due to constant monitoring and harassment in jail. This violates his Fifth Amendment Due Process rights and his Sixth Amendment right to mount an effective defense. Moreover, none of Congress’s narrowly prescribed exceptions to an innocent defendant's presumption of liberty apply here. Mr. Shafer should be released pre-trial under appropriate conditions because his current incarceration violates the Constitution and federal law.

Everything about this case is crazy. We've certainly seen overreach by the DOJ in the past, but this case seems like a pretty blatant example not just of overreach, and not just of the DOJ doing whatever the fuck it wants, but of it doubling down to violate the rights of people just because it doesn't like being called out about it.

Filed Under: anonymity, cfaa, disclosure, dissent doe, doj, fbi, first amendment, identity, justin shafer, keith lee, ken white, nathan hopp, popehat, subpoena, vendetta
Companies: twitter

Secret Service Agents Dug Through Personal Info To Discredit Legislator Investigating Agency Wrongdoing

from the Secret(s)-Service dept

They get to wear nice suits, wield guns and hang around the President. They're entrusted with protecting perhaps the most important person in the world. The US Secret Service should only be staffed with the best the nation has to offer. Instead, its recent protective efforts can be generously described as "almost adequate" and it's apparently staffed with an assortment of vindictive children who can't stand the thought of having their shortcomings questioned.

Rep. Jason Chaffetz heads up the House Oversight Committee, which is tasked with investigating allegations that Secret Service agents had spent several hours drinking before (literally) crashing a "suspicious package" party being thrown in their absence on a street near the White House. Almost as soon as the hearings began, Secret Service agents began looking for some way to tear Chaffetz down.

Employees accessed Chaffetz's 2003 application for a Secret Service job starting 18 minutes after the start of a congressional hearing in March about the latest scandal involving drunken behavior by senior agents. Some forwarded the information to others. At least 45 employees viewed the file.

If this internal sharing of personal info were the extent of the wrongdoing, it would still be illegal. The US Privacy Act forbids the disclosure of these records, absent the written permission of the record's subject. Obviously, Chaffetz was never approached by the Secret Service to get his OK for using his job application against him. But this isn't the end of the agency's misconduct.

One week later, Assistant Director Ed Lowery suggested leaking embarrassing information about Chaffetz in retaliation for aggressive investigations by the House Oversight and Government Reform Committee into a series of agency missteps and scandals, the report said. Days later, on April 2, the information about Chaffetz unsuccessfully applying for a job at the Secret Service was published by The Daily Beast, an Internet publication.

"Some information that he might find embarrassing needs to get out. Just to be fair," Lowery wrote March 31 in an email to fellow Assistant Director Faron Paramore.

"Just to be fair." Let's take a look at that statement. Lowery's employees embarrassed themselves, both in terms of protecting the White House and showing up for work sober. And yet, the "fair" thing to do was to discredit a politician actually performing his job: the oversight of government agencies.

Lowery says he never ordered anyone to release any information the agency had on Chaffetz. (He just heavily suggested it...) He told the Inspector General that saying the "embarrassing" information "need[ed] to get out" was only a reflection of his anger and frustration. It's not as though anger hasn't been known to push people towards regrettable actions. Obviously, Lowery regrets this now that he's been caught, but claiming "the anger made me do it" doesn't excuse his support of illegal activity being performed by his agency.

DHS head Jeh Johnson officially apologized to Rep. Chaffetz, following it with this consolation prize:

"I am confident that U.S. Secret Service Director Joe Clancy will take appropriate action to hold accountable those who violated any laws or the policies of this department," Johnson said.

This may be true. Clancy was called out of retirement to take over the agency after the previous Secret Service head was booted following the White House security breaches. But it's still the sort of "promise" no one should accept at face value. The government is routinely terrible at holding its own employees accountable for their actions, and -- recent high-profile disgraces aside -- the Secret Service is no exception.

The attempted use of personal information by agency employees to discredit someone engaged in investigating their wrongdoing is a gross abuse of power. Many government agencies have access to a wealth of personal information, especially for those who have been entrusted with security clearances or have applied for certain federal positions. Just think of what one could do with access to even greater amounts of personal information.

