On Friday, we wrote about reports that the DOJ had decided not to force Pulitzer Prize-winning journalist James Risen to reveal an intelligence community source for a story he wrote years ago -- though he still may be subpoenaed and put on the stand about other stuff (and it's not entirely clear if he'll agree to do that). However, there was a bit of irony in all of this: the DOJ leaked this information to the press. Risen's lawyer told reporter Jana Winter that they hadn't received any official word when the stories started appearing in the press, and there hadn't been any official government filing. The NY Times reports the same thing. Instead, it was just reported in the press as "according to a person familiar with the decision."
In other words, it "leaked" from the DOJ.
Or, more specifically, it leaked from the DOJ that it wouldn't seek to put a reporter in jail for refusing to say who leaked other information to him, as it still looks to put that original leaker in jail.
The entire situation was driven by the DOJ's attempt to totally crackdown on leaks that the administration doesn't like. As we've discussed, the Obama administration has (like no other administration in history) declared war on leakers and whistleblowers. It has used the Espionage Act (which is supposed to be used against spies) more than double all other Presidents combined to prosecute those involved in leaks, including journalists. The administration has set up an "Insider Threat Program" and produced a document comparing leaks to "aiding the enemies of the United States."
And, yet... when the government leaks out information that makes the administration look good, suddenly no one has a problem. For years, even when there are leaks that might be said to "compromise national security," so long as they make the administration "look good" no one cares. There are no investigations or freakouts or threats to put reporters or leakers in jail.
And thus, here we are, with the final chapter in the ridiculous Risen intimidation saga involving the DOJ leaking to the press the information that it won't seek to put him in jail for not revealing who leaked him information.
I'm guessing that there will be no investigation at all into who "leaked" this particular information.
Pulaski County Prosecuting Attorney Larry Jegley said he will issue an arrest affidavit today against Rodney Forte, the executive director of the Metropolitan Housing Alliance in Little Rock, for a violation of the Arkansas Freedom of Information Act.
Any person who negligently violates any of the provisions of this chapter shall be guilty of a misdemeanor and shall be punished by a fine of not more than two hundred dollars ($200) or thirty (30) days in jail, or both, or a sentence of appropriate public service or education, or both.
It's nice to see someone following the letter of the law. Not following the letter of the law (and steamrolling its spirit) is what put Forte in the prosecutor's sights. Forte had decided to greet a FOIA request he didn't want to fulfill with the time-honored anti-FOIA tactic of pricing his agency out of the market.
The action comes after the Metropolitan Housing Alliance sent an invoice to the Arkansas Democrat-Gazette late Tuesday,charging more than $16,000 to hire outside workers to help the agency comply with a records-release request -- a practice the Little Rock city attorney and other Arkansas Freedom of Information Act experts say is illegal.
It may be illegal, but plenty of agencies do it without suffering anything more than a loss in the court of public opinion. Sure, they may eventually face lawsuits, but that's really just public money being spent in defense of a publicly-funded agency's desire to keep the public separated from public documents. It's about as painful to the offending agency as being punched in someone else's wallet.
This particular form of enforcement is rarely (if ever) deployed, although Arkansas seems to be more aggressive than most states when it comes to punishing violators. In Jegley's 23 years as a county prosecutor, he's never seen this happen. Usually some sort of compromise between requester and requestee is reached before it gets to this point. But that hasn't happened in this dispute, which has been ongoing for several months now -- even involving Little Rock's mayor's intervention on behalf of the requesting party, the Arkansas Democrat-Gazette.
Little Rock Mayor Mark Stodola contacted Forte on Wednesday in an attempt to intervene in the latest dispute over records. Stodola is a former Little Rock city attorney and Pulaski County prosecutor.
"I am not familiar with any request for payment for such a large nature as this and based on my interpretation of the Freedom of Information Act, the computer systems that the agency has are required to make this information readily available," Stodola said.
"These kinds of document requests are routine, and when I was prosecutor, virtually all of this kind of information [at most agencies] is kept in an electronic format that can be downloaded quite easily."
Forte claims proprietary software is involved and all documents would need to be printed and scanned before they could be released, but has failed to detail what software the agency is using or released any other technical details. He has also hasn't discussed his agency's failure to comply with another section of the state's FOIA law.
