In a rare public filing in the secret Foreign Intelligence Surveillance Court (FISC), the Justice Department today urged continued secrecy for a 2011 FISC opinion that found the National Security Agency’s surveillance under the FISA Amendments Act to be unconstitutional. Significantly, the surveillance at issue was carried out under the same controversial legal authority that underlies the NSA’s recently-revealed PRISM program.
EFF filed a suit under the Freedom of Information Act in August 2012, seeking disclosure of the FISC ruling. Sens. Ron Wyden and Mark Udall revealed the existence of the opinion, which found that collection activities under FISA Section 702 “circumvented the spirit of the law” and violated the Fourth Amendment’s prohibition on unreasonable searches and seizures. But, at the time, the Senators were not permitted to discuss the details publicly. Section 702 has taken on new importance this week, as it appears to form the basis for the extensive PRISM surveillance program reported recently in the Guardian and the Washington Post.
The government has seeked to block EFF’s FOIA suit by arguing that only the FISC, itself, can release the opinion. In an effort to remove that roadblock, EFF filed a motion with the FISC on April 22 seeking the surveillance court’s consent to disclosure, should the document be found to be otherwise subject to release under FOIA. In its response filed with the FISC today, the government offers a circular argument, asserting that only the Executive Branch can de-classify the opinion, but that it is somehow prohibited by the FISC rules from doing so.
The government’s argument is guaranteed to make heads spin. DOJ earlier argued that it lacks discretion to release the FISC opinion without the FISC’s consent, but DOJ now argues that if the FISC were to agree with EFF, “the consequence would be that the Government could release the opinion or any portion of it in its discretion.” But FISC material is classified solely because the Executive Branch demands that it be, so release of the opinion has always been a matter of Executive discretion.
Frankly, it’s difficult to understand what DOJ is saying. The Government seems to have a knee-jerk inclination towards secrecy, one that often – as in this case – simply defies logic. The government’s bottom line is this: their rules trump the public’s statutory rights. But it’s not the province of the Executive branch to determine which rights citizens get to assert.
The events of the past week have demonstrated that the public is angry about the NSA’s domestic surveillance program. EFF hoped the public outcry might lead the government to rethink it’s position in this case (and, notably, DOJ has in two other EFF cases). But, for now, the government is digging in its heels and refusing to budge. But a democracy demands more. When the government acts unconstitutionally, the public has a fundamental right to review, understand, and correct that government action. Despite the DOJ’s filing today, EFF intends to keep fighting against the government’s secret surveillance practices.
President Obama is reportedly picking a former hedge fund executive turned senior Bush administration official at the Justice Department by the name James Comey to be his next head of the FBI. Like Chuck Hagel, this largely meaningless nomination in terms of actual policy is being played up as meaningful by the hacks whose job it is to do that sort of thing.
Forget the pundits. Here’s what the nomination means, if anything, by way of remarks Comey made at a press conference in 2004:
Had we tried to make a case against Jose Padilla through our criminal justice system, something that I, as the United States attorney in New York, could not do at that time without jeopardizing intelligence sources, he would very likely have followed his lawyer’s advice and said nothing, which would have been his constitutional right.
He would likely have ended up a free man, with our only hope being to try to follow him 24 hours a day, seven days a week, and hope — pray, really — that we didn’t lose him.
Trials can be so inconvenient, especially when the criminal justice system only affords the state a 93 percent conviction rate. You really don’t want to take any risks when it comes to national security. Indeed, “We could care less about a criminal case when right before us is the need to protect American citizens and to save lives,” Comey told reporters, presumably grabbing his genitals. “We’ll figure out down the road what we do with Jose Padilla.” His remarks mean he will do well at the FBI, that Comey, leading a department where protecting Americans has long served as justification for ignoring their rights.
Padilla ended up being labeled an “enemy combatant” and stashed away in a Naval brig, spending nearly four years in solitary confinement, which in the words of a psychiatrist who examined him led to the “destruction of a human being’s mind.” Despite his years spent being tortured in military custody, however, Padilla was ultimately tried and convicted within the civilian criminal justice system. A final punch to the gut, because this America and we are terrible: the mentally destroyed Padilla’s original conviction of 17 years in prison for expressing an interest in (if not actually engaging in) violent jihad was overturned for being too lenient.I hope you like your humor dark.