Oh but this would never happen with an #NSA database, don't be ridiculous. http://t.co/UDwVOnvQXq

— Jameel Jaffer (@JameelJaffer) October 1, 2015

Oh but this would never happen with an #NSA database, don't be ridiculous.

Very little stands in the way of agencies abusing their access and power. This just happens to be one of the times when someone got caught.

Filed Under: ed lowery, embarrassment, foia, house oversight, jason chaffetz, jeh johnson, joe clancy, secret service, us privacy act, vendetta

Sheriff Determined To Find Some Reason To Arrest Parents Of Girls Who Are Accused Of Bullying Girl Into Suicide

from the that's-not-the-way-'justice'-works dept

We recently covered the arrest of two students for their connection to a bullied girl's suicide. I noted at the time that, while certainly not perfect, at least the two were charged with violating laws already on the books, rather than a newly-crafted (and, most likely, badly written) cyberbullying law.

Whatever sense of relief I may have had then has been completely wiped away by Sheriff Grady Judd's continuing comments. If there's going to be a rational resolution to this, Grady can't be involved. He's swiftly turning this into a crusade, which is exactly the wrong thing to do.

The Florida sheriff investigating a girl's suicide allegedly prompted by online bullying said he's considering charging the parents of one of the two girls arrested in the case because they're in "total denial."

Polk Country Sheriff Grady Judd told Fox News Thursday that if evidence indicates the parents of one of the two girls knowingly allowed the girl to post the bullying comments online, they could be charged with contributing to the dependency or delinquency of a child.

It's not enough for Judd to have arrested two students. Now, he's seeking to extract some sort of vengeance for a perceived "lack of remorse" on the part of Guadalupe Shaw, the 14-year-old arrestee, even if it means stretching the law so he can go after her parents. In Judd's mind, they're "in denial."

Shaw's parents have maintained their daughter's account was hacked and that she never made the posts that got her arrested. They also claim to check in on Shaw's account "daily." Whether or not any of those claims are true (or at least should be subject to an investigation before making very public claims) apparently doesn't matter to Judd, who has his own opinion on how Shaw's parents should have handled things after being informed of their daughter's posts.

"You tell me that there's not parents, who instead of taking that device and smashing it into a 1,000 pieces in front of her child, says, 'Oh, her account was hacked?' We see where the problem is."

Judd says "we," but he's likely on his own. This is no longer a case he should be in charge of. He's made it personal and is drifting dangerously close to turning this into a vendetta. And, again, he's doing this solely because in his opinion, Guadalupe Shaw isn't showing enough remorse for her actions.

"We knew that there was total disregard for life, and if she would say those things after she bullied Rebecca and after the parents knew that, we had to act more quickly," Sheriff Grady Judd, from Polk County, Fla., told "Fox and Friends" Wednesday morning.

Judd is pursuing vigilante justice under the color of law. Further comments made elsewhere show he's grasping at straws to make someone pay.

"They don't think there is a problem here, and that is the problem," he said. Judd added that the girl's parents gave her back her Facebook access even after learning about her alleged bullying of Rebecca. "That's terrible," he said. "That's why we moved fast to lock their daughter up."

"I'm aggravated that the parents aren't doing what parents should do," Judd told reporters. "Responsible parents take disciplinary action."

The investigators working for him can't be happy with Judd's crusade. They haven't found anything they can charge the parents with, but it's pretty clear Judd won't be taking no for an answer.

Judd told NBC's Today on Wednesday that investigators so far have found no criminal charges that could be filed against the parents, "but if we can find contributing to the delinquency of a child, we would certainly bring that charge."

Bringing charges against someone for "contributing" to another person's suicide is problematic and it's an area someone like Judd shouldn't be so willing to wander into using only his perceptions of other's attitudes and thoughts to guide him. Grasping about for charges to file against Shaw's parents, who are even further removed from Sedwick's suicide than their daughter, is a dangerously desperate act.

If he manages to follow through and successfully have both Shaw and her parents prosecuted, he won't set any legal precedents, but he will set a low bar for future arrests. With Judd around, no one in his county will need a new cyberbullying law to abuse because the sheriff is perfectly capable of abusing the laws he already has.

Filed Under: blame, cyberbullying, grady judd, guadalupe shaw, suicide, vendetta