Techdirt Has Been Released From A Gag Order Regarding A Federal Investigation Into A Silly Comment

from the don't-threaten-judges,-yo,-but-don't-over-react-to-comments dept

I’m going to start off this post with a note that, in general, you should not threaten federal judges. I do understand that people often take out their anger on decisions that go in ways they disagree with by insisting that a judge is corrupt or awful or that something ought to be done, and while I understand the impulse and the instinct to vent in that manner, it’s not very productive. Also, as you’ll see below, it creates something of a mess. Meanwhile, it’s only been a year since an angry party from a case showed up at a federal judge’s home and shot and killed her son (and shot and wounded her husband). There is now legislation being proposed to keep judges’ information more private to try to prevent such a thing from happening again.

So, again, don’t threaten a federal judge.

And given all that, it’s really not a huge surprise that the US Marshal service wants to take seriously any potential threats directed at federal judges. The problem, however, is that they aren’t always the best at recognizing what is an actual legitimate threat from some rando just venting about a judge’s decision.

Almost exactly a decade ago, the US Marshals Service reached out to us, asking us to remove a comment. The comment was a stupid comment. It was in response to what we felt was a dumb copyright ruling by a judge — and the (anonymous) commenter quipped “is it time to stop murdering the corrupt yet?” It was dumb, but it was clearly someone sounding off, not making any kind of actual threat. We refused to remove the comment, and we received no further communication from the US Marshals.

Six years ago, the US Marshals service went a step further with Reason. In a story about Silk Road creator, Ross Ulbricht, a bunch of commenters had started making angry comments about judges — including an infamous one about “wood chippers.” The DOJ not only issued a grand jury subpoena to Reason, but separately hit Reason with a gag order preventing it from saying anything about it (though it leaked out).

Over the last few months, we have been barred from telling you that we potentially faced a similar situation. I am now, however, free to tell you that the US Marshals, once again, decided that they wanted to investigate a comment made on our site loosely referring to a federal judge. This happened on a post we did back in April, regarding Judge Alan Albright and his increasingly infamous situation regarding all the patent cases that he has been actively soliciting and refusing to transfer to proper districts in a timely manner.

The first comment on that post wondered whether or not anyone was investigating the apparent “corrupted impartiality” of the judge. That spurred a reply comment stating:

Hell, eventually somebody might decide that it?s cheaper to pay a hitman to just cut a brake line or something than go through discovery in that judge?s court.

So. It seems fairly obvious to me (and hopefully to you), that this comment is not, in any way, advocating for such a thing to happen. Nor is it suggesting a plan to do such a thing. It is noting — as it says — that someone might make that decision. Frankly, this comment didn’t make that much sense to me. But, it’s pretty clearly not a threat.

However, the US Marshals decided to open an investigation into that comment. We received a phone call the morning after the comment was posted, asking to speak with “someone in your subpoena compliance section” of “your legal department” to handle an incoming subpoena. To be clear, we have no legal department, let alone a subpoena compliance section of it. However, what we thankfully have is a very helpful Ken “Popehat” White on speed dial, willing to handle these matters for us.

With help from Ken, we soon received a “preservation letter” demanding that we preserve for a period of 90 days “any and all records and other evidence, including, but not limited to, transaction logs, connection logs and electronic media (uploaded images), in [our] possession relating to…” that comment and the registered user who posted it. We were told to expect a subpoena, and that the US Marshals Service was “in the process of obtaining the appropriate court orders.” In addition, the letter effectively gagged us, saying that we were not to disclose the existence of the letter “in any manner that could alert the user” of the account.

We do not keep our log files for that long, so we actually had to make some temporary changes, and put in place a few technical things to make sure we complied as we awaited for the subpoena. We had every intention of fighting the subpoena, and pointing out just how ridiculous it was. Yes, it’s important for the US Marshals to investigate true threats on judges. But no one could seriously read that comment as a true threat. We ended up waiting out the entire 90 days, and no subpoena arrived. Again with the help of Ken, we reached out to the US Marshals, to note that the 90 days had passed and to let them know that we believed we were no longer bound by the letter. Thankfully, the US Marshals confirmed that they would not be seeking or compelling any information from us, and the preservation letter could be considered “lifted.”

