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Paul Merrell

Report on the Free Flow of Information Act - 0 views

www.fas.org/...freeflow.html

surveillance state s.987 press-shield-legislation

shared by Paul Merrell on 13 Nov 13 - No Cached
  • 113th Congress Report SENATE 1st Session 113-118 ====================================================================== FREE FLOW OF INFORMATION ACT OF 2013 _______ November 6, 2013.--Ordered to be printed _______ Mr. Leahy, from the Committee on the Judiciary, submitted the following R E P O R T together with ADDITIONAL AND MINORITY VIEWS [To accompany S. 987]
  • Senator Cornyn offered an amendment (ALB13708) that would ensure that all persons or entities that are protected under the Free Press Clause of the First Amendment are covered by the bill's privilege. The Committee rejected the amendment by a roll call vote. The vote record is as follows: Tally: 4 Yeas, 13 Nays, 1 Pass Yeas (4): Cornyn (R-TX), Lee (R-UT), Cruz (R-TX), Flake (R- AZ) Nays (13): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY), Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D- MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Grassley (R-IA), Hatch (R-UT), Graham (R-SC) Pass (1): Feinstein (D-CA)
  • ADDITIONAL MINORITY VIEWS FROM SENATORS CORNYN, SESSIONS, LEE, AND CRUZ On December 15, 1791, the United States of America ratified the Bill of Rights--the first ten amendments to the U.S. Constitution. The first among them states: ``Congress shall make no law . . . abridging the freedom . . . of the press[.]'' United States Constitution, amend. I. The freedom of the press does not discriminate amongst groups or individuals--it applies to all Americans. As the Supreme Court has long recognized, it was not intended to be limited to an organized industry or professional journalistic elite. See Branzburg v. Hayes, 408 U.S. 665, 704 (1972) (the ``liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods. Freedom of the press is a fundamental personal right[.]''); Lovell v. Griffin, 303 U.S. 444, 452 (1938) (``The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.''). The Founders recognized that selectively extending the freedom of the press would require the government to decide who was a journalist worthy of protection and who was not, a form of licensure that was no freedom at all. As Justice White observed in Branzburg, administering a privilege for reporters necessitates defining ``those categories of newsmen who qualified for the privilege.'' 408 U.S. at 704 That inevitably does violence to ``the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.'' Id.
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  • The First Amendment was adopted to prevent--not further-- the federal government licensing of media. See Lovell, 303 U.S. at 451 (striking an ordinance ``that . . . strikes at the very foundation of the freedom of the press by subjecting it to license and censorship. The struggle for the freedom of the press was primarily directed against the power of the licensor.''). But federal government licensing is exactly what the Free Flow of Information Act would create. The bill identifies favored forms of media--``legitimate'' press--by granting them a special privilege. That selective grant of privilege is inimical to the First Amendment, which promises all citizens the ``freedom of the press.'' See Branzburg, 408 U.S. at 704 (``Freedom of the press is a fundamental personal right[.]'') (emphasis added). It also threatens the viability of any other form of press. The specially privileged press will gain easier access to news. That will tip the scales against its competitors and make it beholden to the government for that competitive advantage. A law enacted to protect the press from the state will, in fact, make that press dependent upon the federal government--anything but free.
  • Proponents of this bill suggest that, because the Constitution does not provide a reporter's privilege, Congress's provision of a limited privilege cannot raise any constitutional concerns. Those proponents misunderstand--and thus run afoul of--the First Amendment. The First Amendment was adopted to prevent press licensure. While it does not create a ``reporter's privilege'' on its own, it abhors the selective grant of privilege to one medium over another. The American Revolution was stoked by renegade pamphleteers and town criers who used unlicensed presses to overthrow tyranny. Today, ``any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.'' Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997). If today's town crier or pamphleteer must meet a test set by the federal government to avail themselves of liberty, we have gone less far from tyranny than any of us want to admit. This bill runs afoul of the First Amendment to the United States Constitution and amounts to de facto licensing. It would weaken the newly-illegitimate press, render the specially privileged press supplicant to the federal government and ultimately undermine liberty. This legislation also raises a number of serious national security concerns, as discussed in the minority views authored by Senator Sessions. For these reasons, we oppose this bill. John Cornyn. Jeff Sessions. Michael S. Lee. Ted Cruz.
  • Paul Merrell on 13 Nov 13
     
    The Senate Committee on the Judiciary reports with a do-pass recommendation a bill to grant a "covered journalist" a limited testimonial privilege against revealing news sources. But the attempt to grant such a shield to mainstream media reporters not only runs afoul of the First Amendment as indicated by the quoted minority view, but also a denial of equal protection of the law for non-mainstream media investigators and lowly citizens. The core problem is the Supreme Court has invariably held that members of the press have no greater protection under the first amendment than the lowly pamphleteer, hence the denial of Equal Protection of the law in this legislation.  The legislation is in direct response to government surveillance of the press and reporters being required by the courts to reveal their sources of classified information. 
Paul Merrell

First Unitarian Church of Los Angeles v. NSA | Electronic Frontier Foundation - 0 views

