Yes, the FBI was spying on the Muslim community in Southern California and, yes, it lied to a federal judge about the existence of documents relevant to a case regarding that surveillance.
But, no, the FBI shouldn’t be sanctioned for its behavior.
That was the ruling by the U.S. Ninth Circuit Court of Appeals, which disagreed with U.S. District Judge Cormac J. Carney, who ordered the government in 2011 to pay court costs for those bringing suit on behalf of the Islamic Shura Council of Southern California, an umbrella organization of mosques and Muslim organizations that has operated in Southern California since 1995.
The civil liberties case before the District Court alleged that U.S. authorities illegally spied on mosques in 2006 and 2007. The FBI was accused of sending an undercover informant into several Orange County mosques as part of Operation Flex and may have collected information on hundreds of people. The FBI admitted that it used the informant, but demanded that the case be tossed for national security reasons.
Lawyers for the mosques demanded to see surveillance records on the plaintiffs. The FBI told the judge it had provided all the information within the scope of the plaintiffs’ original Freedom of Information Act request. That wasn’t true and an incensed Judge Carney sanctioned the FBI.
“The Government cannot, under any circumstance, affirmatively mislead the Court,” Judge Carney wrote.
But the Ninth Court of Appeals said that wasn’t true and reversed his ruling. You can, apparently lie to a judge if later on you admit you lied.
The FBI had initially released eight heavily-redacted pages of information in response to the lawsuit brought against them and said that was all there was. But eventually they coughed up another 100 pages of equally heavily-redacted documents that they showed the judge privately in camera. Then, later, the FBI produced yet more documents.
In response to the serial deception, Carney wrote in his 2011 ruling, “The court must impose monetary sanctions to deter the government from deceiving the court again.”
The three-judge appellate panel disagreed, cited what is known as a safe harbor provision of the law, and reversed on procedural grounds, saying what counted was the fact that the judge eventually got the documents.
A frustrated Judge Carney tossed out the spying lawsuit against the FBI in August 2012 for national security reasons, likening himself to a fictional Greek hero who must save all those around him at the expense of a few. “Odysseus opted to pass by the monster and risk a few of his individual sailors, rather than hazard the loss of his entire ship to the sucking whirlpool,” the apologetic judge wrote.
To Learn More:
No Sanctions for FBI’s Evasive Court Tactics (by Tim Hull, Courthouse News Service)
Judge Sanctions FBI for Hiding Info from Him (by Tim Hull, Courthouse News Service)
Mosques Will Not Get Day in Court to Contest U.S. Spying (by Ken Broder, AllGov California)
Federal Court Sanctions FBI for Lying about Surveillance Records (by Noel Brinkerhoff and David Wallechinsky, AllGov)
Islamic Shura Council of Southern California et al v. Federal Bureau of Investigation (U.S. Ninth Circuit Court of Appeals) (pdf)
The Ninth Circuit appeals court today turned down copyright troll Righthaven’s last ditch effort to salvage its failed business model, upholding the federal district court’s decision to dismiss its bogus copyright case on the grounds that it never actually held the copyrights it was suing under.
In one of the two cases decided together, EFF represents Tad DiBiase, a criminal justice blogger who provides resources for difficult-to-prosecute “no body” murder cases. Righthaven sued DiBiase in 2010 based on a news article that DiBiase posted to his blog. Instead of paying them off, DiBiase fought back with the help of EFF and its co-counsel at Wilson, Sonsini, Goodrich and Rosati, and helped drive Righthaven out of business.
The leading issue on appeal was whether a newspaper could transfer the right to sue for copyright infringement to a copyright troll, while retaining all other rights in the newspaper articles. (audio of argument) Under the Copyright Act, only the “owner of an exclusive right under a copyright is entitled … to institute an action for any infringement of that particular right committed while he or she is the owner of it.”
Righthaven attempted to get around this rule by drafting a document that pretended to transfer copyrights even as a secret agreement between Righthaven and Stephens Media, the newspaper publisher, ensured that Stephens retained all of the rights to exploit the news articles. As the Ninth Circuit noted, citing a story about Abraham Lincoln: “we conclude that merely calling someone a copyright owner does not make it so.”
Nor was the Ninth Circuit impressed by Righthaven’s argument that the court should implement its intent, even if the contract drafting was not up to snuff. “The problem is not that the district court did not read the contract in accordance with the parties’ intent; the problem is that what the parties intended was invalid under the Copyright Act.” Finally, the Court rejected a desperate attempt by Righthaven to retroactively revise their contract after it started to lose in the courts.
