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Paul Merrell

It's A-OK for FBI agents to silence web giants, says appeals court * The Register - 0 views

  • Gagging orders in the FBI's National Security Letters are all above board and constitutional, a California court has ruled.

    These security letters are typically sent to internet giants demanding information on whoever is behind a username or email address. Crucially, these requests include clauses that prevent the organizations from warning specific subscribers that they are under surveillance by the Feds.

    Cloudflare and Credo Mobile aren't happy with that, and – with the help of rights warriors at the EFF – challenged the gagging orders. Despite earlier successes in their legal battle, the 9th US Circuit Court of Appeals ruled [PDF] on Monday that the gagging orders do not trample on First Amendment rights.

  • The FBI dishes out thousands of National Security Letters (NSLs) every year; they can simply be issued by a special agent in charge in a bureau field office, and don’t require judicial review. They allow the Feds to obtain the name, address, and records of any services used – but not the contents of conversations – plus billing records of a person, and forbid the hosting company from telling the subject, meaning those under investigation can’t challenge the decision.

    It used to be the case that companies couldn’t even mention the existence of the NSL system for fear of prosecution. However, in 2013 a US district court in San Francisco ruled that such extreme gagging violated the First Amendment. That decision came after Google, and later others, started publishing the number of NSL orders that had been received, in defiance of the law.

    In 2015 the Obama administration amended the law to allow companies limited rights to disclose NSL orders, and to set a three-year limit for the gagging order. It also set up a framework for companies to challenge the legitimacy of NSL subpoenas, and it was these changes that caused the appeals court verdict in favor of the government.

Paul Merrell

Microsoft Says U.S. Is Abusing Secret Warrants - 0 views

  • “WE APPRECIATE THAT there are times when secrecy around a government warrant is needed,” Microsoft President Brad Smith wrote in a blog post on Thursday. “But based on the many secrecy orders we have received, we question whether these orders are grounded in specific facts that truly demand secrecy. To the contrary, it appears that the issuance of secrecy orders has become too routine.”

    With those words, Smith announced that Microsoft was suing the Department of Justice for the right to inform its customers when the government is reading their emails.

    The last big fight between the Justice Department and Silicon Valley was started by law enforcement, when the FBI demanded that Apple unlock a phone used by San Bernardino killer Syed Rizwan Farook.

    This time, Microsoft is going on the offensive. The move is welcomed by privacy activists as a step forward for transparency — though it’s also for business reasons.

  • Secret government searches are eroding people’s trust in the cloud, Smith wrote — including large and small businesses now keeping massive amounts of records online. “The transition to the cloud does not alter people’s expectations of privacy and should not alter the fundamental constitutional requirement that the government must — with few exceptions — give notice when it searches and seizes private information or communications,” he wrote.

    According to the complaint, Microsoft received 5,624 federal demands for customer information or data in the past 18 months. Almost half — 2,576 — came with gag orders, and almost half of those — 1,752 — had “no fixed end date” by which Microsoft would no longer be sworn to secrecy.

    These requests, though signed off on by a judge, qualify as unconstitutional searches, the attorneys argue. It “violates both the Fourth Amendment, which affords people and businesses the right to know if the government searches or seizes their property, and the First Amendment, which enshrines Microsoft’s rights to talk to its customers and to discuss how the government conducts its investigations — subject only to restraints narrowly tailored to serve compelling government interests,” they wrote.

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    The Fourth Amendment argument that people have a right to know when their property has been searched or seized is particularly interesting to me. If adopted by the Courts, that could spell the end of surveillance gag orders. 
Paul Merrell

FBI Flouts Obama Directive to Limit Gag Orders on National Security Letters - The Inter... - 0 views

  • Despite the post-Snowden spotlight on mass surveillance, the intelligence community’s easiest end-run around the Fourth Amendment since 2001 has been something called a National Security Letter.

    FBI agents can demand that an Internet service provider, telephone company or financial institution turn over its records on any number of people — without any judicial review whatsoever — simply by writing a letter that says the information is needed for national security purposes. The FBI at one point was cranking out over 50,000 such letters a year; by the latest count, it still issues about 60 a day.

    The letters look like this:

  • Recipients are legally required to comply — but it doesn’t stop there. They also aren’t allowed to mention the order to anyone, least of all the person whose data is being searched. Ever. That’s because National Security Letters almost always come with eternal gag orders. Here’s that part:
  • Despite the use of the word “now” in that first sentence, however, the FBI has yet to do any such thing. It has not announced any such change, nor explained how it will implement it, or when.

    Media inquiries were greeted with stalling and, finally, a no comment — ostensibly on advice of legal counsel.

    “There is pending litigation that deals with a lot of the same questions you’re asking, out of the Ninth Circuit,” FBI spokesman Chris Allen told me. “So for now, we’ll just have to decline to comment.”

    FBI lawyers are working on a court filing for that case, and “it will address” the new policy, he said. He would not say when to expect it.

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  • That means the NSL process utterly disregards the First Amendment as well.

    More than a year ago, President Obama announced that he was ordering the Justice Department to terminate gag orders “within a fixed time unless the government demonstrates a real need for further secrecy.”