The House Judiciary Committee is investigating whether Attorney General Eric Holder lied under oath during his May 15 testimony on the Justice Department’s (DOJ) surveillance of reporters.
The panel is looking at a statement Holder made during a back-and-forth with Rep. Hank Johnson (D-Ga.) about whether the DOJ could prosecute reporters under the Espionage Act of 1917, an aide close to the matter told The Hill.
“In regard to potential prosecution of the press for the disclosure of material — this is not something I’ve ever been involved in, heard of, or would think would be wise policy,” Holder said during the hearing.
However, NBC News reported the following week that Holder personally approved a search warrant that labeled Fox News chief Washington correspondent James Rosen a co-conspirator in a national security leaks case.
The panel is investigating whether NBC’s report contradicts Holder’s claim that he had not looked into or been involved with a possible prosecution of the press in a leaks case.
The May 15 Judiciary hearing was held after The Associated Press revealed Justice had secretly subpoenaed its phone records in a separate leaks investigation.
Justice did not return a request for comment, but Johnson on Tuesday defended Holder, arguing his statement was specific to Johnson’s line of questioning about the Espionage Act and not meant to pertain to other investigations.
“The attorney general’s statement that no journalists have been prosecuted under the Espionage Act during his tenure is accurate,” he told The Hill.
Johnson said he raised the Espionage Act issue because he believes the law could be misused to target reporters due to the way it was written. He argued it should be changed.
“Congress is responsible for protecting the press while giving law enforcement the tools to prosecute officials who leak classified information,” Johnson said. “I support considering amendments to the Espionage Act and passing the Free Flow of Information Act to refine this balance.”
Rep. John Conyers Jr. (D-Mich.), the ranking member of the Judiciary Committee, told The Hill that Holder was “forthright” with the panel and that there was “no need to turn a policy disagreement into allegations of misconduct.”
But Rep. James Sensenbrenner Jr. (Wis.), the second-ranking Judiciary Committee Republican, told The Hill that Holder should resign.
He accused the attorney general of misleading the panel during the investigation of the “Fast and Furious” gun-walking operation, and again when he claimed to not know about the AP probe.
“As we saw in Fast and Furious and are seeing now, Attorney General Holder refuses to hold himself accountable,” Sensenbrenner said. “He misled the Judiciary Committee under oath when he said he had not heard about Fast and Furious and he misled us again when he claimed to be unaware of the AP scandal. The head of DOJ should be someone the American people can trust. Attorney General Holder should resign.”
Justice’s probe into national security leaks is threatening to become the biggest controversy of Holder’s career.
President Obama last week said he was “troubled” by reports about the DOJ’s surveillance of reporters, and argued that journalists “should not be at legal risk for doing their jobs.”
He ordered Holder to review his department’s guidelines governing investigations that involve reporters. The DOJ will present its findings to the president on July 12.
A report in The Daily Beast over the weekend suggested Holder felt a sense of personal remorse over the aggressive tactics used in targeting the Fox News reporter. Citing aides close to Holder, the article said the Attorney General knew Justice would be besieged by questions about the two probes as he read a Washington Post story about the investigation of Rosen.
The DOJ seized Rosen’s personal emails and used other surveillance methods to investigate whether he was complicit in a leak of classified information. It also examined Rosen’s phone records and tracked his visits to the State Department using security-badge data during the 2009 probe.
Justice filed legal papers saying Rosen may have acted as “an aider, abettor and/or co-conspirator” by getting materials from a government official also under investigation.
The investigation was primarily focused on rooting out Rosen’s alleged source, a State Department worker who is facing federal charges for disclosing classified national security information and could see a trial as soon as next year. The DOJ has said it never intended to prosecute Rosen.
Some Republican senators have said Holder should not be in charge of reviewing his own department.
Speaking on CBS’s “Face the Nation” on Sunday, Sen. Tom Coburn (R-Okla.) called Holder’s review a “conflict of interest.” Sen. Lindsey Graham (R-S.C.) said a special counsel or some other independent body should be appointed to conduct the review.
The DOJ has also faced criticism over its seizure of phone records belonging to the AP. The news wire was never a target of that investigation.
The House voted to find Holder in contempt over his refusal to turn over documents to lawmakers on “Fast and Furious,” an operation in which the Bureau of Alcohol, Tobacco, Firearms and Explosives purposely allowed guns to be illegally purchased in the United States and Mexico in the hope they could be tracked.
