Democratic National Committee's Lawsuit Against Russians, Wikileaks And Various Trump Associates Full Of Legally Nutty Arguments

from the slow-down-there-dnc dept

This morning I saw a lot of excitement and happiness from folks who greatly dislike President Trump over the fact that the Democratic National Committee had filed a giant lawsuit against Russia, the GRU, Guccifier 2, Wikileaks, Julian Assange, the Trump campaign, Donald Trump Jr., Jared Kushner, Paul Manafort, Roger Stone and a few other names you might recognize if you've followed the whole Trump / Russia soap opera over the past year and a half. My first reaction was that this was unlikely to be the kind of thing we'd cover on Techdirt, because it seemed like a typical political thing. But, then I looked at the actual complaint and it's basically a laundry list of the laws that we regularly talk about (especially about how they're abused in litigation). Seriously, look at the complaint. There's a CFAA claim, an SCA claim, a DMCA claim, a "Trade Secrets Act" claim... and everyone's favorite: a RICO claim.

Most of the time when we see these laws used, they're indications of pretty weak lawsuits, and going through this one, that definitely seems to be the case here. Indeed, some of the claims made by the DNC here are so outrageous that they would effectively make some fairly basic reporting illegal. One would have hoped that the DNC wouldn't seek to set a precedent that reporting on leaked documents is against the law -- especially given how reliant the DNC now is on leaks being reported on in their effort to bring down the existing president. I'm not going to go through the whole lawsuit, but let's touch on a few of the more nutty claims here.

The crux of the complaint is that these groups / individuals worked together in a conspiracy to leak DNC emails and documents. And, there's little doubt at this point that the Russians were behind the hack and leak of the documents, and that Wikileaks published them. Similarly there's little doubt that the Trump campaign was happy about these things, and that a few Trump-connected people had some contacts with some Russians. Does that add up to a conspiracy? My gut reaction is to always rely on Ken "Popehat" White's IT'S NOT RICO, DAMMIT line, but I'll leave that analysis to folks who are more familiar with RICO.

But let's look at parts we are familiar with, starting with the DMCA claim, since that's the one that caught my eye first. A DMCA claim? What the hell does copyright have to do with any of this? Well...

Plaintiff's computer networks and files contained information subject to protection under the copyright laws of the United States, including campaign strategy documents and opposition research that were illegally accessed without authorization by Russia and the GRU.

Access to copyrighted material contained on Plaintiff's computer networks and email was controlled by technological measures, including measures restricting remote access, firewalls, and measures restricting acess to users with valid credentials and passwords.

In violation of 17 U.S.C. § 1201(a), Russia, the GRU, and GRU Operative #1 circumvented these technological protection measures by stealing credentials from authorized users, condcting a "password dump" to unlawfully obtain passwords to the system controlling access to the DNC's domain, and installing malware on Plaintiff's computer systems.

Holy shit. This is the DNC trying to use DMCA 1201 as a mini-CFAA. They're not supposed to do that. 1201 is the anti-circumvention part of the DMCA and is supposed to be about stopping people from hacking around DRM to free copyright-covered material. Of course, 1201 has been used in all sorts of other ways -- like trying to stop the sale of printer cartridges and garage door openers -- but this seems like a real stretch. Russia hacking into the DNC had literally nothing to do with copyright or DRM. Squeezing a copyright claim in here is just silly and could set an awful precedent about using 1201 as an alternate CFAA (we'll get to the CFAA claims in a moment). If this holds, nearly any computer break-in to copy content would also lead to DMCA claims. That's just silly.

Onto the CFAA part. As we've noted over the years, the Computer Fraud and Abuse Act is quite frequently abused. Written in response to the movie War Games to target "hacking," the law has been used for basically any "this person did something we dislike on a computer" type issues. It's been dubbed "the law that sticks" because in absence of any other claims that one always sticks because of how broad it is.

At least this case does involve actual hacking. I mean, someone hacked into the DNC's network, so it actually feels (amazingly) that this may be one case where the CFAA claims are legit. Those claims are just targeting the Russians, who were the only ones who actually hacked the DNC. So, I'm actually fine with those claims. Other than the fact that they're useless. It's not like the Russian Federation or the GRU is going to show up in court to defend this. And they're certainly not going to agree to discovery. I doubt they'll acknowledge the lawsuit at all, frankly. So... reasonable claims, impossible target.