It is a good thing that the US Marshals investigate threats against federal judges. I have no problem with them doing an investigation. And it’s good that they seem to have realized the nature of this comment and decided not to move forward with the subpoena (though, they could have told us earlier…). But, it sure seems like the investigation (and the conclusion that there was no real threat) could have been done relatively quickly without having us need to get our “subpoena compliance section” (thanks Ken!) involved.

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Comments on “Techdirt Has Been Released From A Gag Order Regarding A Federal Investigation Into A Silly Comment”

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48 Comments
This comment has been deemed insightful by the community.
Samuel Abram (profile) says:

In fairness to the Marshalls...

Threats may not always sound like threats. Take the stereotypical mafioso threat snowclone:

That’s a nice [X] you got there; be a shame if anything bad were to happen to it…

Before the mafia got involved, it wouldn’t have sounded like a threat, but thanks to the tropic use of it, it now sounds like a threat. The comment that caused all this trouble-

Hell, eventually somebody might decide that it’s cheaper to pay a hitman to just cut a brake line or something than go through discovery in that judge’s court.

could have been interpreted as a mafioso threat, so I could see why the Marshalls looked into it. Considering the violence that happened on January 6, I don’t think they want to take any chances.

(By the way, Mike, I don’t think you’re encouraging violence in any way, shape, or form. I’m just trying to see it from their view.)

This comment has been deemed insightful by the community.
MathFox says:

Re: In fairness to the Marshalls...

I do think the comment was reported and put on the "not-urgent" stack. Picked up by some grunt that could get his manager to sign up on the "preservation letter". The higher ups heard "Popehat", looked at the comment and decided not to press the issue. Letting a case die like this is less loss of face than a denial in court.

This comment has been deemed insightful by the community.
Derek Kerton (profile) says:

Re: In fairness to the Marshalls...

I agree with you, Samuel.
Trump made hundreds of threats in that manner as President. And he meant them, and followed through on many.

It’s impossible to tell if it’s a regular Internet smartass, or a unhinged person deliberately using plausibly deniable language.
It’s a bit like Poe’s Law…for threats of violence.

So, I’m OK if US Marshalls measure the threat as "worrisome" & go get a subpoena legitimately. Although I can’t see how they have the resources to chase down all of these low-level threats online.

In this case, I’d mostly be pissed, as Mike is, for Marshalls wasting his resources for (in the end) nothing.

Uriel-238 (profile) says:

This, to me smacks of harassment

It’s much the way Doctorow receives his TSA-approved luggage with all the locks broken anyway.

Right now the United States teems with lone wolves and pogrom planners from the widespread transnational white power movement, and real threats are being carried out if the US Marshall Service are looking for actual crime to stop.

But they agree too much with those crimes being carried out to give half a fuck, and it’s safer to investigate innocent people who said something off-handed than real threats than could use an actual psych evaluation.

After the Portland execution of Michael Reinoehl at the behest of President Trump, the US Marshall Service has demonstrated it is as rogue against the people of the US as the rest of law enforcement, and deserves all the contempt that it is shown, multiplied by orders of magnitude.

Yes, I’m bitter.

Anon says:

Re: This, to me smacks of harassment

I’ve had my luggage broken into by the TSA, and I’m nobody. (Call me "Anon") Just to be dicks, instead of cutting the lock, they broke the zipper slide. You can’t tell me they don’t have wirecutters capable of cutting one of those tiny luggage locks. They just want to be equal-opportunity assholes.

The problem is, they can’t ignore things. If they get a complaint (what bets someone forwarded the comment to them?) they need to properly evaluate it. It’s not just Mafioso threats; it’s that the unhinged are exactly that, and often too stupid to muzzle themselves before action – so any threat could be a signal of future action.

We saw the "Nah, no real threat" mentality at work on Jan. 6th. They thought "oh, these are a bunch of plain folks going to a rally, not some wild-eyed destructive rioters" (i.e. not black). These are the sort of misguided assumptions without investigating – "nothing to worry about here" – that end up badly and could result in deaths. Experience shows it is better to err on the side of caution.

The real question is what they did about it. Not revealing an investigation is, sadly, a feature of the times. At least that option expires with the investigation, it’s not one of these things where they flash "national security" and keep it under wraps indefinitely. Sometimes the police need to be (well behaved) police. And the reveal afterwards gives those who have limited self-control of their expressiveness a warning about how far they should allow themselves to go.