In case you had any doubt that federal prosecutors favor corporations over individuals, check out Mythili Raman’s testimony before a House hearing this week.
Raman is the acting chief of the Criminal Division at the Department of Justice.
She appeared before the Oversight and Investigations Subcommittee of the House Financial Services Committee.
The title of the hearing — “Who Is Too Big to Fail: Are Large Financial Institutions Immune from Federal Prosecution?”
In a nutshell, the answer is — Yes they are immune from federal prosecution.
But it’s not just them.
It’s the vast majority of major corporate criminals, which now are granted deferred and non prosecution agreements when twenty years ago they were forced to plead guilty.
This sea change in corporate crime practice was ushered in by then Deputy Attorney General Holder in 1999 when he drafted the Principles of Federal Prosecution of Business Organizations. (Holder has been through the revolving door since — over to Covington & Burling to defend the corporations he’s now charged with prosecuting, then back to the Justice Department as Attorney General under President Obama. And no doubt, soon back to Covington.)
Under the subsequent rewrites of the Holder memo, federal prosecutors must now take into consideration the collateral consequences of a criminal prosecution on a major corporation including “whether there is disproportionate harm to shareholders, pension holders, employees, and others not proven personally culpable, as well as impact on the public arising from the prosecution.”
And this, along with the the eight other factors that prosecutors must take into account before prosecuting a corporation tilts the balance away from prosecution and toward deferred and non prosecution agreements.
Raman made it a point to emphasize twice during her testimony that individuals are not given the same consideration.
“For individuals, collateral consequences never enter into the equation,” Raman said.
After all, collateral consequences for individuals can be devastating.
According to the American Bar Association Task Force on Collateral Consequences, the individual convict “may be ineligible for many federally-funded health and welfare benefits, food stamps, public housing, and federal educational assistance.”
“His driver’s license may be automatically suspended, and he may no longer qualify for certain employment and professional licenses. If he is convicted of another crime he may be subject to imprisonment as a repeat offender. He will not be permitted to enlist in the military, or possess a firearm, or obtain a federal security clearance. If a citizen, he may lose the right to vote. If not, he becomes immediately deportable.”
And Raman says that federal prosecutors can’t take these into consideration.
But must take the collateral consequences of a corporate conviction into consideration.
Why the difference?
Because the corporate crime lobby has marinated the justice system.
And morphed our criminal justice system from one that was meant to deliver equal justice for all to one where corporate criminals reign supreme.
“You can imagine why, when I see some of the biggest banks in the world, who get a slap on the wrist, for laundering drug money from the drug cartels, and (their executives) are not going to jail” Congresswoman Maxine Waters (D-California) told Raman at the hearing. “And then we have all of these young people getting arrested, some of them not criminal, just stupid, getting involved with small amounts of cocaine. And yet we have some of the richest, most powerful banks in the world laundering drug money from the drug cartels. Why don’t they (the bank executives) go to jail?”
Raman started to answer and Waters cut her off.
“We know what you do,” Waters said. “It’s what you do that we don’t like. What you do is — they get fined. And it’s a cost of doing business.”
Russell Mokhiber edits the Corporate Crime Reporter.
The journalism world has been rightly outraged by the Justice Department dragging the Associated Press (and now a Fox News reporter) into one of its sprawling leak investigations. As we wrote last week, by obtaining the call records of twenty AP phone lines, “the Justice Department has struck a terrible blow against the freedom of the press and the ability of reporters to investigate and report the news.”
But there are several other important lessons that this scandal can teach us besides how important free and uninhibited news-gathering is to the public’s right to know.
1. Weak Privacy Laws That Doomed AP Affect Everyone
The AP detailed in its letter to the Justice Department how its privacy was grossly invaded even though the government accessed only the call records of its reporters and not the content of their conversations. We completely agree. Unfortunately, this isn’t just a problem in the AP investigation. Law enforcement agencies routinely demand and receive this information about ordinary Americans over long periods of time without any court involvement whatsoever, much less a full warrant.
For example, according to information released by the phone companies to Rep. Ed Markey, Sprint alone received a staggering 500,000 subpoenas for call records data last year.
The DOJ’s decision to dive into these call records shows the growing need to update our privacy laws to eliminate the outmoded Third Party Doctrine—which holds that anything you give to a service provider, or that a service provider collects as part of providing you a service—can retain no reasonable expectation of privacy. In an era where email is stored by our providers, cellphone companies keep records that track our location and cloud services hold our documents, it’s long past time to bring our interpretation of the Fourth Amendment and statutory electronic privacy laws in compliance with the 21st Century.