Then there's the Stored Communications Act (SCA), which is a part of ECPA, the Electronic Communications Privacy Act, which we've written about a ton and it does have lots of its own problems. These claims are also just against Russia, the GRU and Guccifer 2.0, and like the DMCA claims appear to be highly repetitive with the CFAA claims. Instead of just unauthorized access, it's now unauthorized access... to communications.

It's then when we get into the trade secrets part where things get... much more problematic. These claims are brought against not just the Russians, but also Wikileaks and Julian Assange. Even if you absolutely hate and / or distrust Assange, these claims are incredibly problematic against Wikileaks.

Defendants Russia, the GRU, GRU Operative #1, WikiLeaks, and Assange disclosed Plaintiff's trade secrets without consent, on multiple dates, discussed herein, knowing or having reason to know that trade secrets were acquired by improper means.

If that violates the law, then the law is unconstitutional. The press regularly publishes trade secrets that may have been acquired by improper means by others and handed to the press (as is the case with this content being handed to Wikileaks). Saying that merely disclosing the information is a violation of the law raises serious First Amendment issues for the press.

I mean, what's to stop President Trump from using the very same argument against the press for revealing, say, his tax returns? Or reports about business deals gone bad, or the details of secretive contracts? These could all be considered "trade secrets" and if the press can't publish them that would be a huge, huge problem.

In a later claim (under DC's specific trade secrets laws), the claims are extended to all defendants, which again raises serious First Amendment issues. Donald Trump Jr. may be a jerk, but it's not a violation of trade secrets if someone handed him secret DNC docs and he tweeted them or emailed them around.

There are also claims under Virginia's version of the CFAA. The claims against the Russians may make sense, but the complaint also makes claims against everyone else by claiming they "knowingly aided, abetted, encouraged, induced, instigated, contributed to and assisted Russia." Those seem like fairly extreme claims for many of the defendants, and again feel like the DNC very, very broadly interpreting a law to go way beyond what it should cover.

As noted above, there are some potentially legit claims in here around Russia hacking into the DNC's network (though, again, it's a useless defendant). But some of these other claims seem like incredible stretches, twisting laws like the DMCA for ridiculous purposes. And the trade secret claims against the non-Russians is highly suspect and almost certainly not a reasonable interpretation of the law under the First Amendment.

Filed Under: cfaa, conspiracy, dmca, dnc, donald trump junior, ecpa, gru, hack, hacking, jared kushner, julian assange, paul manafot, rico, roger stone, russia, sca, trade secrets
Companies: dnc, wikileaks


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  1. identicon
    Anonymous Coward, 21 Apr 2018 @ 7:32am

    Re: Re:

    Watergate
    From Wikipedia, the free encyclopedia
    https://en.wikipedia.org/wiki/Watergate_complex

    The Watergate complex is a group of six buildings in the Foggy Bottom neighborhood of Washington, D.C., in the United States, known particularly for the infamous 1972 burglary of the Democratic National Committee, which ultimately led to the resignation of President Richard Nixon.
    Covering a total of 10 acres (4.0 ha) next to the John F. Kennedy Center for the Performing Arts, the buildings include:
    • Watergate West (2700 Virginia Avenue NW), cooperative apartments
    • Watergate 600 (600 New Hampshire Ave NW), office building not involved in the Watergate scandal
    • Watergate Hotel (2650 Virginia Avenue NW)
    • Watergate East (2500 Virginia Avenue NW), cooperative apartments[2]
    • Watergate South (700 New Hampshire Avenue NW), cooperative apartments
    • Watergate Office Building (2600 Virginia Ave NW), the office building where the Watergate burglary happened

    The Watergate Break-In
    https://www.history.com/topics/watergate

    The origins of the Watergate break-in lay in the hostile political climate of the time. By 1972, when Republican President Richard M. Nixon was running for reelection, the United States was embroiled in the Vietnam War, and the country was deeply divided.

    A forceful presidential campaign therefore seemed essential to the president and some of his key advisers. Their aggressive tactics included what turned out to be illegal espionage. In May 1972, as evidence would later show, members of Nixon’s Committee to Re-Elect the President (known derisively as CREEP) broke into the Democratic National Committee’s Watergate headquarters, stole copies of top-secret documents and bugged the office’s phones.