Uriel-238 (profile) says:

Re: Re: Doctorow's luggage and Sandy Hook symptoms

In the case of Doctorow, he got the luggage that used the backdoored keys to which the TSA had access (those were the backdoor keys that were later casually left on a table for a photo-op to assure every pen-tester had a printable copy)

They didn’t bother using the keys we know they had, they pry-bared Doctorow’s luggage, breaking it for future use. But, sure, maybe they were just too dense to be working in security and law enforcement. We don’t actually know.

As for January 6th, that wasn’t a matter of thinking radar blips were our boys on maneuvers (As per a particular December 7th) but that many responders were actively standing down and choosing to fail to respond to raiders on the US Capitol. Some of law enforcement was actively in on it.

It appears to me you’re trying to justify over-vigilance the way the Sandy Hook Project tries to pick out the rampage killer from the gagillions of other angry, misunderstood (and actively exploited) children in our school districts, resulting in the kinds of false positives that has turned the US (and our airports) into the police-state nightmare it is since the War on Terror. There are too many false positives and it only justifies police officers harassing the underclasses more, which only escalates unrest and discontent.

Anonymous Coward says:

Re: Re: This, to me smacks of harassment

So we get people wasting safety critical resources doing the War on Terror ass-covering of "It is essential that we get this haystack in the pile so we can trace back to the terrorism we couldn’t prevent to somehow ‘protect’ us?" That just damns them further.

There are legal definitions of when a threat is definetly illegal, why not just stick with those? The proverbial "Don’t come to <Name> school on Tuesday, that is when I am going to <blow it up/shoot it up>." ones which have potential to go anywhere.

Scary Devil Monastery (profile) says:

Re: This, to me smacks of harassment

"Right now the United States teems with lone wolves and pogrom planners from the widespread transnational white power movement…"

It is a bit of an issue when something that ought to be a conspiracy theory, complete with tinfoil hat, can not be dismissed as such because the FBI have already published the strong correlation between white power movements and US law enforcement agencies.

Fortunately the "lone wolves" bit holds out since although US law enforcement is riddled with the white supremacy crowd they aren’t organized infiltrators. There’s no grand plan beyond making shit harder than it has to be for minorities or anti-authoritarians.

Yet. At some point these clowns may try to organize. The odds of that happening aren’t good given how little competent people they have, but the risk exists.

Uriel-238 (profile) says:

Re: Re: A hopeful dearth of competent actors

In the podcast series You’re Wrong About (Michael Hobbes and Sarah Marshall do deep dives on semi-recent historic events that are commonly misunderstood) there’s a running theme of compound incompetence that it doesn’t take competent agents to cause an event to unfold, rather it only takes a half-assed agent with incompetent counteragents.

One of the examples is the Beltway Sniper Attacks which killed seventeen people (more still were wounded or shot at) in a crime spree that crossed six states (and Washington DC). One of the factors that through off law enforcement was an early witness suggesting a white van on which investigators fixated, ignoring the blue Chevy Caprice that was also appearing near incidents.

Also the OJ Simpson case (which is one of Sarah’s favorite topics) the police are super-resistant to seeing due process implicate, indict or convict their buddy and football hero The Juice, much to the chagrin of prosecutor Marcia Clark who struggled to get anyone in the DoJ to take the case seriously.

This is why I suspect the coup against the US that succeeds will be no more competent than the one on January 6th. It will just be a matter of repetition, luck and incompetence on the other side that will ultimately give rise to (equally incompetent) dictatorship in the US.

This comment has been deemed funny by the community.
Anonymous Coward says:

Re: Re:

Those would be:

  • the Marshal of criminal cases past
  • the Marshal of criminal cases present
    and the Marshal of criminal cases yet to come.

The Marshal of Criminal Cases Past reminisces about "social media posts" that the government could have acted upon but didn’t, which in hindsight turned out to be a bad decision.

The Marshal of Criminal Cases Present shares a drink with you and complains about the backlog of Jan 6 defendants.

The Marshal of Criminal Cases Yet To Come looks over your posts and glances meaningfully at the empty Defendant’s table.

sumgai (profile) says:

Re: Re: Re:

And my response to Ken today would be the same today as it would’ve been 58 years ago:

What are they gonna do, send me to Viet Nam?

Obviously I’m not a good candidate for the position of Subpoena Compliance Officer. But I do tend to get a case of the ass when any government personage tries to tell me I can’t do something that I most certainly can do. And I’m only three-quarters of a century young. Perhaps I’ll mellow out with age, who knows.