In response to the AP scandal, a bipartisan coalition in Congress just introduced a bill to partially fix this problem called The Telephone Records Protection Act. The bill would require the Justice Department to get a judge’s approval before seeking these records. At EFF, we think the government should have to go even further than a court order: a judicial warrant showing the kind of probable cause required by the Fourth Amendment should be the standard. But this bill is certainly an improvement over administrative subpoenas, which don’t need a sign-off from a judge at all and allow the Executive branch to seek information without any external check.
2. Phone Companies May Give Up Your Information Without Telling You
As the New York Times reported, the AP is still examining if and when any telephone companies tried to push back on the over-broad requests for its call records. “But at least two of the journalists’ personal cellphone records were provided to the government by Verizon Wireless without any attempt to obtain permission to tell them so the reporters could ask a court to quash the subpoena,” the Times said. And it also seems clear that the AP itself wasn’t given notice before their phone company turned over the records.
In EFF’s 2013 “Who Has Your Back” report, which tracks several ways in which communications companies can help protect user privacy, we give a star for promising to notify users about government demands for data whenever whenever the company is not legally prevented from doing so. Notably, Verizon does not have such a notification policy and did not receive a star. In fact, Verizon was the only company to receive zero stars.
This isn’t a small problem or just a problem for journalists. Verizon received 260,000 similar subpoenas for call records last year. The government requests this information with regularity, and given the phone companies control the data, communications company policies are all that stand between you and governmental overreach.
Users should demand that their communications companies notify them when the government comes seeking information, unless they are legally barred by a court order.
3. Government often Overstates National Security Claims, Over-classifies Information
We’ve written many times about the many ways “national security” has been invoked—and exaggerated—in order to cover up government embarrassment or wrongdoing, or to assert powers that would normally not be granted under the Constitution. The government routinely over-classifies information that should never be secret, according to reports commissioned by the White House itself.
The most glaring example for EFF is our lawsuit over the NSA warrantless wiretapping program, where the government won’t admit or deny that the program even exists, citing the danger to national security, despite thousands of pages of public evidence. The government has argued the same thing in cases about torture and the CIA drone program where, many times, the same information that they claim is secret is on the front pages of the nation’s newspapers.
In the AP’s case, while Attorney General Holder says this leak put “lives at risk,” John Brennan said the opposite around the time of the story (“Brennan said the plot was never a threat to the U.S. public or air safety,” reported Reuters). The AP also held its story for six days until the CIA told them it was safe to publish and the White House had a news conference planned the day after the story to announce the successful counterterrorism operation.
As the late Supreme Court Justice Huge Black once said, “The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”
4. There’s Not Much Recourse For Prosecutorial Misconduct
In this case, just like the case of Aaron Swartz, there has been widespread criticism that the Justice Department has abused its authority and aggressively pursued parties in an unprofessional manner. As we detailed last week, it seems the Justice Department didn’t follow its own guidelines when issuing subpoenas about[?] the reporters, or at least went to the very edge of its own guidelines.
Just like in the Swartz case, the specific prosecutor has a history of over-aggressive prosecutions (even being accused of overzealous prosecution by Eric Holder himself when he was in private practice). Yet when Congress asked Holder at a hearing about the allegations, just like in the Swartz case, he did not admit to any wrongdoing, and was able to deflect questions about his department’s handling of the case. Unfortunately, there is not much recourse for meaningful remedy for the public in these situations, and this case is just the latest example.
5. Journalists Need to be Pro-Active in Protecting Their Digital Security
In an age where warrantless surveillance is skyrocketing and governments potentially have access to an astonishing amount of information, journalists must learn to proactively protect both themselves and their sources.
The Committee to Protect Journalists Journalist Security Guide is an excellent place to start. It addresses concerns faced by journalists working inside the United States and internationally.
Wired published an op-ed last week about the care one needs to take from the source’s end if one wishes to send information to the press undetected. Much of the advice is applicable to reporters talking to sources as well. Additionally, the New Yorker has just released a promising—but un-tested—anonymous leak submission system, coded by Aaron Swartz before he tragically died in January. In certain circumstances physical mail remains the safest option.