    And on Feb. 3, when the Office of the Director of National Intelligence announced a handful of baby steps resulting from its “comprehensive effort to examine and enhance [its] privacy and civil liberty protections” one of the most concrete was — finally — to cap the gag orders:

    In response to the President’s new direction, the FBI will now presumptively terminate National Security Letter nondisclosure orders at the earlier of three years after the opening of a fully predicated investigation or the investigation’s close.

    Continued nondisclosures orders beyond this period are permitted only if a Special Agent in Charge or a Deputy Assistant Director determines that the statutory standards for nondisclosure continue to be satisfied and that the case agent has justified, in writing, why continued nondisclosure is appropriate.

  • There is indeed a significant case currently before the federal appeals court in San Francisco. Oral arguments were in October. A decision could come any time.

    But in that case, the Electronic Frontier Foundation (EFF), which is representing two unnamed communications companies that received NSLs, is calling for the entire NSL statute to be thrown out as unconstitutional — not for a tweak to the gag. And it has a March 2013 district court ruling in its favor.

    “The gag is a prior restraint under the First Amendment, and prior restraints have to meet an extremely high burden,” said Andrew Crocker, a legal fellow at EFF. That means going to court and meeting the burden of proof — not just signing a letter.

    Or as the Cato Institute’s Julian Sanchez put it, “To have such a low bar for denying persons or companies the right to speak about government orders they have been served with is anathema. And it is not very good for accountability.”

  • In a separate case, a wide range of media companies (including First Look Media, the non-profit digital media venture that produces The Intercept) are supporting a lawsuit filed by Twitter, demanding the right to say specifically how many NSLs it has received.

    But simply releasing companies from a gag doesn’t assure the kind of accountability that privacy advocates are saying is required by the Constitution.

    “What the public has to remember is a NSL is asking for your information, but it’s not asking it from you,” said Michael German, a former FBI agent who is now a fellow with the Brennan Center for Justice. “The vast majority of these things go to the very large telecommunications and financial companies who have a large stake in maintaining a good relationship with the government because they’re heavily regulated entities.”

  • So, German said, “the number of NSLs that would be exposed as a result of the release of the gag order is probably very few. The person whose records are being obtained is the one who should receive some notification.”

    A time limit on gags going forward also raises the question of whether past gag orders will now be withdrawn. “Obviously there are at this point literally hundreds of thousands of National Security Letters that are more than three years old,” said Sanchez. Individual review is therefore unlikely, but there ought to be some recourse, he said. And the further back you go, “it becomes increasingly implausible that a significant percentage of those are going to entail some dire national security risk.”

    The NSL program has a troubled history. The absolute secrecy of the program and resulting lack of accountability led to systemic abuse as documented by repeated inspector-general investigations, including improperly authorized NSLs, factual misstatements in the NSLs, improper requests under NSL statutes, requests for information based on First Amendment protected activity, “after-the-fact” blanket NSLs to “cover” illegal requests, and hundreds of NSLs for “community of interest” or “calling circle” information without any determination that the telephone numbers were relevant to authorized national security investigations.

  • Obama’s own hand-selected “Review Group on Intelligence and Communications Technologies” recommended in December 2013 that NSLs should only be issued after judicial review — just like warrants — and that any gag should end within 180 days barring judicial re-approval.

    But FBI director James Comey objected to the idea, calling NSLs “a very important tool that is essential to the work we do.” His argument evidently prevailed with Obama.

  • NSLs have managed to stay largely under the American public’s radar. But, Crocker says, “pretty much every time I bring it up and give the thumbnail, people are shocked. Then you go into how many are issued every year, and they go crazy.”

    Want to send me your old NSL and see if we can set a new precedent? Here’s how to reach me. And here’s how to leak to me.

Paul Merrell

The Ninth Circuit Holds-Correctly-That a Blogger Has the Same Defamation Protection as ... - 0 views

  • On January 17, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled, as a matter of first impression, that First Amendment defamation rules apply equally to both the institutional press and individual speakers and writers, such as bloggers.
  • In reaching this conclusion, the Ninth Circuit analyzed two key prior Supreme Court precedents: New York Times v. Sullivan (public official seeking damages for defamation must show “actual malice” as defined as a showing that

    the defendant published the defamatory statement with knowledge that it was false, or with reckless disregard as to whether it was false or not) and Gertz v. Robert Welch, Inc. (First Amendment requires only a negligence standard for private defamation actions). Notably, Gertz involved an institutional media defendant, and the Gertz Court invoked the need to shield “the press and broadcast media from the rigors of strict liability for defamation.” Yet neither New York Times nor Gertz, as the Ninth Circuit noted, were expressly limited to the institutional press. Moreover,a number of other Supreme Court cases have rejected such a limitation: Bartnicki v. Vopper; Cohen v. Cowles Media Co.;

    First National Bank of Boston v. Bellotti; and Citizens United v. Federal Election Commission.

Paul Merrell

EPIC - EPIC Prevails in FOIA Case About "Internet Kill Switch" - 0 views

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    Talk about a prior restraint of speech! The link at the bottom of the quoted portion takes you to a page with the relevant court records.
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