www.eff.org/...arian-church-los-angeles-v-nsa

surveillance state NSA NSA-blowback litigation 1st Amendment EFF

shared by Paul Merrell on 13 Jan 14 - No Cached
  • Twenty-two organizations including Unitarian church groups, gun ownership advocates, and a broad coalition of membership and political advocacy organizations filed suit against the National Security Agency for violating their First Amendment right of association by illegally collecting their call records. The coalition is represented by EFF. At the heart of First Unitarian Church of Los Angeles v. NSA is the bulk telephone records collection program that was confirmed by the publication of an order from the Foreign Intelligence Surveillance Court (FISC) in June of 2013. The Director of National Intelligence (DNI) further confirmed that this formerly secret document was authentic, and part of a broader program to collect all major telecommunications customers’ call history. The order demands wholesale collection of every call made, the location of the phone, the time of the call, the duration of the call, and other “identifying information” for every phone and call for all customers of Verizon for a period of three months. Government officials further confirmed that this was just one of series of orders issued on a rolling basis since at least 2006. First Unitarian v. NSA argues that this spying violates the First Amendment, which protects the freedom to associate and express political views as a group.
  • Twenty-two organizations including Unitarian church groups, gun ownership advocates, and a broad coalition of membership and political advocacy organizations filed suit against the National Security Agency for violating their First Amendment right of association by illegally collecting their call records. The coalition is represented by EFF. At the heart of First Unitarian Church of Los Angeles v. NSA is the bulk telephone records collection program that was confirmed by the publication of an order from the Foreign Intelligence Surveillance Court (FISC) in June of 2013. The Director of National Intelligence (DNI) further confirmed that this formerly secret document was authentic, and part of a broader program to collect all major telecommunications customers’ call history. The order demands wholesale collection of every call made, the location of the phone, the time of the call, the duration of the call, and other “identifying information” for every phone and call for all customers of Verizon for a period of three months. Government officials further confirmed that this was just one of series of orders issued on a rolling basis since at least 2006. First Unitarian v. NSA argues that this spying violates the First Amendment, which protects the freedom to associate and express political views as a group.
  • The case challenges the mass telephone records collection that was confirmed by the FISA Order that was published on June 5, 2013 and confirmed by the Director of National Intelligence (DNI) on June 6, 2013. The DNI confirmed that the collection was “broad in scope” and conducted under the “business records” provision of the Foreign Intelligence Surveillance Act, also known as section 215 of the Patriot Act and 50 U.S.C. section 1861. The facts have long been part of EFF’s Jewel v. NSA case. The case does not include section 702 programs, which includes the recently made public and called the PRISM program or the fiber optic splitter program that is included (along with the telephone records program) in the Jewel v. NSA case. 
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  • Our goal is to highlight one of the most important ways that the government collection of telephone records is unconstitutional: it violates the First Amendment right of association. When the government gets access to the phone records of political and activist organizations and their members, it knows who is talking to whom, when, and for how long. This so-called “metadata,” especially when collected in bulk and aggregated, tracks the associations of these organizations. After all, if the government knows that you call the Unitarian Church or Calguns or People for the American Way or Students for Sensible Drug Policy regularly, it has a very good indication that you are a member and it certainly knows that you associate regularly. The law has long recognized that government access to associations can create a chilling effect—people are less likely to associate with organizations when they know the government is watching and when the government can track their associations. 
  • Twenty-two organizations including Unitarian church groups, gun ownership advocates, and a broad coalition of membership and political advocacy organizations filed suit against the National Security Agency for violating their First Amendment right of association by illegally collecting their call records. The coalition is represented by EFF. At the heart of First Unitarian Church of Los Angeles v. NSA is the bulk telephone records collection program that was confirmed by the publication of an order from the Foreign Intelligence Surveillance Court (FISC) in June of 2013. The Director of National Intelligence (DNI) further confirmed that this formerly secret document was authentic, and part of a broader program to collect all major telecommunications customers’ call history. The order demands wholesale collection of every call made, the location of the phone, the time of the call, the duration of the call, and other “identifying information” for every phone and call for all customers of Verizon for a period of three months. Government officials further confirmed that this was just one of series of orders issued on a rolling basis since at least 2006. First Unitarian v. NSA argues that this spying violates the First Amendment, which protects the freedom to associate and express political views as a group.
  • The First Amendment right of association is a well established doctrine that prevents the government “interfering with the right to peaceably assemble or prohibit the petition for a governmental redress of grievances.” The most famous case embracing it is a 1958 Supreme Court Case from the Civil Rights era called  NAACP v. Alabama. In that case the Supreme Court held that it would violate the First Amendment for the NAACP to have to turn over its membership lists in litigation. The right stems from the simple fact that the First Amendment protects the freedom to associate and express political views as a group. This constitutional protection is critical because, as the court noted “[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association[.]” NAACP v. Alabama, 357 U.S. at 460. As another court noted: the Constitution protects freedom of association to encourage the “advancing ideas and airing grievances” Bates v. City of Little Rock, 361 U.S. 516, 522-23 (1960).
  • The collection and analysis of telephone records give the government a broad window into our associations. The First Amendment protects against this because, as the Supreme Court has recognized, “it may induce members to withdraw from the association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of their exposure.” NAACP v. Alabama, 357 U.S. at 462-63. See also Bates, 361 U.S. at 523; Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539 (1963).  Privacy in one’s associational ties is also closely linked to freedom of association: “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.” NAACP v. Alabama, 357 U.S. at 462. 
  • The Supreme Court has made clear that infringements on freedom of association may survive constitutional scrutiny only when they “serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984); see also NAACP v. Button, 371 U.S. at 341; Knox v. SEIU, Local 1000, 132 S. Ct. 2277, 2291 (2012)  Here, the wholesale collection of telephone records of millions of innocent Americans’ communications records, and thereby collection of their associations, is massively overbroad, regardless of the government’s interest. Thus, the NSA spying program fails under the basic First Amendment tests that have been in place for over fifty years.
  • Paul Merrell on 13 Jan 14
     
    This case is related to EFF's earlier pending case, Jewel v. NSA and has been assigned to Judge Whyte, the same judge who ruled earlier in Jewel that the State Secrets Privilege does not apply to NSA's call metadata "haystack." The plaintiffs are 22 different groups who would make strange bedfellows indeed, except in opposition to government surveillance and repression. 
Paul Merrell

