Jehovah’s Witnesses Run Away From Bogus Copyright Claims After Judge Realizes They’re Just Trying To Intimidate Critics

Copyright

from the copyright-as-censorship dept

Earlier this year, we wrote about how the Watch Tower Bible and Tract Society, better known as the Jehovah’s Witnesses — despite a long history of litigating many, many important 1st Amendment cases — had thrown away its reputation as a staunch defender of free speech rights by massively abusing the DMCA 512(h) subpoena process to attempt to identify (and intimidate) critics of the religion.

In the last few years, Watch Tower had filed over 70 of these DMCA subpoenas, insisting that it needed to identify the alleged infringers in order to bring a copyright lawsuit. Of course, the real reason was almost certainly just to find out the names of the organization’s critics. This belief is supported by the fact that Watch Tower basically never followed up any of these subpoenas with the actual lawsuit it claimed it needed the information to bring.

Indeed, the case that we’re talking about here is the exception to the rule, and it appeared that Watch Tower only sued because a court agreed to quash the subpoena. Public Citizen Litigation Group’s Paul Levy represented the target of the lawsuit, using the pseudonym Kevin McFree, and the latest update is that the Jehovah’s Witnesses have turned tail and run right out of court, once they realized they were likely about to be in serious trouble for their abusive efforts to intimidate and silence a critic.

The full story is really quite a read. This is only a part of it but should give you plenty of reasons to want to read the whole thing.

During the hearing, Watch Tower’s counsel made the outrageous statement that Watch Tower’s litigation strategies were confined by a lack of “significant funds,” and that its approach to the litigation was guided by “significant economic motivations.” (bottom of page 18 of the transcript).  Because Watch Tower’s 990T forms are publicly available as required by law, it is a matter of public knowledge that Watch Tower has more than a billion dollars in assets. Watch Tower is fortunate that it never made this representation about limited resources in a signed document.

At our suggestion, the Court asked the parties to agree on a briefing schedule for the planned motion to quash, but that proved not to be possible because Watch Tower made clear that it was going to try to pursue discovery having nothing to do with its copyright claims. Rather, Watch Tower told us that it planned to use the infringement action to pursue the question of how McFree had obtained the previously unpublished videos. The Watch Tower headquarters is a leaky sieve and it wants to identify the leakers.  Beyond that, there may have been a massive hack of Watch Tower’s computer systems several years ago.  Watch Tower made clear that it was planning to seek discovery on those issues as part of its opposition to the planned motion to quash. It demanded a briefing schedule  that would have allowed it to postpone explaining how it could obtain McFree’s identifying information despite the res judicata defense until it had had the opportunity to pursue discovery.  At the same time, it told us that it was willing to drop its lawsuit with prejudice so long as McFree was willing to agree that he would never use any of Watch Tower’s materials before Watch Tower’s own publication of those materials without Watch Tower’s consent.

Of course, under the Supreme Court’s decision in Bartnicki v. Vopper, McFree has every right to use leaked unpublished materials, even if obtained from people violating a confidentiality contract, and even unpublished materials obtained by illegal hacking, so long as McFree had no involvement in the hacking. And although the possible hack of Watch Tower’s computer might well have been actionable under the Computer Fraud and Abuse Act, the statute of limitations on that cause of action expired years ago. So it became apparent that Watch Tower was trying to leverage a barred copyright claim, and the threat of identifying McFree, to obtain relief and or discovery on a different subject entirely – a possible abuse of process. McFree rejected this proposed settlement outright, and we warned Watch Tower that if it persisted in the litigation, we might file a document blocking it from a voluntary dismissal without prejudice, thus locking it into litigation that it was sure to lose.  We urge it to drop the case immediately.

And yet, interestingly, Watch Tower was not pursuing identical copyright claims against another YouTube user, Lloyd Evans (blogging as John Cedars), who used the same unpublished videos that McFree had used (and many more). Watch Tower did not go after Evans because it knew that he was not going to take any guff. Watch Tower represented that the reason it had pursued the anonymous Kevin McFree for his use of the unpublished 2018 video instead of filing an infringement action against Lloyd Evans was that it had not known of his use of such unpublished videos. In fact, Watch Tower’s inhouse counsel submitted an affidavit averring that Watch Tower did not learn about a a particular Cedars video until September 2020, when McFree mentioned the video in his papers.