Arkansas Code Annotated 25-19-105 (g) states that any software acquired by an agency "shall be in full compliance with the requirements" of the Freedom of Information Act and "shall not impede public access to records in electronic form."
So, Jegley has answered Forte's obfuscatory power play with one of his own. At this point, Forte's arrest is in the hands of a judge. Jegley still needs to turn his affidavit into a warrant, at which point it may expand to include others involved in the Metropolitan Housing Authority's $16,000 fiasco.
Hopefully, this move will force the documents out of the agency's hands. Clearly, there's something in there it wants hidden -- something likely related to agency's addition of a $92,000/yr deputy executive director during a period when it was shedding nearly a third of its staff and reducing pay to non-salaried employees.
Even if this goes nowhere, it's still incredibly refreshing to see public servants acting to hold other public servants accountable. Other states should take a good look at Arkansas' FOIA law and think about giving their own a few teeth by making violations an arrestable offense.
Yes, no one tells the NYPD what to do, not even the District Attorney. The NYPD's memo -- one that plainly states it will arrest people who will never be prosecuted -- is required reading for Brooklyn precincts for the next 10 days, just to ensure those police officers understand their workday will contain a certain amount of deliberate futility.
On one hand, the memo does contain a good point -- law enforcement should be consistent across all of New York's boroughs. On the other hand, it plainly states that the NYPD is more interested in generating paperwork and empty arrest statistics than approaching the DA's announcement in a more reasonable fashion.
Here's what DA Thompson was hoping to accomplish with his decision to not pursue low-level drug offenders.
The move was intended to "make better use of limited law enforcement resources and to prevent offenders – who are disproportionately young men of color – from being saddled with a criminal record for a minor, non-violent offense," according to a statement.
This could have been seen as an indication of where the department should head -- towards a more reasonable stance on drug enforcement. Instead, it's been viewed as "inconsistency" and responded to with all the obstinance the department is famous for.
DA Thompson's order really doesn't eliminate that many possession arrests. His memo stated that those smoking in public (especially around children), 16-17-year-old offenders (who will be placed into a diversion program) and people with existing criminal records will still be prosecuted. This just leaves mainly the truly harmless: recreational users.
But the War on Drugs is every bit as essential to the NYPD as the War on Terror, and the NYPD (with new chief Bill Bratton's blessing) will continue to make meaningless arrests -- arrests made even more meaningless by DA Thompson's announcement.
Over the past 15 years, marijuana arrests in New York have soared, partly because a rising number of stop-and-frisk encounters led to searches of people’s pockets.
There were 8,150 cases in Brooklyn in which the top count was a minor marijuana possession charge in the year ending June 30, according to the memo on Tuesday. Marijuana arrests have decreased during the first six months of this year, compared with the same period in 2013.
That decrease in marijuana arrests is directly related to the decline in stop-and-frisk encounters after a court decision and a new city law curbed this controversial program. It's quite obviously not (the NYPD's directive confirms it) the result of the NYPD shifting its focus to more serious criminal activity.
There's hardly anything more ridiculous than deploying law enforcement officers -- with all their expertise and training -- to bust users of a drug that has been legalized in two states for recreational use and in a host of other states for medical use. There's nothing more ridiculous than sending officers out to bust recreational users and serve them up to a DA who's just going to let them go -- and one that specifically told the department he would not prosecute.
When a moral panic really gets rolling, it often seems like there isn't enough inertia in the world to slow it down. It sure seemed that way to me when it came to "sexting", the term for people, often young folks who don't fully appreciate the consequences, sending around naked pictures of themselves or their friends. I think there might be a great many older folks who forget what it was like to be a kid and then couple that with a general fear of digital technologies and suddenly the sky is falling. That's how you end up with prosecutors who look to charge young people who engage in sexting under child pornography laws, despite the inherent ridiculousness of that situation.