Losing public opinion on BDS, activists turn to 'lawfare' - 0 views

mondoweiss.net/...lawfare-against-divestment

war & peace Palestine BDS Ilinois legislation 1st Amendment

shared by Paul Merrell on 24 May 15 - No Cached
  •      Champions of proposed Senate Bill SB1761, which passed both houses of the Illinois General Assembly May 18th, say it’s designed to fight anti-Semitic activism and protects Israel from the existential threat posed by the Boycott, Divestment, & Sanctions movement (BDS). Opponents of the bill say it places the economic welfare of Israel before U.S. interests, tacitly endorses the full annexation of the West Bank into Israel, and violates our country’s First Amendment rights. The bill’s opponents are right. But a potential threat of this legislation, edging closer to the criminalization of advocating for Palestinian rights and against occupation, threatens our core First Amendment rights and has been relatively absent from the discourse surrounding this bill.
  • And that’s not just here in the United States. Israeli lawmakers sought to criminalize public support of boycotts against Israel back in 2010 through their “Law for Prevention of Damage to the State of Israel through Boycott.” When I spoke with a staffer for Illinois State Rep. Sara Feigenholtz, one of the bill’s primary sponsors, inquiring if SB1761 was modeled after the 1977 amendments to the Export Administration Act (regarding the Arab League boycott of Israel), I was informed “These ‘antiboycott’ laws are the 1977 amendments to the Export Administration Act (EAA) and the Ribicoff Amendment to the 1976 Tax Reform Act (TRA). I hope this helps.…SB1761 falls in line with these federal laws”
  • Referencing EAA is another indication of the move toward weakening our First Amendment rights, as that amendment was meant to criminalize people who adhered to the Arab League’s boycott of Israel. Melissa Redmiles writes of the 70’s legislation in International Boycott Reports, 2003 and 2004 (pdf), from the IRS.gov website: “Those U.S persons who agree to participate in such boycotts are subject to criminal and civil penalties.” SB1761 seems to be the latest manifestation of a trend toward enacting a kind of trickle-down suppression. From the Center For Constitutional Rights website for Palestine Solidarity Legal Support: “These bills must be opposed in order to protect the right to engage in boycotts that reflect collective action to address a human rights issue, which the US Supreme Court has declared is protected speech… These bills would make it state policy to discourage support of human rights boycotts against Israel… and have the potential to stifle expressions of political beliefs…”
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  • SB1761 requires all five public retirement benefits systems of the Illinois Pension Code to divest “all direct holdings” from any company which engages in boycotting Israel. This is designed to financially punish companies which participate in BDS; presumably European companies. But it will also burden an already severely crippled,“worst in nation”, Illinois pension system. Illinois Governor Bruce Rauner was quoted by Jewish United Fund News (JUF) earlier this month as saying, “I made a pledge that Illinois would become the first state in America to divest its public pension funds from any company in the world that boycotts Israel.” Rauner includes U.S. companies in his threat of divestment when he says “any company in the world.”
  • Relatedly from SB1761 itself: “It is not the intent [of this bill]… to cause divestiture from any company based in the United States of America.” Not intended? This soft language clearly leaves the door open to require Illinois public retirement systems’ divestiture from U.S. companies that participate in BDS. So, while politicians endorsing this bill can point to this statement of “intent” as some kind of safeguard for American companies, this same sentence simultaneously functions as a veiled threat to those companies.
  • SB1761 characterizes the motivations of the BDS movement as “intending to penalize… Israel.” Similarly, JUF News this month quoted JUF President Steven B. Nasatir saying, “At the core of the BDS movement is a quest to delegitimize Israel as a Jewish state.” That’s like stating that the intent of the Civil Rights Montgomery bus boycott was to “penalize white people.
  • Paul Merrell on 24 May 15
     
    As though ACLU didn't already have enough lawsuits going. But this takes the cake. Although anti-BDS legislation has been introduced several times in Congress but never got off the ground because of the First Amendment barrier. Similar measures pending in Europe too.  The good news here is that Israel's right-wing government is getting desperate. The BDS movement is mushrooming globally and routinely is achieving success in convincing companies (and recording artists, etc.) to pull out of Israel. More so in Europe, but BDS is off to a great start in the U.S. Kerry warned Netanyahu before the latter blew up the last round of negotations with the Palestinians that BDS would soon make it politically impossible for the U.S. to continue providing cover for Israel on the U.N. Security Council. There's a big shift of public opinion in the U.S. about Israel's abuse of Palestinians well under way. It won't be long before introducing Israel Lobby measures in Congress will stop happening. 
Paul Merrell

State department designates German rapper turned Islamic State 'operative' - The Long W... - 0 views

www.longwarjournal.org/...state_department_des_4.php

war & peace civil-liberties terrorists™ rapper 1st Amendment

shared by Paul Merrell on 11 Feb 15 - No Cached
  • The State Department announced today that Denis Cuspert, a German member of the Islamic State, has been added to the US government's list of specially designated global terrorists. Cuspert previously performed as a rapper, going by the name of Deso Dogg, and even briefly toured with the popular American performer known as DMX. Some of Cuspert's music is still available for purchase in the US and elsewhere online. However, State explains that as a result of his designation as a terrorist "all property subject to US jurisdiction in which Cuspert has any interest is blocked and US persons are prohibited from engaging in transactions with him or to his benefit." US citizens cannot, therefore, legally purchase his rap songs online if he receives proceeds from the sale. According to State, Cuspert is "a foreign terrorist fighter and operative for ISIL," or the Islamic State of Iraq and the Levant. (The group calls itself the Islamic State, but the US government refers to it by the acronym of its previous name, or ISIL.) "Cuspert joined ISIL in 2012 and has appeared in numerous videos on its behalf, the most recent dating from early November, in which he appears holding a severed head he claims belongs to a man executed for opposing ISIL." Cuspert, who is 39 years old, "spent time in jail for various offensives" in Germany before traveling to Syria. He is still "wanted by the German government on suspicion of involvement in terrorist activities in his home country."
  • There has been some controversy over whether or not Cuspert is really alive. He has been reported dead in the past. Some of the confusion is owed to Cuspert's nom de guerre, Abu Talha al Almani, which has been used by other Islamic State jihadists, including one who was killed in Syria last year.
  • Paul Merrell on 11 Feb 15
     
    There are some obvious first amendment issues with banning the purchase of music, magnified when the music carries a political message. Where, as here, the purpose is not to regulate speech but has an incidental effect on speech, the restriction will be upheld only "if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." United States v. O'Brien, 391 U.S. 367, 377 (U.S. 1968).  There is a strong argument here that the State Department is not using the least restrictive means of blocking Cuspert's income from sale of his music, i.e., the government could instead leavy against Cuspert's share of the revenue from the recording studio.  I presume that either the studio or citizens who wish to purchase Cuspert's music would have standing to mount such a legal challenge. The argument would basically be that the statute and regulation are overbroad as applied to activity protected by the First Amended. A First Amendment "as applied" challenge leaves the court with discretition to leave the statute and regualtion unchanged, but judicially create an exception. 
Paul Merrell