With that, the court affirmed the lower court decisions tossing Righthaven’s cases. Since it had found that the Righthaven had no legal standing, it also vacated the decision in the companion case, Righthaven v. Hoehn, that had found fair use as an alternative grounds on which Righthaven lost.
The troll problem continues to persist, especially porn trolls, but today’s decision effectively ends one pernicious species by establishing that copyright owners cannot sell the right to sue to attorneys looking to make a quick buck off the back of bloggers, while otherwise doing business as usual.
In the appeal, Righthaven was represented by a new attorney, Erik Syverson of Miller Barondess. Righthaven’s CEO and founder, Steven A. Gibson is now an attorney with Dickinson Wright. EFF, Colleen Bal and Evan Stern from the law firm of Wilson Sonsini Goodrich & Rosati, and Las Vegas attorney Chad Bowers represent Mr. DiBiase. The appeal was consolidated with Righthaven v. Hoehn. Mr. Hoehn is represented by Marc Randazza and Jay DeVoy of the Randazza Legal Group.
- Copyright troll Righthaven finally, completely dead (arstechnica.com)
- Righthaven Finally Bites the Dust; 9th Circuit Court of Appeals Confirms No Standing to Sue (righthavenvictims.com)
In a potentially precedent-setting decision, the Ninth Circuit Court of Appeals ruled Monday that a Guild lawyer’s challenge to military spying on peace activists can proceed. The ruling marks the first time a court has affirmed people’s ability to sue the military for violating their First and Fourth Amendment rights.
“This has never been done before,” said NLG member attorney Larry Hildes, who is handling the case. “The U.S. government has spied on political dissidents throughout history and this particular plot lasted through two presidencies, but never before has a court said that we can challenge it the way we have.”
The ruling is the latest development in the lawsuit, Panagacos v. Towery, first brought by Hildes in 2009 on behalf of a group of Washington state antiwar activists who found themselves infiltrated by John Towery, an employee at a fusion center inside a local Army base. Fusion centers are multi-jurisdictional intelligence facilities which house federal and local law enforcement agencies alongside military units and private security companies. Their operations are largely secret and unregulated. There are currently 77 fusion centers in the United States.
The lawsuit names Towery as well as the Army, Navy, Air Force, FBI, CIA, Department of Homeland Security, and other law enforcement agencies. For at least two years, Towery posed as an activist with the antiwar group Port Militarization Resistance (PMR), a group that sought to oppose the wars in Iraq and Afghanistan through civil disobedience. The infiltration came to light when public records requests filed with the City of Olympia unearthed documents detailing an expansive surveillance operation. In addition to PMR, Towery targeted Students for a Democratic Society, the Olympia Movement for Justice and Peace, the Industrial Workers of the World, Iraq Veterans Against the War, an anarchist bookstore in Tacoma, and other activist groups.
The latest ruling denies the government’s appeal on the basis that the allegations of First and Fourth Amendment violations carried out by Towery are “plausible.” His lawyers have until December 31 to appeal the decision. If they do not appeal, the case will return to district court and the discovery phase will begin.
The National Lawyers Guild is the oldest and largest public interest/human rights bar organization in the United States. Its headquarters are in New York and it has members in every state.
Can law enforcement enter your house and use a secret video camera to record the intimate details inside? On Tuesday, the Ninth Circuit Court of Appeals unfortunately answered that question with “yes.”
U.S. Fish and Wildlife agents suspected Ricky Wahchumwah of selling bald and gold eagle feathers and pelts in violation of federal law. Equipped with a small hidden video camera on his clothes, a Wildlife agent went to Wahchumwah’s house and feigned interest in buying feathers and pelts. Unsurprisingly, the agent did not have a search warrant. Wahchumwah moved to suppress the video as an unreasonable search under the Fourth Amendment, but the trial court denied his motion. On appeal before the Ninth Circuit, we filed an amicus brief in support of Wahchumwah. We highlighted the Supreme Court’s January 2012 decision in United States v. Jones — which held that law enforcement’s installation of a GPS device onto a car was a “search” under the Fourth Amendment — and specifically focused on the concurring opinions of Justices Alito and Sotomayor, who were worried about the power of technology to eradicate privacy.
In our brief we argued that although a person may reveal small bits of information publicly or to a house guest, technology that allows the government to aggregate that data in ways that were impractical in the past means that greater judicial supervision and oversight is necessary. After all, a video camera can capture far more detail than the human eye and is specifically designed to allow the government to record, save and review details for another day, bypassing the human mind’s tendency to forget. That means police need a search warrant to engage in the type of invasive surveillance they did in Wahchumwah’s house.