According to reports from the Central Virginian and the Associated Press, an investigation by the county sheriff’s office uncovered more than 1,000 nude or sexually suggestive photos posted to Instagram accounts and shared between more than 100 teenagers in Louisa and surrounding counties. But unlike other teen sexting rings that have made national news—where sexters have been brought up on felony pornography charges or disciplined by their schools—Louisa has opted to respond to the scandalous headlines with a refreshing dose of common sense. Major Donald Lowe told the AP that although the Louisa County Sheriff’s Office is still scouring student cellphones for signs of nonconsensual sexual activity, which could result in criminal charges, most students involved won’t be prosecuted. “We said from the beginning that we’re not going to label everyone who participated in this a sex offender,” he said. “There’s no reason to destroy people’s lives and careers over this.”
Now, for those of you already getting your ire up for a rebuttal, the question should always be, "How is justice best served?" I would think the answer to that question should generally be to stop illicit or unwanted behavior while making sure everyone involved is impacted as beneficially as possible. That isn't done by prosecuting children who simply aren't capable of a full understanding of the consequences of their actions. Educating them on the law and the consequences, on the other hand, seems to do the job nicely. With that in mind, McGuire is actively engaging students on their turf.
Louisa schools are expanding programs to teach teenagers “the dangers of social media and how to make smart choices” and are launching a program for parents to help discuss the issue with their kids. McGuire “talks about the importance of not doing any [sexting] activities,” Straley told me. “If you put it out there, it doesn’t go away. Teenagers need to know that and understand that when they put it out there, they’re more or less saying that they’re OK with the world seeing this.”
This is called hitting the nail on the head. Instead of throwing the legal book at someone, you educate everyone. Share some stories about how these kinds of actions have had negative impacts, get parents involved on the issue, and meet kids on a level playing field where you openly and honestly discuss why this might not be such a good idea. Kids are kids and teenagers are going to be interested in sex, no matter what you do. But kids are also generally smarter than I think most of us adults give them credit for and they can grasp the true impact of these actions if someone takes the time to lay it out for them.
Meanwhile, no children are suddenly living with a sexual predator label for the rest of their lives. That's the best solution all around.
Last summer, MIT tried (weakly) to defend what it called its "neutral" stance on Aaron Swartz, allowing the case to proceed even though the only party that had a legitimate claim to "harm," JSTOR, had come out almost immediately after Swartz's indictment to say that it did not support the prosecution. Around the same time, we noted that MIT was in the midst of a legal fight to block the release of Swartz's Secret Service file. Some found this effort a bit odd -- but the reasons are now becoming clear. An investigative report by the Boston Globe, scouring 7,000 pages of discovery documents in the case, found that some employees at MIT appeared to gleefully support going after Swartz with all of the powers of the DOJ.
In a handful of e-mails, individual MIT employees involved in the case aired sentiments that were far from neutral. One, for example, gushed to prosecutor Stephen P. Heymann about the quality of the indictment of Swartz.
“Nicely done Steve and kudos! All points . . . are as accurate as I’ve ever seen,” wrote the information technology employee. “(I only say that because every time I’ve ever given an interview, details are always slightly to horribly munged; not that I ever expected any less, it’s just a true relief and very refreshing to see your accuracy and precision).”
Elsewhere, it becomes clear that MIT helped escalate the case when calling in law enforcement. The Globe highlights a note taken by an MIT library staffer who noted that it was "now a federal case" and "All we provide is by choice -- not subpoenaed." Even more damning, a senior MIT network engineer basically seemed to think he was now working for the DOJ:
That cooperation with law enforcement also extended to a senior MIT network engineer who monitored traffic to and from Swartz’s laptop and appeared to be looking to Pickett for instructions. On Jan. 5, having collected 70 gigabytes of network traffic, he e-mailed the agent, “I was just wondering what the next step is.”
The documents also demonstrate that MIT employees "prodded JSTOR to get answers for prosecutors more quickly -- before a subpoena had been issued." That hardly seems "neutral."
The report also notes that MIT -- as admitted by an internal investigation -- "paid little attention to the details of the charge" including the key fact that the CFAA charge depended on this being "unauthorized access." However, since MIT's network was wide open to guests, it was hard to say that it was unauthorized. Yet MIT did little to explain that to prosecutors.