Homeland Battlefield Act Portion Found Unconstitutional By New York Judge - 0 views

www.huffingtonpost.com/...nconstitutional_n_1522587.html

NDAA military detentions 1st Amendment constitution

shared by Paul Merrell on 17 May 12 - No Cached
  • WASHINGTON -- A day before Congress weighs an amendment to end indefinite military detentions in the U.S., a federal judge Wednesday ruled the law that allows the practice unconstitutional. Saying the measure has "chilling impact on First Amendment rights," U.S. District Judge Katherine Forrest, of New York's Eastern District, found that a group of reporters and activists who brought the lawsuit had no way of knowing whether they could be subjected to it. That makes it an unconstitutional infringement on the First Amendment's free speech right and the Fifth Amendment's right to due process, Forrest said in a written opinion.
  • Reps. Adam Smith (D-Wash.) and Justin Amash (R-Mich.) are offering an amendment on Thursday to the 2013 Defense Authorization Act that would end the law. Amash sent an appeal to fellow lawmakers soon after the ruling, asking them to pass it. "The amendment I’m offering with Rep. Adam Smith is the ONLY amendment that ensures that persons arrested on U.S. soil aren’t detained indefinitely without charge or trial," Amash wrote. "Voting against the Smith-Amash amendment allows the government to retain the power to detain persons, picked up in the U.S., for life, on the suspicion that they 'substantially supported' forces 'associated' with our enemies." "If our constituents haven’t sent a clear enough message, tonight’s ruling surely does: Congress must act now to guarantee the constitutional right to a charge and a trial," Amash wrote.
Paul Merrell

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

theintercept.com/...u-s-is-abusing-secret-warrants

surveillance state Microsoft DoJ litigation 4th-Amendment 1st Amendment gag-orders

shared by Paul Merrell on 16 Apr 16 - No Cached
  • “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.
  • Paul Merrell on 16 Apr 16
     
    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

Frightening People into Silence by Andrew P. Napolitano -- Antiwar.com - 0 views

original.antiwar.com/...chilling-governmental-behavior

surveillance state 1st Amendment chill Obama Holder Napolitano COINTELPRO

shared by Paul Merrell on 18 Jul 14 - No Cached
  • by Andrew P. Napolitano, July 17, 2014 Print This | Share This “Chilling” is the word lawyers use to describe governmental behavior that does not directly interfere with constitutionally protected freedoms, but rather tends to deter folks from exercising them. Classic examples of “chilling” occurred in the 1970s, when FBI agents and U.S. Army soldiers, in business suits with badges displayed or in full uniform, showed up at anti-war rallies and proceeded to photograph and tape record protesters. When an umbrella group of protesters sued the government, the Supreme Court dismissed the case, ruling that the protesters lacked standing – meaning, because they could not show that they were actually harmed, they could not invoke the federal courts for redress. Yet, they were harmed, and the government knew it. Years after he died, longtime FBI boss J. Edgar Hoover was quoted boasting of the success of this program. The harm existed in the pause or second thoughts that protesters gave to their contemplated behavior because they knew the feds would be in their faces – figuratively and literally. The government’s goal, and its limited success, was to deter dissent without actually interfering with it. Even the government recognized that physical interference with and legal prosecutions of pure speech are prohibited by the First Amendment. Eventually, when this was exposed as part of a huge government plot to stifle dissent, known as COINTELPRO, the government stopped doing it.
  • Until now. Now, the government fears the verbal slings and arrows of dissenters, even as the means for promulgating one’s criticisms of the government in general and of President Obama in particular have been refined and enhanced far beyond those available to the critics of the government in the 1970s. So, what has the Obama administration done to stifle, or chill, the words of its detractors? For starters, it has subpoenaed the emails and home telephone records of journalists who have either challenged it or exposed its dark secrets. Among those journalists are James Risen of The New York Times and my colleague and friend James Rosen of Fox News. This is more personal than the NSA spying on everyone, because a subpoena is an announcement that a specific person’s words or effects have been targeted by the government, and that person continues to remain in the government’s crosshairs until it decides to let go.
  • This necessitates hiring legal counsel and paying legal fees. Yet, the targeting of Risen and Rosen was not because the feds alleged that they broke the law – there were no such allegations. Rather, the feds wanted to see their sources and their means of acquiring information. What journalist could perform his work with the feds watching? The reason we have a First Amendment is to assure that no journalist would need to endure that.
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  • And just last week, Attorney General Eric Holder, while in London, opined that much of the criticism of Obama is based on race – meaning that if Obama were fully white, his critics would be silent. This is highly inflammatory, grossly misleading, patently without evidential support and, yet again, chilling. Tagging someone as a racist is the political equivalent of applying paint that won’t come off. Were the Democrats who criticized Attorney General Alberto Gonzales or Secretary of State Condoleezza Rice racists? Is it appropriate for government officials to frighten people into silence by giving them pause before they speak, during which they basically ask themselves whether the criticism they are about to hurl is worth the pain the government will soon inflict in retaliation? The whole purpose of the First Amendment is to permit, encourage and even foment open, wide, robust debate about the policies and personnel of the government. That amendment presumes that individuals – not the government – will decide what language to read and hear. Because of that amendment, the marketplace of ideas – not the government – will determine which criticisms will sink in and sting and which will fall by the wayside and be forgotten.
  • Surely, government officials can use words to defend themselves; in fact, one would hope they would. Yet, when the people fear exercising their expressive liberties because of how the governmental targets they criticize might use the power of the government to stifle them, we are no longer free. Expressing ideas, no matter how bold or brazen, is the personal exercise of a natural right that the government in a free society is powerless to touch, directly or indirectly. Yet, when the government succeeds in diminishing public discourse so that it only contains words and ideas of which the government approves, it will have succeeded in establishing tyranny. This tyranny – if it comes – will not come about overnight. It will begin in baby steps and triumph before we know it. Yet we do know that it already has begun.
Joe La Fleur

DOJ Official Refuses to Affirm 1st Amendment Rights - 1 views

www.westernjournalism.com/to-affirm-1st-amendment-rights

official amendment rights

shared by Joe La Fleur on 29 Jul 12 - No Cached
  • Paul Merrell on 29 Jul 12
     
    Being a retired lawyer myself, I don't put much stock in that bit of questioning. Rep. Franks repeatedly cut off the DoJ lawyer in his attempts to explain why he couldn't answer the question as phrased. And by no stretch of the imagination did that lawyer "Refuse[] to Affirm 1st Amendment Rights." Franks was grandstanding, asking a leading question whose answer depends on context not given in the question. E.g., as in the example the lawyer attempted to give to explain why more context was necessary, "hate" speech directed at someone because of their religion can be criminally actionable under some circumstances. But it was Congress that enacted that law, not the present Administration's Justice Department. I'm all for booting Obama out of office, but not on some pretext like this. There's plenty he is guilty of to work with. This charge ain't one of them.
Paul Merrell

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

firstlook.org/...ders-national-security-letters

surveillance state FBI NSLs litigation 1st Amendment civil-liberties

shared by Paul Merrell on 24 Feb 15 - No Cached
  • 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:
  • 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.
  • ...6 more annotations...
  • 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.
  • 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.
  • 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.”
  • 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.”
  • 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.
Gary Edwards