Unconvinced, the Ninth Circuit instead relied on a case from 1966, Hoffa v. United States, ruling that Wahchumwah forfeited his privacy interest when he “voluntarily” revealed the interior of his home to the undercover agent. But its conclusion contradicts not only the Supreme Court’s decision in Jones, but also earlier Ninth Circuit caselaw as well.
In Jones, the Supreme Court made clear that a law enforcement trespass onto private property for the purpose of obtaining information was a “search” under the Fourth Amendment. Under common law, a defendant was not liable for trespass if their entry was authorized. But the Ninth Circuit previously made clear in Theofel v. Farey-Jones that a person’s consent to a trespass is ineffective if they’re “mistaken as to the nature and quality of the invasion intended.” In fact, Theofel cited another Ninth Circuit case where the court found a “police officer who, invited into a home, conceals a recording device for the media” to be a trespasser.
What that means here is that when the undercover agent concealed his identity and purpose, making Wahchumwah “mistaken as to the nature and quality” of the home visit, the government trespassed onto Wahchumwah’s property. Since that trespass was done for the purpose of obtaining information — to get evidence of bald and gold eagle feather and pelt sales — the government “searched” Wahchumwah’s home. And it needed a warrant to do that; without one, the search was unconstitutional.
Its troubling that the Ninth Circuit did not see it this way (nor are they the only one). Because the sad truth is that as technology continues to advance, surveillance becomes “voluntary” only by virtue of the fact we live in a modern society where technology is becoming cheaper, easier and more invasive. The Wahchumwah case exemplifies this: on suspicion of nothing more than the benign misdemeanor of selling eagle feathers, the government got to intrude inside the home and record every intimate detail it could: books on a shelf, letters on a coffee table, pictures on a wall. And we’re entering an age where criminal suspicions is no longer even necessary. Whether you’re calling a friend’s stolen cell phone and landing on the NYPD massive database of call logs, driving into one of the increasing number of cities using license plate scanners to record who comes in or out, or walking somewhere close to hovering drones, innocent people are running the risk of having their personal details stored in criminal databases for years to come.
The only way to avoid pervasive law enforcement monitoring shouldn’t be to make the choice to live under a rock in the wilderness somewhere. Instead, the Fourth Amendment means today what it meant in 1787: that the “right of the people to be secure in their persons, houses, papers, and effects” shouldn’t be violated unless the government comes back with a warrant.
Essentially, on a complex statutory analysis, the court ruled that the only claim left in the case, for money damages under 50 U.S.C. section 1810, could not be brought against the government itself, and instead could only be brought against government officials in their individual capacity. The court then ruled that the specific claims made against an official in his individual capacity, FBI Director Mueller, were not sufficient and could not be amended.
While the analysis is complex, the upshot is clear and very troubling.
First, the Court ruled that Congress in passing this section of FISA created a cramped statute that, at least in section 1810, only allows a claim for redress if the government uses the information it illegally gathers, and creates no a remedy against the government for the unlawful collection of information. Apparently, when it came to granting a legal claim for damages, Congress intended to allow the government to do as much wiretapping in violation of the law as it wanted to, and only allow individuals to sue for use of the information illegally collected. It seems unlikely that the American people believe that the line should be drawn in this strange way.
Additionally, the ruling certainly does not exonerate the government. To the contrary, the best that they could say is that they they got off on a pure technicality of Congressional drafting. There is nothing in this opinion, or in the whole course of this litigation, that undermines the basic revelation: that President Bush authorized the warrantless illegal and unconstitutional wiretapping of the two attorneys helping this accused — and now defunct — charity in their lawful, privileged communications with their client. No one should take this as a vindication of the Bush-era policies (or Obama’s continuation of them).
Finally, this ruling will have little, if any, affect on the EFF’s ongoing litigation Jewel v. NSA, where we seek to stop the ongoing surveillance of millions of innocent Americans, also without proper warrants or other judicial oversight. Jewel has many causes of action, not just 50 U.S.C. section 1810, and it seeks an injunction to stop ongoing behavior, not just monetary damages for past acts. So while we don’t agree with the Ninth Circuit’s ruling here, it will not prove a roadblock to our efforts to stop the spying. We’ve moved for a ruling in the Jewel case that FISA preempts the state secret privilege and hope to have that motion heard by the District Court in the fall.
- Appeals court dismisses warrantless wiretapping suit (arstechnica.com)
- Court gives government the go-ahead for warrantless wiretaps (rt.com)