Techdirt. Stories filed under "feds"

Court: Feds Can Spy On Americans Without Warrants With No Legal Repurcussions

Mike Masnick — Thu, 9 Aug 2012 14:10:09 PDT

We've followed the Al-Haramain case against the US government for a while through all of its ridiculousness. This was the challenge to the government over warrantless wiretapping, which went through crazy twists and turns, because information on the wiretapping was deemed classified -- even though it was published by reporters. The only reason the case exists in the first place is that the government accidentally leaked a document that proved that such wiretapping happened. Earlier cases to challenge the warrantless wiretapping in general failed on the grounds that the people suing had no standing since they couldn't prove that they'd been spied upon without a warrant (and if this sounds like something Joseph Heller would write about, you've got the right idea).

Eventually, the court actually ruled that the feds violated wiretapping laws, but then there were questions of what the court could actually do about it. It turned into a wrist slap for the government, with it being ordered to pay $20,400 to each of the two lawyers who represented Al-Haramain.

However, earlier this week, that got overturned. The appeals court has basically said that even though Congress passed a law that said the feds could not eavesdrop on Americans without a warrant, it didn't waive sovereign immunity rights for the government, which lets the government basically wave away any lawsuits. And thus, the government can ignore wiretapping lawsuits -- even in the one and only case where there's clear evidence of it violating the law. Yeah.

Think about that one for a second.

And then... realize it gets worse. That's because in a different ruling, by the same court, a few months ago, the court said that someone couldn't sue the telcos for helping the government warrantlessly wiretap Americans, in part because they could still sue the government. Yet now they're saying that you can't actually sue the government either (once again, paging Joseph Heller).

The court tries to get around this by suggesting that you might be able to sue individuals within the government (though it then goes on to reject such an attempt in this case) or to recover actual monetary damages, if you can prove that such damage occurred. But "distress" apparently doesn't qualify since there's no monetary issue there. So, as long as the government spies on you illegally (and everyone seems to admit that it's illegal) without doing anything with that info that is causing you monetary damages, even if you find out about it, you probably can't do anything about it.

Yeah. That doesn't seem right.

The court itself admits that this result is "anomalous and even unfair," and says that's really Congress' problem because of the way it drafted the statute. Either way, the end result seems pretty crazy, and gives the federal government wide ability to spy on people at will, even as the law says they can't. This is a situation that Congress now needs to fix, though it almost certainly will not do so.

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Feds Still Trying To Abuse Trademark Law (?!?) To Stop Motorcycle Gang

Mike Masnick — Thu, 30 Jun 2011 07:29:23 PDT

Nearly three years ago, we wrote about an absolutely ridiculous plan by the US government to try to deal with a motorcycle gang. Beyond just arresting approximately 80 members of the Mongols motorcycle gang around the country and charging them with a variety of criminal charges including murder, robbery, racketeering, extortion, money laundering, gun trafficking and drug dealing... the US government also decided it wanted to seize the trademark of the gang, and then use that to try to stop the gang. At the time, they claimed this would allow them to simply take jackets off of motorcycle riders by claiming trademark infringement. Of course, that's not (at all) how trademark law works.

I had assumed (incorrectly, it appears) that this issue had gone away, but Dave P. alerts us to the news that three years later, the fight over who gets to own the logo is still ongoing. Apparently, while a judge issued an injunction against the gang using the logo, things went further last year, when the US government tried to officially forfeit the logo. While a judge initially agreed, he reversed his original ruling, after remaining members of the Mongols claimed that they collectively owned the logo, and the government couldn't just seize it. The government, in turn, claims that the trademark is actually held by just one guy, who has already pleaded guilty to various charges.

Of course, I still can't fathom why the government thinks holding such a trademark is useful. It's not going to stop gang members. It wouldn't take much effort to find a new logo, and the government likely wouldn't win if it actually dared to try to make use of the trademark.

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Feds Got Reporter's Phone, Credit Card & Bank Records In Trying To Track Leaker

Mike Masnick — Mon, 28 Feb 2011 11:46:00 PST

Back in January, when I saw Daniel Ellsberg speak, one of the things he noted was how much more aggressive the Obama administration appeared to be in going after leakers than any previous administration. Ellsberg's theory -- which he admitted was based on just his intuition -- was that President Obama is actually quite embarrassed by some of the things he's doing and is, thus, more aggressive in trying to stop leaks, knowing that his actions are damaging his reputation. I don't know if that's true, but there is growing evidence of the level of questionable activities from the Obama administration even in going after leakers. Ellsberg noted at the time that the Obama administration has brought more indictments for leaking than all other presidents combined before him.

