Techdirt. Stories filed under "entrapment"

DOJ Responds To Megaupload's Accusations Of Misleading The Court... By Misleading The Court

Mike Masnick — Tue, 15 Jan 2013 04:44:44 PST

We've discussed a few times now how Megaupload is arguing that key elements in the warrant used to criminally charge the company and its principles were misleading to the court. In particular, Megaupload has pointed out that part of the "evidence" for criminal conspiracy was that Megaupload knew about infringing activity on the site, but chose not to do anything about it. However, as Megaupload made clear in its filing, the reason it knew about it was because it was informed that the content was subject to a federal investigation, and that the "evidence" needed to be preserved. As we detailed in our last post on the subject, the DOJ went straight to Megaupload's hosting partner, Carpathia, to let them know about this. Carpathia pleaded with the DOJ to talk directly to Megaupload (after receiving assurances that Megaupload was not the target), but the DOJ rejected that request.

However, since this was evidence of potentially criminal activity, Carpathia told Megaupload about it, implying that the DOJ was making it clear that Megaupload should not delete the files.

Notably, the Government avoided communicating with Megaupload directly, instead deputizing Carpathia to do so on its behalf. (See June 25, 2010 email from Phil Hedlund to Mathias Ortmann and Kim Dotcom, Ex. 1 ("Please know that we attempted to convince the Government to work directly with Mega on this matter, but given the complex jurisdictional issues, they have been unwilling").) Far from warning Megaupload that the Government considered it to be part of a worldwide criminal organization, which the Government even at the time was terming the "Mega Conspiracy," the Government, through its anointed agent Carpathia, represented to Megaupload that "[w]e have no reason to believe the [sic] MegaUpload is the target of the investigation."

Megaupload cooperated with the Government and voluntarily arranged with Carpathia to supply the Government with the files identified in the sealed warrant. In accordance with the Government's express admonitions--as conveyed to Megaupload through the sealing order and Carpathia's instructions--Megaupload avoided signaling that anything was afoot or otherwise compromising the investigation, preserving the files in their original condition without alerting users or the public that anything had changed. At no time did the Government or Carpathia indicate that Megaupload could or should remove the files identified in the warrant from its cloud storage platform without compromising the stated secrecy of the investigation, much less did they suggest that Megaupload was legally obliged to do so lest it be complicit in an ongoing criminal conspiracy.

The DOJ has now responded to these claims, and it's done so in its typically misleading fashion. For example, it insists that Megaupload is misleading in its own filing, because the DOJ never directly spoke to Megaupload. They leave out the whole part about the DOJ talking to Carpathia, who had to talk to Megaupload if it wanted to preserve the evidence in question without risk of it being deleted. But, no, in the DOJ's version, this is all just Megaupload fantasy talk.

Megaupload's pleading and the search warrant materials at issue disproves the allegation that the government misled the court as part of a conspiracy to entrap Megaupload. For instance, Megaupload alleges that the government "affirmatively [led]" Megaupload to retain certain files on its servers.... Yet Megaupload does not cite a single communication between the government and Megaupload or a single instruction from any member of the government to Megaupload; there are none.

Notice the lack of any mention of the Carpathia communications between the DOJ and Carpathia, or between Carpathia and Megaupload. That seems like relevant info that the DOJ conveniently just skips right over.

Is this really the best argument that the DOJ can put forth? The filing also does highlight that the DOJ made other arguments against Megaupload in its filings -- which is true -- but it doesn't mean that the questionable aspects concerning some of the key claims should simply be ignored, as the DOJ would prefer.

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FBI Continues To Foil Its Own Devised Terrorist Plots

Timothy Geigner — Mon, 17 Sep 2012 12:30:00 PDT

It seems there's a new pattern showing itself every time I read a news report in which the FBI proudly announces it foiled a terrorist plot. That pattern goes something like this: hear that a huge explosion was averted and lives were saved, find out the plotter was an American citizen, find out he was under investigation by the FBI for several years, and then finally find out that it was the FBI that egged on the suspect and built his "bomb" for him. In other words, the only way these things could become less impressive is if the FBI actually decided to quit finding these loner folks to urge into violence and just built their own physical straw man to parade in front of the cameras.

This whole game of pretend law enforcement showed up at my doorstep this weekend, when the FBI announced yet another arrest of a potential terrorist, this time an 18 year old suburbanite whom the FBI (you guessed it) encouraged to try to bomb a downtown bar in Chicago.