But we learned, in the course of investigating the case, that Watch Tower sent Evans a demand letter in 2018 pertaining to his use of leaked and unpublished convention videos from that year. That letter cited the URL for Evans’ You Tube channel and made clear that Watch Tower was monitoring its content. It is hard to believe Watch Tower’s assertion that it did not know until 2020 about Evans’ use of the same material on which it was pursuing McFree.

And finally, in the course of investigating the case to prepare for briefing, we obtained useful information to address Watch Tower’s false assertion that it wanted to identify alleged infringers only for the purpose of pursuing copyright claims against them. Watch Tower succeeded in using a DMCA subpoena obtaining the identity of a previously identified blogger who specialized in attacking child abuse within the group, and Watch Tower’s refusal to report abuse to local authorities. Shortly thereafter, it initiated disfellowship proceedings against him. It is quite possible that Watch Tower did not need the information it obtained under the DMCA (because this blogger’s identifying information had become available elsewhere), but even so it never sued him for copyright infringement and it never otherwise used his identity to enforce its copyright. Watch Tower had got what it wanted — revenge.

The end result of all this, however, is that Watch Tower agreed to dismiss the lawsuit with prejudice, which also allows it to avoid claims to recover attorney’s fees. And there was a very real risk of having to pay up, as copyright is one realm in which the Supreme Court has been open to making frivolous lawsuit filers have to pay up.

While it may be disappointing that this case didn’t lead to a final ruling from the judge, hopefully by admonishing the Jehovah’s Witnesses for their longstanding abuse of the DMCA subpoena process, one hopes that how this case played out has been something of a warning to the group not to continue abusing copyright law to attack and silence critics. I assume, at least, that Paul Levy will continue watching.

Filed Under: anonymity, copyright, copyright subpoena, dmca 512(h), intimidation, kevin mcfree, paul levy, subpoenas
Companies: jehovah's witnesses, watch tower bible and tract society

Sen. Ron Wyden Catches ICE Illegally Collecting Americans’ Financial Data

(Mis)Uses of Technology

from the everybody-still-on-board-with-abolishing-this-national-embarrassment? dept

ICE wants data and doesn’t care how it gets it. Its recently-elevated pursuit of all things not considered naturally American has increased its demands for information on… well, everybody. It works with private sector data brokers and data analysts to hoover up location info — something not strictly limited to movements at or near borders. Nor is it limited to the non-Americans ICE believes should be tracked, captured, and ejected.

ICE has also gathered information collected by American utility companies, which includes customers’ names, addresses, cards/accounts used to pay bills, and usage records. This was also accomplished via a private party: the CLEAR database run by Thomson Reuters. ICE paid $21 million a year for access. It no longer has that access, thanks to pressure applied by Senator Ron Wyden.

ICE has shut down another data collection because Wyden started asking questions. And this collection may very well have been illegal. Using only self-issued administrative subpoenas, ICE was able to obtain millions of financial records from two money transfer companies, Western Union and Maxitransfers Corporation.

The EFF has more details in this post:

Beginning in 2019, HSI [Homeland Security Investigations — a division of ICE] sent eight administrative subpoenas to these financial services companies asking that they turn over all records for money transfers over $500 to or from California, Texas, New Mexico, Arizona, and Mexico. Each administrative subpoena sought records for six-months at a time. In response, Western Union and Maxi provided 6.2 million financial records, including personal information such as names and addresses, to HSI. All of the information was entered into a database called Transaction Record Analysis Center (TRAC), which is run by a non-profit and facilitates law enforcement access to bulk financial data for 5 years.

Once again, Wyden’s pressure has resulted in a change.

According to Sen. Wyden, HSI terminated the program in January 2022 after his office contacted HSI about it.

But that’s not good enough for Wyden. His letter [PDF] wants more answers from ICE, leveraging its hasty abandonment of the program against it. It’s an illegal collection, as the EFF explains:

[T]his kind of bulk surveillance is illegal. By statute, these administrative subpoenas must seek records “relevant” to an agency investigation. Simply put, there is no way these broad requests for bulk records would turn up only documents “relevant” to specific investigations; instead it put everyone who transferred money, including U.S. persons, under surveillance.

From Wyden’s letter:

[T]he fact that HSI employees in Phoenix, AZ continued to send out these highly problematic |bulk summonses, every six months, without oversight by HSI and DHS headquarters indicates a weakness in the central supervision of this surveillance tool. Moreover, the fact that just one request fora briefing from a Senate office prompted HSI to immediately halt the flow of data suggests that the internal oversight system within DHS and HSI failed.