The latest is the report that came out late last week that the government, in going after leakers, got access to reporter James Risen's phone records, bank details and credit card statements. As the report notes, this is pretty extreme:

Although there have been other public controversies over subpoenas -- real and threatened -- to reporters in recent years, there have been few, if any, cases in which it has been documented that federal prosecutors obtained the bank records and credit reports of journalists.

It's not entirely clear if all of these activities took place under the Obama administration or previous administrations, but multiple people quoted in the article say this kind of activity has been much more common in the Obama Justice Department. For a President who has positioned himself as being a big supporter of press freedoms, this looks really hypocritical. Spying on reporters is bad. As the report notes, Risen was subpoenaed directly twice, but both times a judge reasonably quashed the subpoenas. So, for the administration to basically go around all that and get records from others is pretty bad.

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Obama 'Considering Legal Action' Against Wikileaks

Mike Masnick — Mon, 29 Nov 2010 12:58:25 PST

Following the latest Wikileaks leak, apparently the Obama White House is exploring "the possibility of taking legal action" against the site. That's amusing. Of course, with Homeland Security expanding its mandate to seize domain names it doesn't like, you could see an attempt to seize the Wikileaks domain. However, while I'm sure there are some in the federal government who would favor such an action, I would think there are at least a few knowledgeable people in the administration who would note that the backlash to such a move would be overwhelming. The government may be able to fool some people by pretending that seizing websites without a trial isn't censorship when it comes to copyright issues, but it would be a much more difficult claim when the site is a whistleblowing site.

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Feds Pushing For New Legally Required Wiretap Backdoor To All Internet Communications

Mike Masnick — Mon, 27 Sep 2010 12:25:40 PDT

The unfortunate, if not surprising, news story making the rounds today is that the feds in the US are looking to pass new laws to legally require a wiretap backdoor in every kind of internet communication offering. Yes, you read that right. If there's any way to communicate online, the US government is demanding the right to be able to wiretap it. Any company that doesn't comply will face fines. This despite the long history of the US government massively abusing its wiretapping privileges repeatedly throughout history.

And, yes, this would supposedly apply to non-US communications services as well:

Foreign-based providers that do business inside the United States must install a domestic office capable of performing intercepts.

Yeah, that'll go over well. It's difficult to see how this is any different than foreign governments demanding access to others' communications as well. It's pretty ridiculous for President Obama to talk about open internet principles to the UN, while cooking this up at the same time. Pushing for this also means that the US will have no excuse when the governments of Iran, China and elsewhere also demand backdoors into all US-based communications.

And, really, that's the biggest problem with this law. Beyond the inevitable privacy violations by the feds, putting backdoors into communications technologies guarantees that those backdoors will be used by others (outside of the federal government) to snoop on communications. The FBI and the NSA (who are pushing for this) are being totally and completely naive if they think that they're the only ones who will use this. We've pointed out in the past how large scale surveillance systems mean large scale security risks, and this is no different. We showed how a similar surveillance system in Greece was hacked into to spy on government officials. US officials should be aware that they're opening themselves up to these same potential risks.

And, the simple fact is: this won't help and it won't matter. The people who really want to communicate secretly will still use tools to communicate secretly. The feds are (once again) being naive to think that such tools won't exist and won't be widely known and widely utilized. Instead, all this will do is open up everyone else to abuse of the system by other governments, organized crime, people with malicious intent and (of course) the US government.

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Feds Won't Bring Charges Against School District Officials In Webcam Spying

Mike Masnick — Wed, 18 Aug 2010 03:33:16 PDT

There have been a couple of new developments in the saga of the suburban Philadelphia school district, the Lower Merion School District, that was sued by a student, after that student was disciplined (supposedly for eating candy) using photos taken by secretly installed and used webcam spying software. The school initially claimed that it only used the software 42 times, but an investigation founded 58,000 photos were taken -- including hundreds of another student, who has now also sued.

As stories came out about administrators enjoying spying on students -- referring to it as a window into their own "little... soap opera," the FBI got involved. However, the prosecutors are now saying that they won't bring charges, because there is no evidence of criminal intent. That shouldn't impact the various civil lawsuits, of course.

At the same time, Julian Sanchez points us to the news that after all of this, the school district has finally put in place new policies designed "to govern the use and tracking of student laptops and other technology." Seems like, perhaps, that should have been in place a wee bit earlier.