Anonymous Coward says:

Re: To the Popehatmobile!

I’ve never talked to, read anything written by, or in any way associated with Ken White, but I can agree with this statement.

When GDPR was first introduced, the company I worked for had an internal legal team. That team’s advice? "We’ll have to wait until there are some court decisions before we can say we’re in compliance or not."

Seriously? You’re supported to be a team of legal experts, working for the same employer I am, and you can’t give me your legal opinion if we’re doing the right thing or not?!

With a legal team like that, my pet rock could do a better job. Therefore, I am more than happy to give Mr. Ken White the benefit of the doubt and assume that he can provide better answers than that legal team.

mcherm (profile) says:

Would You Explain More About the "Gag Order"?

I completely understand about receiving the demand to preserve evidence. That’s perfectly normal in legal cases of all stripes and is applicable before any case is filed or any judge rules.

I am, however, not so familiar with gag orders — especially gag orders that can be triggered by sending a letter, without having filed any case or obtained any judicial order.

Would you be willing to share a little more about the advice you got from Ken White about keeping the information confidential? I am curious to know whether the letter you received compelled you to keep the information from being revealed to the subject of the investigation (and if so, under what authority), or if you were simply advised to do so as a best practice (and if so, why).

In my mind, there is an enormous difference between the government compelling someone not to destroy information and the government compelling someone (particularly a journalist) to remain silent.

This comment has been deemed insightful by the community.
PaulT (profile) says:

What amuses me is that when clicking on the thread linked via "remove a comment", there’s literally a comment from someone calling themselves "Hitman" that wasn’t removed..

"It is a good thing that the US Marshals investigate threats against federal judges. I have no problem with them doing an investigation."

Also, sadly, this. There’s more than enough "this guy was posting threats on 8chan before he literally went and did what he threatened to do" examples to justify investigation. They could spend more time doing that unobstructively and maybe pick better targets, but I dare say the US already has enough martyrs and so long as nobody ends up in jail because of a joke or platforms shut down because some random idiot made a comment, that seems fine.

I just hope this incident isn’t masking incidents where smaller sites were just convinced to shut down because they couldn’t fight the silliness. You know, the future the anti-230 folk are wishing upon every site. The main issue here is the nagging feeling that funds were diverted away from valuable investigations, but I suppose the nature of investigation is that you don’t know everything until you’ve gone own some dead ends…

anon says:

I’m disappointed that it wasn’t me. I thought it was funny because I know enough about modern cars to know that:
1) cutting the brake lines would generate a warning light on the dashboard.
2) notching the brake lines still leaves the emergency brake.
3) if all else fails you can stop a vehicle by putting it into park or reverse

I also know that judges are replaceable, especially if they are make bad rulings.

Anonymous Coward says:

Techdirt could have violated the gag order in a way where the one who did it could not be traced.

Using Tor, combined with a VPN will make you all but untraceable.

I do that if I am going to post a comment that might pique the Feds’ interest, such as this one which tells people how to avoid being traced.

The Feds could get the IP address of any poster in a way where Mike would never know.

The Feds could break into the database backend, and get the metadata that way.

Because the popular server level databases do not have logging, the Feds could break in and get it, and Mike would never detect their presence in his database.

If the Feds want to trace you on here, they can do it where Mike would never detect their presence in his database.

So if you going to post anything that might attract the attention of the Feds, it would be a good idea to combine a VPN with Tor, so you cannot be traced.

Jono793 (profile) says:

You absolutely shouldn’t threaten judges. That said Judge Alan Albright is sadly, very threaten-able.

He continues to disregard rulings from superior courts, when those rulings aren’t favourable to another ice rink being built. His rulings make the already racist, sexist and classist patent regime even worse!

He should be…what’s the word?… With extreme prejudice!

Impeached! He should be impeached and removed through the legal process! 😉

Anonymous Coward says:

Techdirt, Giant Internet denizen of Evil !

Techdirt readers must be more radical and there must be way more of them than I imagined. Must be, if the comments (and articles) keeps attracting the US. Marshalls attention.

I wonder if they’ve heard of those lesser up and coming sites of derogatory opinion and commentary. Maybe Mike can introduce the US Marshalls to, oh say, Facebook and Twitter, just to name a few. I hear they are getting popular. I wonder what they might find there? Or on Parler? Or OAN.

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