    Deep Throat
    From Wikipedia, the free encyclopedia
    https://en.wikipedia.org/wiki/Deep_Throat_(Watergate)

    Deep Throat is the pseudonym given to the secret informant who provided information in 1972 to Bob Woodward, who shared it with Carl Bernstein. Woodward and Bernstein were reporters for The Washington Post, and Deep Throat provided key details about the involvement of U.S. President Richard Nixon's administration in what came to be known as the Watergate scandal. In 2005, 31 years after Nixon's resignation and 11 years after Nixon's death, a family attorney stated that former Federal Bureau of Investigation Associate Director Mark Felt was Deep Throat. Felt was suffering from dementia at the time and had previously denied being Deep Throat, but Woodward and Bernstein confirmed the attorney's claim.


    Watergate Scandal Standard Explanation
    From Wikipedia, the free encyclopedia
    https://en.wikipedia.org/wiki/Watergate_scandal

    The Watergate Scandal was a major political scandal that occurred in the United States during the early 1970s, following a break-in by five men at the Democratic National Committee (DNC) headquarters at the Watergate office complex in Washington, D.C. on June 17, 1972, and President Richard Nixon's administration's subsequent attempt to cover up its involvement. After the five burglars were caught and the conspiracy was discovered, Watergate was investigated by the United States Congress. Meanwhile, Nixon's administration resisted its probes, which led to a constitutional crisis.

    J. Edgar Hoover
    From Wikipedia, the free encyclopedia
    https://en.wikipedia.org/wiki/J._Edgar_Hoover

    Died: May 2, 1972 (aged 77)
    Watergate Break In: June 17, 1972

    Investigation of subversion and radicals

    Hoover was concerned about what he claimed was subversion, and under his leadership, the FBI investigated tens of thousands of suspected subversives and radicals. According to critics, Hoover tended to exaggerate the dangers of these alleged subversives and many times overstepped his bounds in his pursuit of eliminating that perceived threat.[39]
    William G. Hundley, a Justice Department prosecutor, said Hoover may have inadvertently kept alive the concern over communist infiltration into the government, quipping that Hoover’s “informants were nearly the only ones that paid the party dues.”[40]

    Florida and Long Island U-boat landings

    The FBI investigated rings of German saboteurs and spies starting in the late 1930s, and had primary responsibility for counterespionage. The first arrests of German agents were made in 1938 and continued throughout World War II.[41] In the Quirin affair, during World War II, German U-boats set two small groups of Nazi agents ashore in Florida and Long Island to cause acts of sabotage within the country. The two teams were apprehended after one of the men contacted the FBI and told them everything. He was also charged and convicted.[42]
    Illegal wire-tapping
    During this time period President Roosevelt, out of concern over Nazi agents in the United States, gave “qualified permission” to wiretap persons “suspected ... [of] subversive activities”. He went on to add, in 1941, that the United States Attorney General had to be informed of its use in each case.[43]

    The Attorney General Robert H. Jackson left it to Hoover to decide how and when to use wiretaps, as he found the “whole business” distasteful. Jackson’s successor at the post of Attorney General, Francis Biddle, did turn down Hoover's requests on occasion.[44]

    Concealed espionage discoveries

    The FBI participated in the Venona Project, a pre-World War II joint project with the British to eavesdrop on Soviet spies in the UK and the United States. They did not initially realize that espionage was being committed, but the Soviet's multiple use of one-time pad ciphers (which with single use are unbreakable) created redundancies that allowed some intercepts to be decoded. These established that espionage was being carried out.

    Hoover kept the intercepts – America's greatest counterintelligence secret – in a locked safe in his office.

    He chose to not inform President Truman, Attorney General J. Howard McGrath, or Secretaries of State Dean Acheson and General George Marshall while they held office.

    He informed the Central Intelligence Agency (CIA) of the Venona Project in 1952.[45][46]

    Plans for suspending habeus corpus

    In 1946 Attorney General Tom C. Clark authorized Hoover to compile a list of potentially disloyal Americans who might be detained during a wartime national emergency. In 1950, at the outbreak of the Korean War, Hoover submitted to President Truman a plan to suspend the writ of habeas corpus and detain 12,000 Americans suspected of disloyalty. Truman did not act on the plan.[47]