Adel Daoud, 18, was arrested following a months-long FBI undercover investigation. He was taken into custody after he parked a Jeep Cherokee in front of the bar Friday night and walked into a nearby alley where he tried to detonate the device, court documents allege.

The bomb, which was inert and had been constructed by FBI technicians, didn't explode, according to federal authorities.

Oddly, the article notes that Daoud allegedly gave the FBI more than two dozen high profile Chicago targets to 'splode, but decided eventually on this unnamed bar instead, perhaps because they had, like, totally taken his fake ID that one time. Actually, I just made that up because I can't think of a single reason why a supposed terrorist would settle on a drinkery as their target.

Now, it is true that Daoud professed his wish to participate in jihad. It is true that he attempted to set off this pseudo bomb. He does indeed sound like a disturbed kid that needs to be dealt with in some fashion. But would he have participated in any of this without the urging of the FBI?

Perhaps more importantly, is foiling their own plots the best use of law enforcement in Chicago, a city that appears to be engaged in a concerted effort to have the most murders ever in a calendar year?

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Yet Another Of The FBI's Own Terrorist Plots... Involves A Group Of Senior Citizens

Mike Masnick — Wed, 6 Jun 2012 08:29:00 PDT

The latest Radiolab "shorts" episode, entitled Grumpy Old Terrorists, seems like a bit of a departure in subject matter for that program -- but fits right in with something we've been talking a lot about lately. Over the past few years, we've noticed the rather disturbing trend in how the FBI keeps publicly celebrating stories about stopping terrorist plots -- but in almost every case the details show that it was actually just stopping its own terrorist plots that it feeds to hapless individuals, often nudging them and pushing them down the road to "become" terrorists, despite commonly displaying little to no aptitude for actual terrorism.

In the last few weeks, the mainstream press has started to notice this as well, with stories about it appearing in both the NY Times and Rolling Stone. However, the Radiolab episode highlights a similar, but slightly different story, that was actually covered in great detail in an article in Esquire a few months back, entitled Waffle House Terrorists -- which includes the mugshots of the four "terrorists."

The youngest one of that bunch is 65-years old. The oldest is 73. As the Radiolab episode and the Esquire piece detail, while these guys do seem hateful, they also seemed absolutely unable to do anything... until an "FBI informant" joined their pack and pushed and prodded them along, introducing them to the "contacts" to get weapons and even providing "the money" to buy said weapons. The Esquire article goes into great detail about the "informant" and his rather questionable legal history (he first contacted the FBI while in jail for molesting his wife's daughter from a previous marriage).

On Radiolab, they play the audiotapes the guy made of the plotting -- and there's obviously some crazy stuff being said. But, as they look deeper into the role of the informant, the Radiolab hosts conclude the episode by noting that the whole situation doesn't really make them feel any safer. Yes, these old guys were hateful and helped join in this plan to cause lots of death and destruction. But, so much much of the plot and the participation of these guys really does seem driven by the "informant," who does not seem like the most credible of guys. And it's this exact scenario that we keep seeing over and over again. It may not reach the level of entrapment, and it may put some people really ignorant and crazy people in jail -- but is this really the best use of the FBI's time and efforts? Creating bogus "terrorist" plots involving people who had no real means to actually do anything?

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Documentary About RNC 'Bomb Plot' Raises Serious Questions About How Feds Prosecute

Mike Masnick — Wed, 16 Mar 2011 16:10:00 PDT

About a year and a half ago, I heard the somewhat disturbing This American Life episode about how a well-known activist named Brandon Darby, who had made a name for himself during the aftermath of Hurricane Katrina, had become a government informant to turn over two young men who the government claimed were domestic terrorists, intent on bombing the Republican National Convention. It was an interesting story, but I didn't follow it too closely over the past 18 months. However, at SXSW I saw that there was going to be a screening of the new documentary Better This World, which was about that same story, and decided to check it out. There has been some criticism of the documentary as being "one-sided," but I actually felt it does a pretty good job of portraying the highly complex and nuanced issues at play in the case, but your viewpoint may differ depending on a variety of factors. If you're unfamiliar with it, two guys -- David McKay and Bradley Crowder -- were arrested while demonstrating against the Republican National Convention, and it was later determined that the two had created molotov cocktails back where they were staying.