This is far from the only problematic aspect of this program. For one thing, the program ran for years prior to ICE’s adoption of the questionable bulk surveillance. An agreement between Western Union and the Arizona Attorney General in 2010 over money laundering allegations opened up this firehose, providing millions of transaction records from 2010 to 2019 — all of which could be accessed by federal, state, and local law enforcement agencies without any judicial approval.

According to HSI, this agreement expired in 2019. That’s when ICE took over, demanding the same production for the next two years. In 2021, ICE expanded these demands to include Maxitransfers. Those actions resulted in ICE obtaining more than 6 million financial records — something it managed to accomplish using only eight self-issued subpoenas. This is classic bulk surveillance, Wyden points out. There’s no way all six million records were “relevant” to HSI investigations.

His letter points out HSI’s February 2022 testimony resulted in members of its Congressional oversight hearing about the long-running program for the first time. And ICE’s internal oversight was bypassed as well, according to HSI’s own statements.

While HSI told my staff that the Special Agent in Charge of HSI Phoenix spoke to the HSI Assistant Director of Investigative Programs and with an attorney in the field office before issuing the first summons, no one sought legal guidance from HST or DHS headquarters and HSI never wrote or published a Privacy Impact Assessment analyzing this program. Indeed, HSI officials acknowledged that they only alerted DHS privacy officials after my office contacted HS to request a briefing about the program in January 2022.

Wyden says he’s all for engaging in legitimate law enforcement activity to stop money laundering and drug trafficking. But this ain’t it. This is an illegitimate and illegal bulk collection that was hidden from ICE’s multiple levels of oversight. It also allowed ICE to keep doing the sort of things that have many calling for it to be abolished… like disproportionately targeting minorities, low-income families, and immigrants who often utilize services like these because traditional banking options aren’t available.

If ICE wants to fight money laundering and stymie drug cartels, it needs to do better. And it needs to play by the rules.

Instead of squandering resources collecting millions of transactions from people merely because they live or transact with individuals in a handful of Southwestern states or have relatives in Mexico, HSI and other agencies should focus their resources on individuals actually suspected of breaking the law.

Hastily killing the illegal program isn’t going to stop Wyden from demanding answers. While it’s great the program is now dead, the flipside is that there’s likely another, equally-problematic program still in operation. It just hasn’t been uncovered yet.

Filed Under: clear database, databases, dhs, financial information, hsi, ice, ron wyden, subpoenas

The Curious Case Of Billionaire Brian Sheth, An Anonymous Tweeter, Copyright Law, Twitter, And Some Company That Barely Seems To Exist

Legal Issues

from the wtf-is-going-on-here? dept

Techdirt regular John Roddy highlighted a truly bizarre fight happening in a California court that may or may not involve billionaire Brian Sheth. Sheth was a cofounder of the high-flying Vista Equity Partners, and left it a year ago in a high profile exit, after the firm’s other cofounder, Robert Smith, entered into a non-prosecution agreement with the DOJ and agreed to pay $139 million and “abandon” $182 million in deductions, related to charges of tax fraud. In the Forbes link above, Sheth claims he sought to have Smith leave Vista following this revelation, but “Smith prevailed” and so Sheth left. Nothing in that article makes Sheth look particularly bad.

However… an anonymous Twitter user @CallMeMoneyBags has been tweeting criticism of lots of folks involved in the private equity space, including Brian Sheth. A year ago, just about the same time that Sheth left Vista, MoneyBags tweeted a bunch of tweets referring to Sheth, and including snapshots of women who were sometimes scantily clad. The text of the tweets wasn’t particularly bad. One of them just says “Brian Sheth is the King of Private Equity” with some hashtags:

Some of the tweets could be read obliquely to suggest infidelity:

You’ll notice that the screenshots of those tweets show the media disabled over a copyright claim, and that’s the next stage of this mystery. An entity called “Bayside Advisory LLC,” which barely seems to exist, sent Twitter a copyright infringement notice for the images in those tweets, and then immediately filed a DMCA 512(h) subpoena to Twitter demanding that it identify the person behind @CallMeMoneyBags.

Twitter, properly moved to quash the subpoena, noting that this was all highly sketchy, and that the standard to force the disclosure of an anonymous poster is quite high, and it was not met here. Twitter rightfully noted that it was also somewhat perplexed by who the hell Bayside Advisory LLC was, and whether it had any connection to Sheth:

None of the Tweets mention Bayside…. Twitter?s counsel has attempted to learn the connection between Bayside and Sheth or the images at issue but has been unsuccessful…. Bayside does not appear to be registered to conduct business in California, and public searches of Bayside reveal only an Ohio real estate holdings company with no apparent connection to Sheth and no specialization in creating or acquiring copyrights of candid photographs.