Senate Democrats Pushed for IRS Tea Party Snooping Before Criticizing It - Brian Walsh ... - 0 views

www.usnews.com/...snooping-before-criticizing-it

IRS IRS-gate

shared by Gary Edwards on 15 May 13 - No Cached
  • Gary Edwards on 15 May 13
     
    Democrats caught red handed pushing the IRS to audit, harass and delay efforts to establish Constitutional Patriot and Jewish Homeland non profit groups.   The Democrats political efforts behind the IRS's blatant violation of these American citizens 4th Amendment Right to organize and assemble dates back to the 2009 Supreme Court decision known as "Citizens United". In "Citizens Untied", the court ruled that corporations are people, and thus are entitled to 1st Amendment Rights.  Including full participation and monetary contributions in political campaigns. this ruling was further confirmed when the Supreme Court overturned a century old Montana Law prohibiting corporate spending in that State's elections.   The "Citizens United" ruling so upset Obama and the Socialist Party that he publicly scolded the Supreme Court justices during a State of the Union address.  The Progressives rightfully feared that corporations would ppour "unregulated independent expenditures" into newly formed Tea Party Patriot based non profits.  Unable to overturn Citizens United, the Dems called on the IRS and a host of other government bureaucracies to block, harass and slow down the funding of their political opposition. this article exposes the same Dem clowns who are now crying foul as the same tyrants who kicked off the IRS led effort to slow down the Tea Party Patriot opposition movement.   How the Jewish Homeland groups got into the IRS gun sights is still a mystery, but one thing is known:  With the election of Obama in 2008, the IRS moved from targeting non profit Muslim Groups as possible terrorist funding organizations, to targeting Tea Party Patriot movements.  Maybe that's also when they took on Jewish Homeland groups?  excerpt: "With Washington gripped by a trio of exploding scandals this week - from Benghazi to government spying on news outlets to thug tactics by the Internal Revenue Service - Senate Democrats seem to be hoping that if they just yell lou
Paul Merrell

FBI Admits It Controlled Tor Servers Behind Mass Malware Attack | Threat Level | Wired.com - 0 views

www.wired.com/...freedom-hosting-fbi

surveillance state FBI Tor NSA

shared by Paul Merrell on 05 Oct 13 - No Cached
  • It wasn’t ever seriously in doubt, but the FBI yesterday acknowledged that it secretly took control of Freedom Hosting last July, days before the servers of the largest provider of ultra-anonymous hosting were found to be serving custom malware designed to identify visitors. Freedom Hosting’s operator, Eric Eoin Marques, had rented the servers from an unnamed commercial hosting provider in France, and paid for them from a bank account in Las Vegas. It’s not clear how the FBI took over the servers in late July, but the bureau was temporarily thwarted when Marques somehow regained access and changed the passwords, briefly locking out the FBI until it gained back control. The new details emerged in local press reports from a Thursday bail hearing in Dublin, Ireland, where Marques, 28, is fighting extradition to America on charges that Freedom Hosting facilitated child pornography on a massive scale. He was denied bail today for the second time since his arrest in July. Freedom Hosting was a provider of turnkey “Tor hidden service” sites — special sites, with addresses ending in .onion, that hide their geographic location behind layers of routing, and can be reached only over the Tor anonymity network. Tor hidden services are used by sites that need to evade surveillance or protect users’ privacy to an extraordinary degree – including human rights groups and journalists. But they also appeal to serious criminal elements, child-pornography traders among them.
  • The apparent FBI-malware attack was first noticed on August 4, when all of the hidden service sites hosted by Freedom Hosting began displaying a “Down for Maintenance” message. That included at least some lawful websites, such as the secure email provider TorMail. Some visitors looking at the source code of the maintenance page realized that it included a hidden iframe tag that loaded a mysterious clump of Javascript code from a Verizon Business internet address. By midday, the code was being circulated and dissected all over the net. Mozilla confirmed the code exploited a critical memory management vulnerability in Firefox that was publicly reported on June 25, and is fixed in the latest version of the browser. Though many older revisions of Firefox were vulnerable to that bug, the malware only targeted Firefox 17 ESR, the version of Firefox that forms the basis of the Tor Browser Bundle – the easiest, most user-friendly package for using the Tor anonymity network. That made it clear early on that the attack was focused specifically on de-anonymizing Tor users. Tor Browser Bundle users who installed or manually updated after June 26 were safe from the exploit, according to the Tor Project’s security advisory on the hack.
  • On August 4, all the sites hosted by Freedom Hosting — some with no connection to child porn — began serving an error message with hidden code embedded in the page. Security researchers dissected the code and found it exploited a security hole in Firefox to identify users of the Tor Browser Bundle, reporting back to a mysterious server in Northern Virginia. The FBI was the obvious suspect, but declined to comment on the incident. The FBI also didn’t respond to inquiries from WIRED today. But FBI Supervisory Special Agent J. Brooke Donahue was more forthcoming when he appeared in the Irish court yesterday to bolster the case for keeping Marques behind bars, according to local press reports. Among the many arguments Donahue and an Irish police inspector offered was that Marques might reestablish contact with co-conspirators, and further complicate the FBI probe. In addition to the wrestling match over Freedom Hosting’s servers, Marques allegedly dove for his laptop when the police raided him, in an effort to shut it down.
  • ...2 more annotations...
  • Perhaps the strongest evidence that the attack was a law enforcement or intelligence operation was the limited functionality of the malware. The heart of the malicious Javascript was a tiny Windows executable hidden in a variable named “Magneto.” A traditional virus would use that executable to download and install a full-featured backdoor, so the hacker could come in later and steal passwords, enlist the computer in a DDoS botnet, and generally do all the other nasty things that happen to a hacked Windows box. But the Magneto code didn’t download anything. It looked up the victim’s MAC address — a unique hardware identifier for the computer’s network or Wi-Fi card — and the victim’s Windows hostname. Then it sent it to a server in Northern Virginia server, bypassing Tor, to expose the user’s real IP address, coding the transmission as a standard HTTP web request.
  • The official IP allocation records maintained by the American Registry for Internet Numbers show the two Magneto-related IP addresses were part of a ghost block of eight addresses that have no organization listed. Those addresses trace no further than the Verizon Business data center in Ashburn, Virginia, 20 miles northwest of the Capital Beltway. The code’s behavior, and the command-and-control server’s Virginia placement, is also consistent with what’s known about the FBI’s “computer and internet protocol address verifier,” or CIPAV, the law enforcement spyware first reported by WIRED in 2007. Court documents and FBI files released under the FOIA have described the CIPAV as software the FBI can deliver through a browser exploit to gather information from the target’s machine and send it to an FBI server in Virginia. The FBI has been using the CIPAV since 2002 against hackers, online sexual predators, extortionists, and others, primarily to identify suspects who are disguising their location using proxy servers or anonymity services, like Tor. Prior to the Freedom Hosting attack, the code had been used sparingly, which kept it from leaking out and being analyzed.
  • Paul Merrell on 05 Oct 13
     