The report also delves into JSTOR's side of things, suggesting that, contrary to its public stance, before Swartz was revealed, it too was pretty angry (often at MIT) and considered calling in law enforcement repeatedly. However, in the end it appears that cooler heads prevailed there, as the organization decided not to pursue those actions. If only the same had happened at MIT.
from the this-time,-with-some-reality-involved dept
Tomorrow is the anniversary of the unfortunate passing of Aaron Swartz. Senators John Cornyn and Al Franken, along with Rep. Darryl Issa, have now sent Attorney General Eric Holder yet another request for an explanation concerning the investigation and prosecution of Swartz. This follows on a similar request from last year, but these elected officials note both that the DOJ's response was inadequate, and that it was also contradicted by the eventual report on the prosecution that came out of MIT.
We regret that the information your Department has provided to date has not
been satisfactory -- among other things, it painted a picture of prosecutors unwilling
or unable to weigh what charges to pursue against a defendant, something which
you have instructed federal prosecutors is "among [their] most fundamental duties."
The account also is inconsistent with findings in the report prepared by MIT
about the prosecution of Mr. Swartz, dated July 26, 2013 ("MIT Report"). A letter
provided by the Department in May states that "the charging and sentencing
decisions made by Department. lawyers were properly based on the law and the
facts of the case . . . and not on inappropriate considerations, such as Mr. Swartz's
exercise of his legal rights as a citizen." The MIT Report indicates that Assistant
U.S. Attorney Stephen Heymann considered other factors in advance of the return
of the superseding indictment. He told MIT that "the straw that broke the camel's
back" was an internet webpage soliciting signatures on Mr. Swartz's behalf by
Demand Progress, an activist group founded by Mr. Swartz.
In other words, despite the claims from Holder that the charges against Aaron were not based on Swartz exercising his right to free speech, Stephen Heymann has since admitted that, in fact, Swartz's friends speaking out on his behalf were what made him decide to try to throw the book at Swartz. The letter points out further claims from Holder that appear to be contradicted by the MIT report and note:
Inconsistencies such as these require serious responses to the original letter,
and indeed raise more questions about the prosecution of Mr. Swartz. One year
ago, we sought the basis for the U.S. Attorney Carmen Ortiz's determination that
her office's conduct was "appropriate." We have received no such information, not
even the sentencing memoranda that surely were prepared in a case such as this.
In March, you testified that Mr. Swartz's case was "a good use of
prosecutorial discretion." We respectfully disagree. We hope your response to this
letter is fulsome, which would help re-build confidence about the willingness of the
Department to examine itself where prosecutorial conduct is concerned.
Given how Holder and the DOJ have responded to these issues in the past, I wouldn't expect any real response to be forthcoming any time soon.
A few weeks ago, we wrote about the MIT report concerning the case against Aaron Swartz. A number of people have picked up on some really questionable things in the report. One incredible claim made in it was that Assistant U.S. Attorney Stephen Heymann, who was running the prosecution against Swartz, apparently admitted that he really only ramped up his efforts against Swartz to punish Swartz and the organization he founded, Demand Progress, for having the audacity to discuss the case publicly and explain why Swartz believed he didn't do anything wrong. Here's the passage from the report:
The prosecutor said that, pre-indictment, he had wanted to approach the case on a
human level, not punitively. To this extent he made an extremely reasonable
proposal, and was "dumb-founded" by Swartz's response.
The prosecutor said that the straw that broke the camel's back was that when he
indicted the case, and allowed Swartz to come to the courthouse as opposed to
being arrested, Swartz used the time to post a "wild Internet campaign" in an
effort to drum up support. This was a "foolish" move that moved the case "from a
human one-on-one level to an institutional level." The lead prosecutor said that on
the institutional level cases are harder to manage both internally and externally
MIT used this to explain why it thought that any public statements it might make in support of Swartz would make the case worse for him, because Heymann, in his petty vindictive mind, might view it as a further "wild" public campaign by Swartz. Leaving aside that this makes absolutely no sense at all, the actions of Heymann are particularly despicable here, suggesting that merely professing your innocence to crimes that you believe you are innocent of, should lead to much greater prosecution.
