The FBI is still actively thwarting its oversight. Last fall, DOJ Inspector General Michael Horowitz informed the House Judiciary Committee that the FBI was routinely denying his office documents it needed to perform investigations. The withheld documents included everything from electronic surveillance information to organizational charts. Not only did the FBI refuse to hand over requested documents, but it also stonewalled OIG investigations for so long that “officials under review [had] retired or left the agencies before the report [was] complete.”
Nearly six months later, the situation remains unchanged. Horowitz is again informing the House Judiciary Committee that the FBI is still less than interested in assisting his office. The same stonewalling tactics and withholding of information continues, preventing the IG from fully examining the DEA’s use of administrative subpoenas.
Tag: DOJ
US Court Rules That Kim Dotcom Is A ‘Fugitive’ And Thus DOJ Can Take His Money
In the long, convoluted and complex legal battles facing Megaupload founder Kim Dotcom, there was some bizarre stuff that happened late last year. As you may recall, early on, the US government seized basically all of his stuff and money. Dotcom has made efforts to get some of it returned, as it’s tough to fight the most powerful government in the world when it’s holding onto all of your money. Keep in mind from our previous discussions on asset seizure and forfeiture, the government can basically seize whatever it wants, just by claiming it was somehow related to a crime, but the seizure is only a temporary process. If the government wants to keep it, it then needs to go through a separate process known as civil asset forfeiture, which is effectively the government suing the assets. Back in July, the US government moved to forfeit everything it had seized from Dotcom in a new lawsuit with the catchy name USA v. All Assets Listed In Attachment A, And All Interest, Benefits, And Assets Traceable Thereto. As you may have guessed, Attachment A [pdf] is basically all of Kim Dotcom’s money and posessions.
Back in November, the DOJ argued that it should get to keep all of Kim Dotcom’s money and stuff because he’s a “fugitive”, which is a bizarre and ridiculous way to portray Kim Dotcom, who has been going through a long and protracted legal process over his potential extradition from New Zealand (though he’s offered to come to the US willingly if the government lets him mount a real defense by releasing his money). Dotcom’s lawyers told the court that it’s ridiculous to call him a fugitive, but it appears that Judge Liam O’Grady didn’t buy it.
In a ruling that was just posted a little while ago, O’Grady sided with the government, and gave the DOJ all of Dotcom’s things. You can read the full reasoning here and it seems to take on some troubling logic. Dotcom’s lawyers pointed out, as many of us have, that there is no secondary copyright infringement under criminal law, but the judge insists that there’s enough to show “conspiracy to commit copyright infringement.” But the reasoning here is bizarre. Part of it is the fact that Megaupload did remove links to infringing content from its top 100 downloads list. To me, that seems like evidence of the company being a good actor in the space, and not trying to serve up more infringing downloads. To Judge O’Grady and the DOJ, it’s somehow evidence of a conspiracy. No joke.
Is Retweeting ISIS ‘Material Support Of Terrorism’?
Last week there was a bizarre and ill-informed post by music industry lawyer Chris Castle — who has a weird infatuation with the idea that Google must be pure evil — in which he tried to argue that because YouTube wasn’t able to take down propaganda videos showing ISIS atrocities fast enough, that Google was providing “material support” for terrorism. As Castle notes:
Google’s distribution of jihadi videos on Google’s monopoly video search platform certainly looks like material support of terrorists which is itself a violation of the federal law Google claims to hold so dear. (See 18 U.S. Code §2339A and §2339B aka the U.S. Patriot Act.)
Of course, there are all sorts of problems with the Patriot Act, including its definitions of “material support of terrorism,” but to stretch the law to argue that providing an open platform and simply not removing videos fast enough (the videos in question all got removed pretty rapidly anyway, but not fast enough for Castle) is somehow “material support for terrorism” is flat out crazy. It stems from the same sort of confused logic that Castle has used in the past, arguing that Google and others must magically “just know” what is infringing and what is not — suggesting a true lack of understanding about the scale of offerings like YouTube and the resources needed to sort through all the content.
We were inclined to simply dismiss Castle’s nuttiness to the category of “WTF” where it belongs… until at a conference earlier this week, a DOJ official, John Carlin, who holds the role of assistant attorney general for national security, appeared to suggest that anyone helping ISIS’s social media campaign could be guilty of “material support” for terrorism:
John Carlin, the assistant attorney general for national security, told a cybersecurity conference in Washington on Monday that officials could try to blunt ISIS’s violent PR operation by essentially trying propagandists as terrorists. He suggested the Justice Department could bring prosecutions under the law against providing material support to a terrorist organization. His remarks were believed to be the first time a U.S. official has ever said that people who assist ISIS with online media could face criminal prosecution.