    Taking down the entire Freedom Hosting service because some content was kiddie porn is reminiscent of the U.S. government's proxy take-down of Mega-Upload in New Zealand. Such actions that disable legitimate users or deny access to their data are in my opinion violative of the 1st and 4th Amendments.  It suppresses the Freedom of Speech and seizes more than the 4th Amendment allows.  That our own government would use malware for surveillance purposes under any circumstance is just plain chilling.
Gary Edwards

Feds confiscate investigative reporter's confidential files during raid | The Daily Caller - 3 views

dailycaller.com/...confidential-files-during-raid

Audrey-Hudson Whistleblower-Protection-Act

shared by Gary Edwards on 26 Oct 13 - No Cached
  • A veteran Washington D.C. investigative journalist says the Department of Homeland Security confiscated a stack of her confidential files during a raid of her home in August — leading her to fear that a number of her sources inside the federal government have now been exposed. In an interview with The Daily Caller, journalist Audrey Hudson revealed that the Department of Homeland Security and Maryland State Police were involved in a predawn raid of her Shady Side, Md. home on Aug. 6. Hudson is a former Washington Times reporter and current freelance reporter. A search warrant obtained by TheDC indicates that the August raid allowed law enforcement to search for firearms inside her home.
  • But without Hudson’s knowledge, the agents also confiscated a batch of documents that contained information about sources inside the Department of Homeland Security and the Transportation Security Administration, she said. Outraged over the seizure, Hudson is now speaking out. She said no subpoena for the notes was presented during the raid and argues the confiscation was outside of the search warrant’s parameter. “They took my notes without my knowledge and without legal authority to do so,” Hudson said this week. “The search warrant they presented said nothing about walking out of here with a single sheet of paper.”
  • After the search began, Hudson said she was asked by an investigator with the Coast Guard Investigative Service if she was the same Audrey Hudson who had written a series of critical stories about air marshals for The Washington Times over the last decade. The Coast Guard operates under the Department of Homeland Security.
  • Paul Merrell on 26 Oct 13
     
    If reality is as stated, the reporter has a pretty strong civil rights case against the government officials who knowingly participated in the theft and retention of the reporter's notes, two distinct conspiracies. Under the 4th Amendment, officers executing a search and seizure warrant may lawfully seize the items particularly described in the warrant and any other evidence of crime that is in plain view during the search. It's a big push of credibility to argue that reading documents stored in a bag in search for a gun falls within the "plain view" doctrine. The officer could instead just reach his hand into the bag and feel around for a gun. Quite a few extra steps involved in removing the documents and reading them simply to determine whether the bag contains a gun. Add in the facts that: [i] the supposed recognition of government documents argument does not explain why the officers seized personal handwritten notes too; and [ii] the evidence that the officer who discovered the docs had learned that the reporter was one who had called the conduct of his agency into question, and it comes out smelling a lot more like an attempt to discover the reporters' sources than a legitimate search for guns when the bag was searched.   Only one side heard from so far, of course. But this sounds more like low-level government officials who were ignorant of their legal obligations than a White House-driven scandal. But I wouldn't want to be the government lawyer who authorized the retention of the seized notes and other documents. They should have been returned without retaining copies the instant the lawyer learned of the circumstances of their seizure. There's not only a 4th Amendment liberty interest but also a 1st Amendment freecdom to communicate anonymously right protecting those documents and notes. 
  • ...1 more comment...
  • Gary Edwards on 26 Oct 13
     
    I listened to an interview with Audrey Hudson last night. It seems to me the key fact is in this clip; "But without Hudson's knowledge, the agents also confiscated a batch of documents that contained information about sources inside the Department of Homeland Security and the Transportation Security Administration, she said." Audrey had written a series of articles describing how the Homeland Security and Transportation agency had been lying about air marshalls and the post 911 program to secure passenger flights. The documents that were stolen listed her sources - the whistle blowers inside the Homeland Security administration who leaked information about the lies and the many problems with the program that the Obama administration was covering up. This sounds to me like another example of Obama hunting down and persecuting whistleblowers. A direct violation of the 1989 - 2007 Whistleblower Protection Act. Not surprisingly, Ms Hudson had not tried to contact any of her whistleblowing sources for fear that the NSA would be watching and that this persecution would happen. Interestingly, the warrant was to seize a "potato launcher". No kidding! It seems Ms. Hudson's husband had, at one time been a licensed arms dealer. He lost that license having sold a gun with faulty paperwork. This event had occurred years earlier, and Mr. Hudson had long since moved on and was currently working for the Coast Guard as an outside contractor/consultant. So they seized the toy "potato launcher", as described in the warrant. But they also ransacked the home looking for the key documents that listed Ms Hudson's inside Homeland Security sources behind her air marshal scandal articles. These documents were the only items seized - other than the "potato launcher" that was the only item listed in the warrant. Seems we've been here before. From wikipedia, the story of Friedrich Gustav Emil Martin Niemöller: ........................... Arrested on 1 July 1937, N
  • Gary Edwards on 26 Oct 13
     
    "But without Hudson's knowledge, the agents also confiscated a batch of documents that contained information about sources inside the Department of Homeland Security and the Transportation Security Administration, she said."
  • Paul Merrell on 26 Oct 13
     
    What troubles me the most about this event, assuming the truth of what's reported, is how well known the limitations on execution of a search warrant are within the law enforcement community. If it happened as described, it seems very unlikely that the officer who grabbed the documents did not know he was violating the 4th Amendment. Ditto for the lawyer or other official(s) who learned of what went down shortly thereafter, but kept the documents anyway. There's an arrogance that goes with government and corporate officials who don't have to personally pay damage awards. With no personal monetary liability (in reality, since the government or corporation picks up the tab), it becomes a matter of personal ethics and whether the misbehavior will anger or please the boss. If the ethics are weak, that becomes a pretty simple choice.
Paul Merrell