There’s been a fair bit of back and forth, but to summarize, Twitter argues (correctly) that the 1st Amendment protects anonymity. “Bayside” (whoever that is) argues back (misleadingly) that copyright infringement is not protected by the 1st Amendment. Twitter argues (correctly) that fair use is not infringement, and Bayside argues that it’s not fair use. Twitter then argues again that (1) it is fair use, and (2) even if it’s not fair use, Bayside doesn’t meet the very high bar to expose an anonymous social media user.

Throughout all of this Bayside keeps insisting that it has no connection to Sheth at all and is merely a concerned copyright holder trying to police infringement. This seems exceedingly difficult to believe. However, the company filed a disclosure insisting that there were no other parties of interest in this case, and says that Twitter is wrong in implying that Sheth or someone connected to him are trying to expose MoneyBags:

Twitter falsely claims that Bayside is attempting to unmask a Twitter user (?MoneyBags?) for commenting on a newsworthy billionaire, thereby chilling MoneyBags? First Amendment speech. (Dkt. 13 at 5). Bayside is not. As was clear in its opposition to the motion to quash (Dkt. 9), Bayside seeks the identity of a copyright infringer pursuant to the DMCA. The First Amendment does not afford protection for copyright infringement, nor are copyright infringer identities protected from disclosure by the First Amendment. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985); Arista Records, LLC v. Doe 3, 604 F.3d 110, 118 (2d Cir. 2010). Bayside has never requested MoneyBags? tweets be removed. The commentary in those tweets remained after Bayside?s DMCA notice, and their textual comment is of no concern to Bayside. What is of great concern to Bayside is the unauthorized use of several of its copyrighted Photographs simply as an illustrative aid to those tweets, which does not constitute fair use.

Elsewhere, Bayside is even more emphatic that it has nothing to do with Sheth:

?the photos are exclusively and solely owned and controlled by our client Bayside Advisory LLC, the photos are registered with the United States Copyright Office reflecting that Bayside is the sole owner, Mr. Sheth never had any ownership or control interest in the photos and that Mr. Sheth does not own or control any interest in Bayside.?

For what it’s worth, it does appear that Bayside Advisory LLC, using a US Postal Service postal box based in Menlo Park, California, did in fact file a copyright registration for six photos after MoneyBags posted the tweets. The registration claims that two of the photos (registered as a “group”) were “published” in 2017 and the four others (also registered together as a group) were “published” in July of 2020. In those registrations, Bayside names Brenda Diaz as the photographer of all six photos. Notably, Bayside insists that protecting copyright is part of what it does:

Contrary to Twitter?s baseless conjecture, Bayside is a communications and strategic advisory firm that, among other things, advises and partners with creators, artists, and entrepreneurs to protect, promote, and champion creative expression. Bayside owns a catalog of photographs (the Photographs are only a small part of the catalog) to exploit for those purposes. What Twitter is attempting to do with its motion to quash is diminish the rights of copyright holders by forcing them to navigate the court system and fight diligently, and at great cost and expense, to get basic information about those who infringe their copyrights.

That would be a hell of a lot more compelling if… the two registrations at issue here weren’t the only two registrations for published works that Bayside Advisory has. Earlier this summer (many, many months later) Bayside Advisory did register two more groups of unpublished photographs, but the idea that these photos are “only a small part of its catalog” is, at the very least, not clearly seen in its copyright registration practices.

Now, many months later, the judge has finally issued an order… which only punts the matter for the time being. Basically, the judge says it doesn’t have enough info about @CallMeMoneyBags’ use of the photos to determine whether or not they are protected by fair use, because MoneyBags is not a party here and hasn’t filed anything on his (or her) behalf. So the court says that it has to hear from MoneyBags in order to get the full record and make a fair use determination, and whether or not MoneyBags’ anonymity should also be protected:

To the extent the court must reach the issue of whether @CallMeMoneyBags?s use of the photos constitutes fair use, it lacks a well-developed record on which to base any ruling. … In this case, Twitter states that ?[i]t appears the anonymous Twitter user here posted those candid photographs for the purpose of criticizing or satirizing Sheth.? Mot. to Quash 12. Twitter speculates. The purpose and meaning of the tweets is not clear. They include hashtag references which are not obvious. Evidence regarding the user?s purpose and intended meaning is likely available only from the individual(s) who posted the tweets. … The facts relevant to the first factor may also impact the third, which examines ?the amount and substantiality of the portion used in relation to the copyrighted work as a whole.?… As the Supreme Court has explained, when examining the third factor, ?the enquiry will harken back to the first of the statutory factors? because ?the extent of permissible copying varies with the purpose and character of the use.?