This passage has now caught the attention of Rep. Darrell Issa, and he is asking Attorney General Eric Holder about whether or not the DOJ directly comes down hard on those who exercise their First Amendment rights in the face of questionable prosecutions:
"The implication that the Department ratcheted up the prosecution by moving the case to 'an institutional level' after it discovered the petition by Demand Progress suggests that the Department acted in a retaliatory manner and that it bases its charging decisions on externalities such as an Internet campaign," Issa, who chairs the House Oversight Committee, wrote in his letter to Holder.
"The suggestions that prosecutors did in fact seek to make an example out of Aaron Swartz because Demand Progress exercised its First Amendment rights in publicly supporting him raises new questions about the Department's handling of the case," Issa wrote.
A separate point that comes out in the report that is equally as absurd was that Heymann believed that the case required some jail time as punishment because it "involves the unauthorized downloading of intellectual property that cost millions of dollars to create." This is ridiculous on so many levels. First of all, MIT made those works freely available to anyone on campus, so the argument that it was "unauthorized" remains very questionable. Second, the "cost millions of dollars to create" argument is simply laughable. Nearly all of that was publicly funded by taxpayer money, which is supposed to lead to the enrichment of public learning and knowledge -- the exact thing that Swartz appeared to be focused on. This ridiculous belief that he needed to be put in prison because of the monetary cost of creating these educational works is astounding. And sad, given the eventual outcome.
It's no secret that the DOJ often seems to think that "intellectual property" laws are designed to protect the moneyed interests of copyright holders, but that's not what the Constitution or the law says. At the very least, the people hired as US Attorney's to represent the US government should know better than to ratchet up prosecution for people who are expressing their First Amendment rights and doing things that directly align with the Constitutional reasons for copyright law.
Assistant US Attorney Stephen Heymann is a disgrace to the Constitution he's supposed to be defending.
Well, this is interesting. Last week, of course, it was revealed that the DOJ has charged Ed Snowden for various crimes, including "theft of government property." In fact, Rep. Mike Rogers, the head of the House Intelligence Committee, seems to think this is the key charge, and argues (ridiculously) that the documents "belong to the people of the US" and that Snowden somehow "stole" them by giving the documents to those very same "people of the US."
Section 641 of Title 18 prohibits theft or receipt of stolen government information as well as theft of the documents, computer discs, etc., that contain the information. United States v. Fowler, 932 F.2d 306, 309-10 (4th Cir. 1991); United States v. Girard, 601 F.2d 69, 70-71 (2d Cir.), cert. denied, 444 U.S. 871 (1979); United States v. DiGilio 538 F.2d 972, 977-78 (3rd Cir. 1976), cert. denied sub nom. Lupo v. United States, 429 U.S. 1038 (1977). But see United States v. Tobias, 836 F.2d 449, 451 (9th Cir.), cert. denied, 485 U.S. 991 (1988). Nevertheless, for the reasons set forth below, the Criminal Division believes that it is inappropriate to bring a prosecution under 18 U.S.C. § 641 when: (1) the subject of the theft is intangible property, i.e., government information owned by, or under the care, custody, or control of the United States; (2) the defendant obtained or used the property primarily for the purpose of disseminating it to the public; and (3) the property was not obtained as a result of wiretapping, (18 U.S.C. § 2511) interception of correspondence (18 U.S.C. §§ 1702, 1708), criminal entry, or criminal or civil trespass.
There are two reasons for the policy. First, it protects "whistle-blowers." Thus, under this policy, a government employee who, for the primary purpose of public exposure of the material, reveals a government document to which he or she gained access lawfully or by non-trespassory means would not be subject to criminal prosecution for the theft. Second, the policy is designed to protect members of the press from the threat of being prosecuted for theft or receipt of stolen property when, motivated primarily by the interest in public dissemination thereof, they publish information owned by or under the custody of the government after they obtained such information by other than trespassory means.
And yet, the "theft of government property" seems to be central to the government's charges against Snowden, suggesting that, yet again, the administration is really grasping at straws in trying to charge Snowden with anything it can dig up for daring to blow the whistle on the surveillance program.