Overall, the final lesson is that journalists, and sources, need to take security seriously. Trusting that the government won’t come after you because you’re engaged in journalism, serving the public interest, or helping reveal wrongdoing is plainly not sufficient.
US Attorney General Eric Holder has claimed he was unaware of the subpoenas for AP’s phone records, but defended them as a necessary measure. Holder recused himself from the case that has been branded as an “unprecedented intrusion” into press freedom.
US lawmakers questioned the attorney general at a House Judiciary Committee about the two months of AP phone records obtained by the Justice Department without permission. In a session that saw the attorney on the back foot amid calls for his resign, he maintained his ignorance in the “ongoing matter.”
Flatly denying any prior knowledge to the subpoenas and who had issued them, he stated that he was 99 per cent sure that deputy attorney general James Cole had issued them.
“The matter is being supervised by the deputy attorney general. I am not familiar with the reasons why the subpoena was constructed in the way that it was because I’m simply not a part of the case,” Holder told the committee, adding he was confident that the people who are involved in the investigation adhered to Justice Department regulations.
Investigators wish to discern why it was necessary to gather so much information from AP phone records. The Justice Departments claims that the records were seized as part of an investigation into leaked data on a CIA operation in Yemen to stop an airliner bombing plot on the anniversary of the death of Osama Bin Laden.
Holder stressed that the leak was very serious and had put the safety of the American people at risk and as such the Justice Department’s action was justified.
Passing the buck
The Justice Department admitted its surveillance of AP’s phone lines in a letter to the organization’s heads last Friday. AP’s Chief Gary Pruitt reacted with ire, condemning the intrusion as a gross violation of press freedom that is inexcusable. AP estimates that over 100 of its journalists were affected by the phone surveillance and has implicated the involvement of the attorney general, alleging that subpoenas require his signature to be carried out.
There was a degree of frustration at Holder’s answers during the hearing due to his inability to answer questions on the subpoenas and why the Justice Department failed to negotiate with AP prior to the subpoenas, which is usually standard practice in such situations.
“There doesn’t appear to be any acceptance of responsibility for things that have gone wrong,” Rep. James Sensenbrenner, R-Wis., told Holder. He suggested that Justice Department office should stop by Harry S Truman Presidential Library and take a photo of the famous sign, “The buck stops here.”
The White House has also claimed ignorance, stating that it had no knowledge of “any attempt by the Justice Department to seek phone records of the AP.”
Federal prosecutors secretly obtained two months’ worth of telephone records of Associated Press journalists in what the news agency described Monday as a “massive and unprecedented intrusion.”
The Justice Department notified the AP on Friday that it had subpoenaed the records, which included more than 20 office, cellphone and home phone lines. The lines include the general AP office numbers in New York, Washington and Hartford, Conn., and the number for AP reporters in the House of Representatives press gallery.
The records included outgoing call numbers, the AP said, but it is unclear whether prosecutors also obtained incoming call numbers or the duration of calls. The news organization said it had no reason to think that the government listened in to the content of the calls. The government did not reveal why it seized the records, but the AP noted that federal officials have previously said they were investigating who had leaked information to the news service about a foiled terror plot in 2012. An AP story in May 2012 included details about a CIA operation in Yemen targeting al Qaeda operatives.
AP President and CEO Gary Pruitt called the action “a serious interference with AP’s constitutional rights to gather and report the news.”
Republicans were quick to criticize the Department of Justice (DOJ), saying that the invasion of privacy of a news outlet was just the latest example of an administration rife with problems. News of the AP probe broke as the White House is already fending off criticism of its handling of last year’s attacks on the embassy in Benghazi, Libya, and the revelation that the Internal Revenue Service had targeted conservative and Tea Party groups.
House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) called the DOJ subpoena “very disturbing” and said he expected to team up with House Judiciary Committee Chairman Bob Goodlatte (R-Va.) to probe the issue further.
“If this question went to the Attorney General then he’s responsible and he should be held accountable for what I think is wrong,” Issa said on CNN. “On the other hand, if it didn’t go to him, the question is: when is the Justice Department going to take responsibility for what it does?
“There are serious problems at DOJ, this is just the latest one.”
Department policy requires that the attorney general sign off on all requests for reporter phone records. It is unclear whether Attorney General Eric Holder signed off in this case.
Rep. Frank Wolf (R-Va.), the chairman of the Appropriations subcommittee that oversees the Justice budget, said the department’s move was reminiscent of the wiretapping authorized by former President Nixon’s administration.