    COINTELPRO and the 1950s

    In 1956, Hoover was becoming increasingly frustrated by U.S. Supreme Court decisions that limited the Justice Department's ability to prosecute people for their political opinions, most notably communists. Some of his aides reported that he purposely exaggerated the threat of communism to "ensure financial and public support for the FBI."[48] At this time he formalized a covert "dirty tricks" program under the name COINTELPRO.[49] COINTELPRO was first used to disrupt the Communist Party USA, where Hoover went after targets that ranged from suspected everyday spies to larger celebrity figures such as Charlie Chaplin that he saw as spreading Communist Party propaganda.[50]

    COINTELPRO's methods included infiltration, burglaries, illegal wiretaps, planting forged documents, and spreading false rumors about key members of target organizations.[51] Some authors have charged that COINTELPRO methods also included inciting violence and arranging murders.[52][53]
    This program remained in place until it was exposed to the public in 1971, after the burglary by a group of eight activists of many internal documents from an office in Media, Pennsylvania, and COINTELPRO became the cause of some of the harshest criticism of Hoover and the FBI.

    COINTELPRO's activities were investigated in 1975 by the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, called the "Church Committee" after its chairman, Senator Frank Church (D-Idaho); the committee declared COINTELPRO's activities were illegal and contrary to the Constitution.[54]

    Hoover amassed significant power by collecting files containing large amounts of compromising and potentially embarrassing information on many powerful people, especially politicians. According to Laurence Silberman, appointed Deputy Attorney General in early 1974, FBI Director Clarence M. Kelley thought such files either did not exist or had been destroyed. After The Washington Post broke a story in January 1975, Kelley searched and found them in his outer office. The House Judiciary Committee then demanded that Silberman testify about them.

    Watergate Scandal - Alternate Explanation

    The Watergate Scandal was a major political scandal that occurred in the United States during the early 1970s, following a break-in by five men of the Soviet Consulate located in Watergate office complex in Washington, D.C. on June 17, 1972. The FBI operating as a shadow government bated high level intelligence operatives (including at least one CIA type, an agency the FBI despises) into breaking into the consulate for high level soviet files and reports. The FBI then conveniently arranged for a Watergate guard to discover the break in before the buglers could enter the soviet consulate. This presented the Nixon administration with an intractable problem of covering up the real reason for the break or risk a major cluster f__k with the soviets and having a conformation with Hoover’s Shadow government FBI.

    One of the minor bit players as a very junior attorney was Hillary Clinton. This gave her inside knowledge of methods and procedures which were remarkable similar to one current being used.

    Robert Bork
    From Wikipedia, the free encyclopedia
    https://en.wikipedia.org/wiki/Robert_Bork

    Robert Heron Bork (March 1, 1927 – December 19, 2012) was an American judge, government official, and legal scholar who advocated the judicial philosophy of originalism. Bork served as a Yale Law School professor, the United States Solicitor General, the Acting United States Attorney General, and as a judge of the United States Court of Appeals for the District of Columbia Circuit. In 1987, President Ronald Reagan nominated Bork to the Supreme Court, but the United States Senate rejected his nomination.

    "Saturday Night Massacre"

    On October 20, 1973, Solicitor General Bork was instrumental in the "Saturday Night Massacre" when U.S. President Richard Nixon ordered the firing of Watergate Special Prosecutor Archibald Cox following Cox's request for tapes of his Oval Office conversations. Nixon initially ordered U.S. Attorney General Elliot Richardson to fire Cox. Richardson resigned rather than carry out the order. Richardson's top deputy, Deputy Attorney General William Ruckelshaus also considered the order "fundamentally wrong"[15] and resigned, making Bork Acting Attorney General. When Nixon reiterated his order, Bork complied and fired Cox. Bork remained Acting Attorney General until the appointment of William B. Saxbe on January 4, 1974.[16]

    In his posthumously published memoirs, Bork stated that following the firings, Nixon promised him the next seat on the Supreme Court. Nixon was unable to carry out the promise after resigning in the wake of the Watergate scandal, but eventually, in 1987, Ronald Reagan nominated Bork for the Supreme Court.[17]

    U.S. Supreme Court nomination
    Following Bork's nomination, Sen. Ted Kennedy took to the Senate floor with a strong condemnation of Bork declaring:

    Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy ... President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.

    Alternate Explanation

    Conformation denial of Bork was payback for his involvement in Watergate and the Saturday Night Massacre

    One will note that the players in the Nixon and Trump trashing are exactly the same organizations and very similar procedures are being used. One should note that in both the central information source of negative information against the president was and is from the Directors / Deputy Directors FBI.

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