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

verdict.justia.com/...famation-protection-journalist

bloggers journalists 1st Amendment constitutional law

shared by Paul Merrell on 05 Feb 14 - No Cached
  • 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 thatthe 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

How Covert Agents Infiltrate the Internet to Manipulate, Deceive, and Destroy Reputatio... - 0 views

firstlook.org/...jtrig-manipulation

surveillance state NSA GCHQ 1st Amendment NSA-methods destroying-reputations

shared by Paul Merrell on 25 Feb 14 - No Cached
  • One of the many pressing stories that remains to be told from the Snowden archive is how western intelligence agencies are attempting to manipulate and control online discourse with extreme tactics of deception and reputation-destruction. It’s time to tell a chunk of that story, complete with the relevant documents. Over the last several weeks, I worked with NBC News to publish a series of articles about “dirty trick” tactics used by GCHQ’s previously secret unit, JTRIG (Joint Threat Research Intelligence Group). These were based on four classified GCHQ documents presented to the NSA and the other three partners in the English-speaking “Five Eyes” alliance. Today, we at the Intercept are publishing another new JTRIG document, in full, entitled “The Art of Deception: Training for Online Covert Operations.” By publishing these stories one by one, our NBC reporting highlighted some of the key, discrete revelations: the monitoring of YouTube and Blogger, the targeting of Anonymous with the very same DDoS attacks they accuse “hacktivists” of using, the use of “honey traps” (luring people into compromising situations using sex) and destructive viruses. But, here, I want to focus and elaborate on the overarching point revealed by all of these documents: namely, that these agencies are attempting to control, infiltrate, manipulate, and warp online discourse, and in doing so, are compromising the integrity of the internet itself.
  • Paul Merrell on 25 Feb 14
     
    Government retaliation for exercise of First Amendment rights by covert destruction of reputations.  
Paul Merrell

American Writers are Self-Censoring to Avoid NSA Scrutiny (McCauley) | Informed Comment - 0 views

www.juancole.com/...nsoring-scrutiny-mccauley.html

surveillance state NSA media-surveillance self-censorship 1st Amendment chill

shared by Paul Merrell on 20 Nov 13 - No Cached
  • Recent disclosures of the NSA's widespread dragnet program coupled with its frequent targeting of journalists are having a 'chilling effect' on American writers, stifling their freedom of expression at great detriment to society, says a new report Chilling Effects: NSA Surveillance Drives U.S. Writers to Self Censor.
  • Published Tuesday by the group PEN America—an organization of writers dedicated to advancing literature and promoting free speech for writers around the world—surveyed 520 American writers and found they are "not only overwhelmingly worried about government surveillance, but are engaging in self-censorship as a result."
  • Paul Merrell on 20 Nov 13
     
    Lots more detail about the poll in the article, giving stark evidence that NSA surveillance is causing journalists and other authors to self-censor on topics likely to result in NSA targeting, as well as avoiding email and telephone investigation of touchy subjects.  One might reasonably also cite this poll as evidence that journalists and non-fiction authors do not trust U.S. government to respect their First Amendment rights of expression and anonymous communication.  
Paul Merrell

Partnership between Facebook and police could make planning protests impossible - RT USA - 0 views

rt.com/...acebook-police-social-lipp-743

surveillance state Facebook police 1st Amendment constitutional law

shared by Paul Merrell on 26 Oct 13 - No Cached
  • A partnership between police departments and social media sites discussed at a convention in Philadelphia this week could allow law enforcement to keep anything deemed criminal off the Internet—and even stop people from organizing protests. A high-ranking official from the Chicago Police Department told attendees at a law enforcement conference on Monday that his agency has been working with a security chief at Facebook to block certain users from the site “if it is determined they have posted what is deemed criminal content,” reports Kenneth Lipp, an independent journalist who attended the lecture. Lipp reported throughout the week from the International Association of Chiefs of Police conference, and now says that a speaker during one of the presentations suggested that a relationship exists between law enforcement and social media that that could be considered a form of censorship. According to Lipp, the unnamed CPD officer said specifically that his agency was working with Facebook to block users’ by their individual account, IP address or device, such as a cell phone or computer.
  • Paul Merrell on 26 Oct 13
     
    Here's a First Amendment conspiracy civil rights case waiting to happen. Prior restraints on speech are a very big constitutional no-no. When private actors such as Facebook staff conspire with government officials to violate federal rights, they are just as susceptible to a civil rights lawsuit as the government officials are. Query, does Mark Zuckerberg now know how to hire and effectively use competent lawyers? 
Paul Merrell

Adel Daoud's lawyer claims Hillside teen caught in 'fake war on terror' contrived by U.... - 0 views

abclocal.go.com/...story

surveillance state FBI NSA 4th Amendment 1st Amendment entrapment Daoud

shared by Paul Merrell on 29 Nov 13 - No Cached
  • (CHICAGO) (WLS) -- Lawyers for a west suburban teenager charged with a downtown bomb plot say he was caught in a "fake war on terror" contrived by U.S. spy agencies. Each week it seems as though there is a new salvo of accusations by the legal team defending Hillside 19-year-old Adel Daoud. On Tuesday, a court filing by Daoud's attorneys characterizes U.S. spy agencies as outlaw arms of the government that snagged the west suburban teenager in a dummied-up bomb plot. The nation's intelligence gathering agencies, they believe, are operating in what amounts to a fourth, runaway, branch of government. Daoud was arrested a little more than a year ago, according to authorities planning to detonate a car bomb at this downtown intersection that would take out a popular nearby bar--if it was real. But the so-called plot was a sting operation and the bomb operatives worked for the FBI.
  • "Look, he's a young kid," said Daoud attorney Thomas Durkin. "He just graduated from high school." Durkin, from the beginning, has cried foul about the government investigation and tactics. In the sharply-critical Daoud surveillance motion filed Tuesday, Durkin states that the government has concocted a "fake choice between national security and civil rights, not unlike the fake war being conducted in our name against terror." Durkin, a former assistant U.S. Attorney in Chicago, states that: "The usually reliable representations of the U.S. Attorney's office can no longer be trusted. . .because the intelligence agencies. . . simply do not inform the local prosecutors of all material information." "The spy agencies," Durkin writes, "are as fearful of the prosecutors as they are defense counsel". . .and "just as easily compromised."
  • During the investigation, FBI agents secretly recorded phone conversations at the suspect's home, and elsewhere, and they monitored internet communications. Prosecutors have argued that evidence must be held in secret, from both the public and the defendant-- and so far, the courts have agreed. Lawyers for the 19-year old man from west suburban Chicago are challenging the initial legal grounds permitting authorities to monitor his communications. They contend Daoud may have been targeted by intelligence agencies for viewpoints expressed on the internet. The accused teenage jihadist remains in federal custody without bail, where he has been for 14 months. Authorities have said that Daoud made statements he intended to kill 100 people and injure 300. As his attorney continues a vigorous challenge of government tools and tactics, prosecutors declined to comment to the I-Team.
  • Paul Merrell on 29 Nov 13
     