“It’s unbelievable,” said Wolf in an interview with The Hill after news of the story broke. “It kind of reminds you of the mid-70s.”
“It is the arrogance of power and paranoia. I think it’s shocking. It reminds me of the Nixon days. If they can do it to the AP, they can do to any news service in the country.”
Criticism also came from the left.
“The media’s purpose is to keep the public informed and it should be free to do so without the threat of unwarranted surveillance,” Laura Murphy, director of the ACLU’s Washington Office, said in a statement. “The Attorney General must explain the Justice Department’s actions to the public so that we can make sure this kind of press intimidation does not happen again.”
The AP’s Pruitt sent a letter on Monday to Holder protesting the seizure of records, demanding that the government return the call records to the AP and destroy its copies.
“There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters,” Pruitt said.
“These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.”
Federal regulations require that subpoenas for a reporter’s phone records be as “narrowly drawn as possible.”
White House press secretary Jay Carney referred questions about the probe to the Justice Department.
In a statement, the U.S. Attorney’s Office for the District of Columbia said it takes its legal obligations and department policies seriously when subpoenaing media phone records.
“Those regulations require us to make every reasonable effort to obtain information through alternative means before even considering a subpoena for the phone records of a member of the media,” the office said. “We must notify the media organization in advance unless doing so would pose a substantial threat to the integrity of the investigation.
“Because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws,” it said.
The FBI revealed in 2008 that it had subpoenaed the phone records of New York Times and Washington Post reporters in Indonesia as part of a terrorism investigation. The agency apologized for the incident, saying it failed to follow department policies.
Goodlatte said he planned to ask Holder “pointed questions” about the AP records on Wednesday when the attorney general is slated to testify during a general Judiciary oversight hearing.
“Any abridgement of the First Amendment right to the freedom of the press is very concerning,” said Goodlatte in a statement.
“The House Judiciary Committee will thoroughly investigate this issue and will also ask Attorney General Eric Holder pointed questions about it at Wednesday’s oversight hearing,” he said.
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) also said he would be probing the issue further and looking into whether the government may have overstepped its bounds.
“The burden is always on the government when they go after private information – especially information regarding the press or its confidential sources,” said Leahy in a statement. “I want to know more about this case, but on the face of it, I am concerned that the government may not have met that burden. I am very troubled by these allegations and want to hear the government’s explanation.”
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When one conspires to violate federal law, it helps to have a government agency or two as one’s co-conspirators when law enforcement comes poking around, as telecom giant AT&T and others learned recently when the Defense Department (DOD) and the Department of Homeland Security (DHS) successfully pressured the Justice Department (DOJ) to agree secretly not to prosecute blatantly illegal wiretaps conducted by AT&T and other Internet service providers at the request of the agencies.
Although some press reports have termed this an authorization of activity that would otherwise be illegal, this is a misnomer. The executive branch lacks the power to retroactively declare criminal conduct to be lawful, but it can choose to ignore it by waiving prosecution pursuant to “prosecutorial discretion.”
Although the secret DOJ prosecution waiver initially applied to a cyber-security pilot project—the DIB Cyber Pilot—that allowed the military to monitor defense contractors’ Internet links, the program has since been renamed Enhanced Cybersecurity Services and is being expanded by President Obama to allow the government to snoop on the private networks of all companies operating in “critical infrastructure sectors,” including energy, healthcare, and finance starting June 12.
“The Justice Department is helping private companies evade federal wiretap laws,” warned Marc Rotenberg, executive director of the Electronic Privacy Information Center, which obtained more than 1,000 pages of government documents relating to the issue via a Freedom of Information Act request. “Alarm bells should be going off.”
The wiretap law referenced by Rotenberg is the Wiretap Act, codified at 18 USC 2511, which makes it a crime for a network operator to intercept communications carried on its networks unless the monitoring is a “necessary incident” to providing the service or it occurs with a user’s “lawful consent.” Since neither of those exceptions applied, DOD and DHS pressed DOJ attorneys to agree not to prosecute what were clearly prosecutable offenses by issuing an unknown number of “2511 letters,” which are normally used by DOJ to tell a company that its conduct fit within one of the lawful exceptions to the Act.