Carlin was asked at the conference whether he would “consider criminal charges” against people who are “proliferating ISIS social media.”
His answer: “Yes. You need to look at the particular facts and evidence.” But Carlin noted that the United States could use the material support law to prosecute “technical expertise” to a designated terrorist organization. And spreading the word for ISIS online could count as such expertise.
Eric Holder Says Putting Reporter James Risen Through Hell Is A Good ‘Example’ Of DOJ Process For Leak Investigations
Attorney General Holder raised some eyebrows earlier this week when answering a question about his Justice Department’s notorious crackdown on leaks, and by extension the press, most notably saying this about its notorious pursuit of New York Times reporter James Risen, while claiming the DOJ did nothing wrong:
If you look at the last case involving Mr. Risen, the way in which that case was handled after the new policies were put in place [is] an example of how the Justice Department can proceed.
The District Sentinel aptly took apart most of Holder’s comments, and they also provoked a stinging rebuke from Risen himself last night on Twitter. However, I think the facts of Risen’s case deserve a closer look to see just how unbelievable Holder’s statement is.
Let’s recap: since the very start of the Obama administration (read: for SIX years), the Justice Department was trying to subpoena James Risen. It fought for him to testify at a grand jury of CIA officer Jeffrey Sterling, which he refused to do, and when they were rejected by the court, it fought to have him testify in Sterling’s trial. They fought Risen on this all the way up to the Supreme Court.
Also, keep in mind, while the “new” media/leak guidelines that Holder bragged about are certainly a step forward, the old guidelines that applied to Risen’s case should have protected him just the same from the start—if they were actually enforced. He doesn’t get to pretend the preceding five and a half years didn’t happen just because he stregthened the Justice Department’s rules after public protest.
The case cost Risen and his publisher an untold fortune in legal fees, dominated his life, took away from time he could’ve spent reporting, and likely cost the taxpayers millions of dollars.
Along the way, we found out that the government had spied on virtually every aspect of James Risen’s digital life from phone calls, to emails, to credit card statements, bank records and more. (By the way, we still have no idea how they got this information. That’s secret.)
The Justice Department argued in court that not only was there no reporter’s privilege whatsoever — either embedded in the First Amendment or in Fourth Circuit common law — but also that journalists protecting sources was analogous to protecting drug dealers from prosecution.
Magistrate Judge Shoots Down Government’s Attempt To Gag Yahoo Indefinitely Over Grand Jury Subpoenas
California judge Paul Grewal continues to hold up his end of the “Magistrates’ Revolt.” Grewal was the magistrate who shot down the government’s open-ended request to grab every email in a person’s Gmail account and sort through them at its leisure. He was actually the second magistrate to shoot down this request. The government went “judge shopping” after Judge John Facciola told it the scope of the request needed to be narrowed considerably before he would even think about granting it. The government decided it still wanted all the email and traveled across the country to see Judge Grewal… who told them to GTFO without even giving the feds the option to rewrite the request.
Grewal is once again siding with the public and acting as a check against government overreach.
Law enforcement cannot indefinitely forbid Yahoo Inc from revealing a grand jury subpoena that seeks subscriber account information, a U.S. judge ruled, because doing so would violate the company’s free speech rights.
U.S. Magistrate Judge Paul Grewal in San Jose, California on Thursday wrote that the government’s request would prohibit Yahoo from disclosing the subpoena, even years after the grand jury concluded its probe. The court order does not disclose the target of the federal investigation.
“In an era of increasing public demand for transparency about the extent of government demands for data from providers like Yahoo!, this cannot stand,” Grewal wrote.
CIA Wanted To Throw The CFAA At Senate Staffers For Unauthorized Googling
Marcy Wheeler has picked up on an interesting claim made in the CIA’s “We Did Nothing Wrong” report. This report — an in-house investigation of the CIA’s snooping on/hacking Senate staffers during the compilation of the Torture Report — tossed out the Inspector General’s findings and cleared the agency of any misconduct. It then went on to disingenuously claim that it was the Senate, not the CIA, that broke the rules.
According to the CIA’s investigators, Senate staffers accessed documents they weren’t supposed to see, apparently by “abusing” the shared network set up explicitly for the Torture Report compilation. What Wheeler spotted — in a very thorough fisking of the CIA investigative report by Katherine Hawkins of Just Security — is the attempted criminalization of Google searches.