Okay, here's one that's just crazy. A few weeks ago, lots of folks, including us, covered the story of how the Justice Department claimed to a court that reporter James Rosen was "an aider and abettor and/or co-conspirator" in a leak of some State Department info concerning North Korea. He was none of the above. He was a reporter, but the DOJ was abusing its power in order to spy on his email and phone records, to try to find the source of the leak. Soon after that, it came out that the DOJ had been working overtime to make sure that the details of the surveillance of Rosen's communications was held under seal.
However, some are noticing an odd statement in the DOJ's filing to try to keep the case under seal. In what is likely a case of an overworked DOJ lawyer just cutting and pasting from a different attempt to keep some surveillance a secret, one of the motions to keep the search warrant sealed falsely claimed that Rosen was involved in a bombing, rather than just disclosing information on North Korea.
Somehow, if the DOJ can't even read its own motions to seal that carefully, you have to question if they really "considered alternatives less drastic than sealing," or if they were happy that throwing in key words like "responsible for the bombings" despite the case having nothing to do with bombings, only helped to keep it secret that they were spying on a the communications of a reporter, almost certainly in violation of the DOJ's own guidelines, and potentially in violation of the Constitution.
Fresh off of explaining why the President can use drones to kill Americans on American soil, Attorney General Eric Holder apparently feels emboldened to say just about anything to justify ridiculous government actions. The latest? Defending the Aaron Swartz prosecution at a Congressional hearing called by Sen. John Cornyn, who has already expressed his concerns over the prosecution.
As you might expect, Holder stuck with the official line that what the DOJ did in the Swartz case was perfectly reasonable. The key to his argument, as we've been hearing from others who defended the government's actions: the DOJ never intended to put Swartz in jail for 35 years. Also, apparently it was unfair of the media to use that 35 year number.
As I've talked to the people who have looked into this matter, these news reports about what he was actually facing is not consistent with what the interaction was between the government and Mr. Swartz. A plea offer was made to him of 3 months, before the indictment. This case could have been resolved with a plea of 3 months. After the indictment, an offer was made and he could plead and serve 4 months. Even after that, a plea offer was made, of a range of zero to 6 months, that he would be able to argue for a probationary sentence. The government would be able to argue for up to a period of 6 months. There was never any intention for him to go to jail for a period longer than 3, 4, potentially 5 month range.
These claims are not only misleading, but also total and complete bullshit. First off, if you never intended for him to spend more than 6 months in jail, and you're upset at the "media" for using the 35 year number... why is it that the DOJ's own press release on the arrest played up the 35 years:
AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.
I'm sorry, but you don't get to push that number around in your own damn press release and then whine and complain about how "unfair" it is that the media uses the number you gave them.
Separately, concerning the insistence that they never wanted him to spend more than 6 months in jail, they leave out the fact that this was only if Swartz agreed to plead guilty to multiple felonies. According to various reports, the DOJ, via Assistant US Attorney Steve Heymann made it clear that if Swartz did not agree to the plea, then he would seek somewhere around seven years in jail.
Cornyn goes on to ask about why the DOJ pursued the case even after the supposed "victim," JSTOR said it didn't want to have anything to do with the case. Cornyn specifically asks if it makes sense to threaten someone with 35 years in prison when the victim doesn't even seem to feel harmed by the situation. Holder than tries to spin this around and, incredibly, argue that the fact that they didn't pursue the full 35 years is an example of good prosecutorial discretion. Seriously.
Cornyn: The subscription service didn't support the prosecution. Does it strike you as odd that the government would indict someone for crimes that would carry penalties of up to 35 years in prison and million dollar fines and then offer him a 3 or 4 month prison sentence?
Holder: Well I think that's a good use of prosecutorial discretion. To look at the conduct, regardless of what the statutory maximums were, and to fashion a sentence that was consistent with what the nature of the conduct was. And I think what those prosecutors did in offering 3, 4, 0 to 6 was consistent with that conduct.
In other words, the only thing Holder is really saying here is that there was perfectly reasonable prosecutorial discretion if and only if Swartz agreed to a plea bargain in which he plead guilty to all felony charges against him. Basically, it's a "good use of prosecutorial discretion" to bully someone into pleading guilty to a crime they don't believe they've committed, and as long as they accept that, go to jail, and be okay with being labelled a felon for life, then there's no problem.
How do we let these people into positions of power?