The purported “retroactive authorization” is similar to the “retroactive immunity” given the telecoms by Congress for their participation in illegal wiretapping and eavesdropping between 2001 and 2006. Likewise, former DHS official Paul Rosenzweig compared the case of the “2511 letters” to the CIA asking the Justice Department for legal memos justifying torture a decade ago. “If you think of it poorly, it’s a CYA [“cover your ass] function,” Rosenzweig says. “If you think well of it, it’s an effort to secure advance authorization for an action that may not be clearly legal.” Or may be clearly illegal.
In any event, Obama’s own expansion by mid-June of the snooping “to all critical infrastructure sectors,” defined as companies providing services whose disruption would harm national economic security or “national public health or safety” will proceed.
If you are 17 or under, a federal prosecutor could have charged you with computer hacking just for reading Seventeen magazine online—until today.
It’s not because the law got any better. Earlier today, we wrote about news sites that alarmingly prohibit their youth audiences from accessing the news and the potential criminal consequences under the Computer Fraud and Abuse Act. In response, the Hearst Corporation modified the terms of service across its family of publications, including the Hearst Teen Network, which notably includes titles like Seventeen, CosmoGirl, Teen and MisQuince.
Seventeen highlights the absurdity of giving terms of service the force of law under the CFAA. It boasts a readership of almost 4.5 million teen readers with an average age of 16 and a half, and yet, until today, the average reader was legally banned from visiting Seventeen.com. That’s right, for a magazine dedicated to teen fashion, the publisher’s terms explicitly restricted online access to readers 18 and older. What’s worse, the Justice Department could choose to bring the might of the government to enforce this contract against a Seventeen reader who may never have even seen the agreement.
Federal prosecutors have argued in court that accessing a website in violation of terms of service is a crime. If the website’s terms, like Seventeen magazine’s previous version, explicitly state that you must be an adult to visit their sites or participate in their interactive features, then teenagers accessing the site “without authorization” under the CFAA and could be doing jail time, according to the DOJ.
Hearst removed the following line from the terms for publications ranging from the Houston Chronicle to the San Francisco Chronicle, from Popular Mechanics to Seventeen:
YOU MAY NOT ACCESS OR USE THE COVERED SITES OR ACCEPT THE AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD.
The revisions are dated “April 23, 2013,” but presumably they meant April 3. Thank you Hearst, we appreciate your prompt response. But the real problem is the CFAA, which allows prosecutors to use these silly terms to manufacture computer crimes. And prosecutors have plenty of opportunities, as ridiculous terms of service abuond throughout the Internet.
We also previously reported on a variety of other websites—including the New York Times, Boston Globe, and NPR—that have similar terms of service that restrict people 12-and-under from reading the news. Atlantic Wire expanded on our blog post by pointing to even more news sites that do the same thing. While these terms weren’t as absurd as Hearst’s, Atlantic Wire also highlighted the law’s farcical implications using photos showing which of Shaquille O’Neal’s children were allowed to visit a lengthy list of news sites.
Thankfully, the Ninth and Fourth Circuits have rejected the government’s aggressive interpretation of the CFAA (with amicus help from EFF), but the Justice Department has shown no signs that it has given up on aggressive interpretations. The vague language of the law could turn virtually every Internet user into a potential criminal, allowing the Justice Department to use their discretion to go after any citizen they don’t like, rather than only harmful criminals the bill was intended to stop.
Mannie Garcia (photo: manniegarcia.com)
The Obama administration says Americans have the constitutional right to record police officers making arrests, lending weight to a legal debate that has grown in the era of camera-ready smartphones.
The administration’s legal position was stated in a court filing by the U.S. Department of Justice, which has sided with the plaintiff in Garcia v. Montgomery County.
The case involves Mannie Garcia, a photojournalist who, in June 2011, took pictures of two police officers in Wheaton, Maryland, making an arrest. The officers demanded that Garcia stop taking photos, and when he refused, they put him in a choke hold, confiscated his camera and arrested him. Garcia was later acquitted of disorderly conduct. He then sued the officers and department.
Garcia is best known for two photos he took of U.S. presidents: George W. Bush staring out the window of Air Force One in 2005 at the damage in New Orleans caused by Hurricane Katrina and the portrait of Barack Obama that Shepard Fairey turned into the iconic Obama “HOPE” poster.
In the statement filed in a Maryland federal court, the Justice Department said all individuals—not just credentialed photojournalists—have a First Amendment right to record law enforcement officers performing their duties.
The department added that Americans are protected under the Fourth and 14th Amendment from having their recordings seized without a warrant or due process.