    This is the case that Sen. Diane Feinstein bragged about having been broken by NSA surveillance. But the government still clings to its position that neither the defense nor the public should be allowed to see the NSA intelligence. The judge in the case originally sided with the government. See order at https://archive.org/stream/781913-daoud-motion-denied#page/n0/mode/1up It bears reminding that the Justice Dept. had told the Supreme Court that such materials would be available for criminal defendants to challenge in persuading the Court that a lawsuit brought by Amnesty International would not be the only avenue to challenge NSA surveillance. The Court repeated that promise in its opinion dismissing the Amnesty International case. But the issue is still alive. Daod is still in jail pending trial. And I'll hazard a guess that his defense just acquired new wheels with yesterday's disclosure of NSA surveillance being used to ruin the reputations of non-terrorists because of the content of their speech.  
Paul Merrell

Federal Judge Finds National Security Letters Unconstitutional, Bans Them | Threat Leve... - 0 views

www.wired.com/...nsl-found-unconstitutional

surveillance state NLS gag orders 1st Amendment constitutional law

shared by Paul Merrell on 16 Mar 13 - No Cached
  • Ultra-secret national security letters that come with a gag order on the recipient are an unconstitutional impingement on free speech, a federal judge in California ruled in a decision released Friday. U.S. District Judge Susan Illston ordered the government to stop issuing so-called NSLs across the board, in a stunning defeat for the Obama administration’s surveillance practices. She also ordered the government to cease enforcing the gag provision in any other cases. However, she stayed her order for 90 days to give the government a chance to appeal to the Ninth Circuit Court of Appeals.
  • “We are very pleased that the Court recognized the fatal constitutional shortcomings of the NSL statute,” said Matt Zimmerman, senior staff attorney for the Electronic Frontier Foundation, which filed a challenge to NSLs on behalf of an unknown telecom that received an NSL in 2011. “The government’s gags have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience.” The telecommunications company received the ultra-secret demand letter in 2011 from the FBI seeking information about a customer or customers. The company took the extraordinary and rare step of challenging the underlying authority of the National Security Letter, as well as the legitimacy of the gag order that came with it.
  • Both challenges are allowed under a federal law that governs NSLs, a power greatly expanded under the Patriot Act that allows the government to get detailed information on Americans’ finances and communications without oversight from a judge. The FBI has issued hundreds of thousands of NSLs over the years and has been reprimanded for abusing them — though almost none of the requests have been challenged by the recipients. After the telecom challenged the NSL, the Justice Department took its own extraordinary measure and sued the company, arguing in court documents that the company was violating the law by challenging its authority. The move stunned EFF at the time.
  • ...2 more annotations...
  • Illston found that although the government made a strong argument for prohibiting the recipients of NSLs from disclosing to the target of an investigation or the public the specific information being sought by an NSL, the government did not provide compelling argument that the mere fact of disclosing that an NSL was received harmed national security interests. A blanket prohibition on disclosure, she found, was overly broad and “creates too large a danger that speech is being unnecessarily restricted.” She noted that 97 percent of the more than 200,000 NSLs that have been issued by the government were issued with nondisclosure orders.
  • NSLs are written demands from the FBI that compel internet service providers, credit companies, financial institutions and others to hand over confidential records about their customers, such as subscriber information, phone numbers and e-mail addresses, websites visited and more. NSLs are a powerful tool because they do not require court approval, and they come with a built-in gag order, preventing recipients from disclosing to anyone that they have even received an NSL. An FBI agent looking into a possible anti-terrorism case can self-issue an NSL to a credit bureau, ISP or phone company with only the sign-off of the Special Agent in Charge of their office. The FBI has to merely assert that the information is “relevant” to an investigation into international terrorism or clandestine intelligence activities.
Paul Merrell

John Kerry peace plan "to recognise Israel as a Jewish state" - Telegraph - 0 views

www.telegraph.co.uk/...-Israel-as-a-Jewish-state.html

war & peace Israel Palestine Kerry negotiations 1st Amendment

shared by Paul Merrell on 14 Feb 14 - No Cached
  • An outline Middle East peace agreement being drawn up by John Kerry will propose recognising Israel as a Jewish state, according to a leaked report, in a development that represents a major coup for the Israeli leadership but which risks an outright Palestinian rejection. Mr Kerry, the US secretary of state, has overridden vocal Palestinian objections in stipulating that Israel's Jewish character should be an explicit part of a final status accord, the conservative Israeli newspaper, Maariv reported.
  • Paul Merrell on 14 Feb 14
     
    What exactly is it that John Kerry does not understand about "Congress shall make no law respecting an establishment of religion[?]" See e.g., Board of Education of Kiryas Joel Village School District v. Grumet,  512 U.S. 687 (1994) (establishment of a Satmar Hasidim Jewish school district violated the First Amendment's Establishment Clause). http://supreme.justia.com/us/512/687/case.html. Notice that the Court there faced a school district that was in effect a Jewish school district, not a school district that had an ostensibly religious purpose. Does Kerry believe that the U.S. government may do abroad what the Constitution squarely prohibits, creating a Jewish State? And where does that leave the approximate 20 per cent of the Israel population that is not Jewish, not to mention the right of return to their property secured by the Fourth Geneva Convention for those Palestinians (and their descendants) driven out of what is now Israel in the late 1940s? The Convention provides, for example: "Art. 47. Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, *nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power,* nor by any annexation by the latter of the whole or part of the occupied territory." And -- "Art. 49. Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive."
Paul Merrell

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

epic.org/...prevails-in-foia-case-abo.html

internet-kill-switch FOIA EPIC DHS litigation 1st Amendment

shared by Paul Merrell on 17 Nov 13 - No Cached
  • Paul Merrell on 17 Nov 13
     
    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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