There is no denying the two guys made the bombs, and that's extremely troubling. The big question in the case really became whether or not they were entrapped. Specifically, the question was whether or not Brandon Darby, in his role as an informant "encouraged" McKay and Crowder to make the bombs. I'm not going to argue the specific facts of the case, which many people feel passionate about on both sides of the issue. There's simply no way to suggest that the two men were "innocent" in their actions. No matter how much someone encourages (if, indeed, that's what happened here -- and it's disputed) you to do something, you still have to take responsibility for your own actions -- especially when it reaches the point of building bombs.

That said, the documentary really highlights the ridiculous nature of government prosecutions in cases such as this. In the last few months, we've seen multiple stories, that have a familiar ring to them, involving the FBI busting up "bomb plots" that appear as if they would not have existed if the FBI had not become involved. In other words, multiple cases where it appears that the FBI found people who would have had no capability to actually do any damage, and then were enabled by the FBI or partners to put those people in a position where they could be arrested for preparing to do "acts" that they otherwise would not have been able to do. Is that entrapment? It certainly comes close to the borderline.

The part of the documentary that I found to be most powerful and disturbing, was how the government agents -- both the federal prosecutor and the FBI agents -- almost seemed to gleefully abuse their power to pressure the two arrested individuals to confess to things that both insisted were not true. It certainly raises serious questions about the upcoming prosecutions and/or plea bargains in these other cases. It appears that the feds are not at all interested in determining the truth, but just in getting high profile convictions they can use to claim "wins" against terrorism. The movie is both disturbing and powerful in highlighting just what little chance anyone has to push back against the government if they believe they've been brought up on charges unfairly (again, whether or not the charges really were unfair is a separate question -- but either way, these two had no real chance to get their side heard, and were pressured into corners that left them little choice in how to respond to government pressure). It's a troubling movie for those who would like to believe that the trial system is designed to be fair and get at the truth behind a situation.

In somewhat related news, just days before the film was screened, Brendan Darby (who was the only major player who did not participate in the film, but appears in some older videos that the filmmakers got from other sources) sued the NY Times for defamation, for claiming in an article that he "encouraged" the two men to make their bombs. This question, of Darby's exact role, was clearly a key question in the movie, and also a key point in the plea bargains offered by the government (i.e., in signing the plea bargains, they had to admit that Darby had not encouraged them). Of course, this new lawsuit raises some interesting possibilities, since the NY Times could potentially argue that it's not defamation because it's "true," though they'd have to actually prove that (which could be quite difficult).

Either way, the documentary is worth viewing, especially if you want some insight into the way the government handles prosecutions such as these, and if you'd like to believe in the idea of a fair trial. It also provides much greater insight into why many other countries do not allow "plea bargain" deals, and even find them morally questionable. The opportunity for abuse seems very real, even in cases where people may be guilty.

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Response To Righthaven Suit Claims That Las Vegas Review Journal Engaged In Entrapment

Mike Masnick — Wed, 25 Aug 2010 15:21:47 PDT

We recently noted that one of the sites sued by Righthaven, the company that buys copyrights from the Las Vegas Review Journal and sues websites that repost parts of its stories, had claimed that the LVRJ gave an implicit license by specifically encouraging people to "share" each of their articles, with quicklinks to 19 different services. It appears that another defendant is taking that argument a step further, and suggesting the LVRJ is engaged in entrapment with these lawsuits after encouraging people to share their content:

"Even if a defendant was to republish an article from the LVRJ.com website directly, he is not only within his rights to do so, but all users of LVRJ.com are encouraged to do just that. The LVRJ.com website offers and invites its users to 'Save and Share' all of its articles no less than 19 times per article. In addition, the LVRJ.com website encourages and invites its users to 'Email This,' 'Save This,' 'Print This' and subscribe to its 'RSS Feeds.' This not only puts the users of LVRJ.com in a quagmire, but it is the opinion of the defendant that LVRJ.com is guilty of entrapment, or at least setting up the users of LVRJ.com for a potential lawsuit. While the LVRJ.com encourages and invites its users to 'Share and Save' articles a total of 23 times per article, LVRJ.com will file a frivolous copyright infringement lawsuit against its users, if they follow LVRJ's directions and invitations to 'Share and Save' articles published on the website."

Legally, this sounds like a bit of a stretch, but it is quite fascinating to see the range of defenses that sites are coming up with to fight back against Righthaven.

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