Justice officials have urged the court to uphold these constitutional guarantees and reject the police department’s motion to dismiss the lawsuit.
To Learn More:
U.S. Weighs In Favor Of Right To Record Police (by Josh Gerstein, Politico)
Mannie Garcia v. Montgomery County, Maryland (U.S. District Court, Maryland)
Illinois Law Criminalizing the Recording of Police Activity Comes to an End after 51 Years (by Noel Brinkerhoff, AllGov)
Why are Americans Arrested for Videotaping Police in Public Places? (by Noel Brinkerhoff, AllGov)
Democrats on Capitol Hill want the Obama administration to investigate the deaths of four civilians in Honduras last year during an anti-cocaine raid involving U.S. law enforcement agents. But administration officials have balked at the request.
On May 11, 2012, four villagers in a boat on the River Patuca, two pregnant women, a 21-year-old man and a 14-year-old boy, were killed when local police entered the town of Ahuas in northeastern Honduras to conduct a counternarcotics operation. Another four boat passengers were injured by gunfire. It was later learned that members of the U.S. Drug Enforcement Administration (DEA) participated in the raid, which raised questions of whether Americans were responsible for the killings.
The Honduran government investigated the incident and concluded the DEA was not at fault for the deaths.
But 58 House Democrats were not satisfied with the probe, which they called “deeply flawed” in a letter to Secretary of State John Kerry and Attorney General Eric Holder Jr. calling for the U.S. to conduct its own examination.
Officials with the State Department and the Department of Justice said their agencies have no intention of reopening the matter, according to The Washington Times.
Government Won’t Probe of DEA Raid in Honduras (by Guy Taylor, Washington Times)
Collateral Damage of a Drug War (Center for Economic and Policy Research) (pdf)
Unlike the bombast that characterized the Bush administration’s assaults on U.S. and international law, the Obama regime tends to dribble out its rationales for gutting the Bill of Rights and every notion of global legality. This president prefers to create a fog – let’s call it the fog of his war against human rights – as he arrogates to himself the power to perpetually imprison or to summarily execute anyone, at any time, anywhere in the world. Obama assures us such authority is constitutionally rooted – it’s in there, believe me, he tells us – but he never produces legal chapter and verse to prove that presidential dictatorship is lawful. Instead, we get dribs and drabs of the administration’s position from lawyers defending Obama’s preventive detention law in the courts, or from informal statements by the attorney general, or even little tidbits gleaned from an Obama conversation with comedian Jon Stewart.
The latest hors d’oeuvre to be dished out comes in the form of a leak. I say “dished out” because leaked documents are commonly placed in public view by the administration in power, to test the political waters. This leaked Justice Department “white paper” appears to have been drawn up after the execution-by-drone of U.S. citizen Anwar Awlaki, in Yemen. It justifies the killing of anyone occupying a position of status in al-Qaida, or with the ever-changing universe of groups said to be “associated” with al-Qaida. The document stretches the definition of “imminent threat” to cover anyone engaged in activities directed against the U.S., whether or not an actual operation is planned or in progress. Most interestingly, the white paper empowers Obama to delegate the kill-at-will authority to “an informed, high-level official of the U.S. government.” Which has a certain logic, since dictators certainly have the power to delegate the carrying out of their unjust acts to whomever they choose.
Eleven U.S. senators are asking for further clarification of the administration’s legal position. But that is just more fog, since the Congress overwhelmingly passed Obama’s preventive detention law – twice!! – a law based on the same assumption that due process of law does not apply when the president says it’s wartime. Therefore, the commander-in-chief can lock up any American, without charge or trial, forever, or until he declares peace. The U.S. attorney general, Eric Holder, has made the administration’s position clear enough. Due process, he says, does not necessarily mean access to the judicial process – meaning, a trial. The process is whatever the president or the nearest “informed, high-level official of the U.S. government” says it is. Obama had redefined war, itself. The president told the Congress, after bombing Libya for eight months, that by his definition – which is the only one that counts – no state of war exists unless Americans become casualties, even if the U.S. kills tens of thousands, or millions. Dr. Martin Luther King Jr. was fond of saying that the arc of history bends towards justice. In the long term, that may be true. But Martin’s arc is not bending towards justice under this administration. It bends towards fascism, with a Black presidential face.
Glen Ford can be contacted at Glen.Ford@BlackAgendaReport.com.