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Feds Say Judge Blocking Investigation Access To Laptop Spy Scandal Photos

Karl Bode — Mon, 3 May 2010 06:17:54 PDT

Things aren't looking too hot for the Pennsylvania school district that thought it would be a good idea to use student laptop webcams to spy on students at home. E-mails acquired by the lawyer heading up a civil suit against the administrator and the school district seem to highlight how the administrator had a wonderful time spying on students, while also indicating that tens of thousands of photos were taken (contrary to district claims that barely any photos were taken). As many of our commenters had wondered, it appears the lawyer may be trying to bolster his case by potentially bringing the administrator up on child porn charges -- assuming the photos involved nudity and were offloaded to her home PC. The administrator behind the plan denies those charges, and only just last weekend decided to stop pleading the Fifth and hand over the PC in question to a computer forensics expert hired by the district.

While the legality of spying on students with webcams remains in dispute, the potential child porn angle of the case has caught the eye of a federal grand jury and the FBI, who are investigating the district. But, in an added wrinkle, federal prosecutors are now claiming that a U.S. District Judge is hampering their investigation into the case. The Feds are complaining about a recent Judge order banning anyone from disseminating evidence involving the case to anyone not directly involved in the lawsuit. Prosecutors, of course, want to get their hands on the photographs taken by the webcams (which are now estimated to total 56,000 -- with only one made public), and are asking the Judge to modify his order (which was asked for by the plaintiffs) accordingly.

Interestingly, in an effort to try and control media coverage of the case, a group of area parents are asking the same U.S. District Judge to issue an order banning anyone involved in the case from giving interviews "near district schools or students' homes":

"...wearied by the international attention caused by the suit, a group of Lower Merion parents asked the judge Friday to ban lawyers and other parties in the case from giving interviews near district schools or students' homes. "We and many other parents of Lower Merion School District are outraged by the substantial distraction that the recent media frenzy has visited upon our district and our community," the parents wrote to U.S. District Judge Jan E. DuBois. "The incessant news cycles about this litigation are plainly taking their toll on the education of our children," the parents' letter said. "It has become a harmful distraction to the very persons that plaintiffs and their counsel seek to represent."

Trying to lock down media coverage and evidence doesn't appear to be helping. Meanwhile, the school district is lucky to be wealthy enough to not only give a significant chunk of their 6,000+ students Apple laptops, but also to be able to afford their legal bill -- which is estimated as having already broken the half a million dollar mark. That's barely half of 1 percent of the current $193 million budget of the Lower Merion School District. So, the scandal has resulted not only in a lawsuit and a huge (and growing) legal bill, but also in a national firestorm. It has given several politicians a re-election platform, prompted the creation of potential new national privacy legislation, and resulted in an FBI investigation. How's that stolen laptop and surveillance project working out again?

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Congress Gives $30 Million To Fight 'Piracy'

Mike Masnick — Wed, 16 Dec 2009 05:10:00 PST

Recent studies have shown that -- despite a massive recession -- both the music and movie industries are having fantastic years. However, both industries are complaining about how they're being "killed" by "piracy." There's no evidence of this of course, but when it comes to copyright, politicians don't seem to believe evidence is necessary. They just spring into action. So, just as a bunch of Federal government representatives sat down for a private meeting with entertainment industry bosses, Congress agreed to earmark another $30 million to ~~propping up their obsolete business models~~ fighting "piracy." It's a nice deal. Copyright infringement should, by any honest definition of the term, be a civil issue, taken up between private parties. There is a criminal component to copyright law, but it makes little sense. However, now the Justice Department and other local officials have a pool of cash so that they can be the entertainment industry's police force and private prosecutors.

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Feds Show Their Cards On Online Poker: Freeze Funds

Mike Masnick — Tue, 9 Jun 2009 18:41:43 PDT

For years, the federal government has insisted that online poker in the US is illegal, and reinforced it by tacking on punishment for payment processors who process gambling payments onto a totally unrelated bill about harbor safety. Poker players, on the other hand, have insisted for years that there are no laws against online poker -- in part because the laws are all against games of chance, whereas poker is a game of skill. This position received a small boost recently when a judge agreed that poker was a game of skill rather than chance. On top of this, there's been an ongoing effort underway (led by Barney Frank) to specifically make it clear that online poker is legal. However, until that bill goes anywhere, the feds apparently still believe it's very much illegal and have now started going after the payment processors, freezing the funds of payment processors who work with a variety of online poker sites. Expect quite a legal battle to follow.

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