Additionally, to the extent the court determines it is necessary and appropriate to ?balance ?the magnitude of the harms that would be caused to the competing interest by a ruling in favor of [Bayside] and by a ruling in favor of [Twitter and the user of the @CallMeMoneyBags account],?? the court lacks sufficient information to do so…. As noted, Twitter contends that unmasking @CallMeMoneyBags ?may invite social ostracism, expose them to harassment, or prevent future employment opportunities,? but this too is speculative.

Accordingly, the court shall give the user(s) of the @CallMeMoneyBags account an opportunity to provide information supporting the foregoing inquiries, including evidence regarding any claim of fair use of the photos and the harms that could result if the court rules in favor of Bayside on the motions to quash and to compel. Twitter shall immediately serve a copy of this order along with the complete briefing on Twitter?s motion to quash and Bayside?s motion to compel on the email address associated with the @CallMeMoneyBags account, and file a declaration attesting to the same by November 10, 2021. By no later than December 10, 2021, the user(s) of the @CallMeMoneyBags account may specially appear and file evidence regarding fair use and/or the harms that may result if the court denies the motion to quash and grants the motion to compel. The user(s) may appear anonymously for the purpose of submitting such evidence. The court will take the matter under submission after December 10, 2021.

Twitter has since told the court that it has sent this ruling to @CallMeMoneyBags, and one hopes that MoneyBags can find himself (or herself) a decent lawyer who understands both fair use and anonymity…

And, of course, there’s a lot that’s perplexing here. The most obvious candidate for wanting to identify MoneyBags would be Sheth, but Bayside is emphatic (in its court filings) that it’s not Sheth, but it’s not at all clear who is actually behind Bayside or what Bayside actually does. But if it’s not Sheth, then who would be so insistent on finding out who is behind the account, and spending what appears to be significant amount on a lawyer who used to run legal affairs for Universal Music Publishing Group? That’s not how most people react to random snapshots being placed on Twitter. It’s possible that it’s somehow connected to the photographer, Diaz, but, if so, why did she hand over just those six images to Bayside to register and fight this fight? It’s all… very perplexing.

Either way, kudos to Twitter for (1) fighting for the right to post anonymously, to criticize people while doing so, and (2) fighting for fair use.

Filed Under: 512h, anonymity, brenda diaz, brian sheth, callmemoneybags, copyright, criticism, dmca 512, first amendment, identity, social media, subpoenas
Companies: bayside advisory, twitter

California Prosecutors Are Still Trying To Get Signal To Hand Over User Info It Simply Doesn't Possess

Legal Issues

from the keep-burning-that-toner,-g-men dept

Encrypted messaging app Signal is slowly educating federal prosecutors on the meaning of the idiom “blood from a stone.” Usually this refers to someone who is judgment-proof (or extortion-proof or whatever), since you can’t take money a person doesn’t have.

This would be the digital equivalent. Prosecutors in California have tried three times this year to obtain data on Signal users that Signal never collects or retains. Issue all the subpoenas you want, Signal says, but don’t expect anything to change. We can’t give you what we don’t have. (h/t Slashdot)

Here we are in the second half of 2021, Signal still knows nothing about you, but the government keeps asking.

Because everything in Signal is end-to-end encrypted by default, the broad set of personal information that is typically easy to retrieve in other apps simply doesn’t exist on Signal’s servers. Once again, this request sought a wide variety of information we don’t have, including the users’s name, address, correspondence, contacts, groups, call records.

As usual, we couldn’t provide any of that. It’s impossible to turn over data that we never had access to in the first place. Signal doesn’t have access to your messages; your chat list; your groups; your contacts; your stickers; your profile name or avatar; or even the GIFs you search for. As a result, our response to the subpoena will look familiar. It’s the same set of “Account and Subscriber Information” that we can provide: Unix timestamps for when each account was created and the date that each account last connected to the Signal service.

That’s it.

That handles one request from prosecutors in Santa Clara County, California. Another one was greeted with the same response a few days later — this time from the Central District of California. Apparently the lesson wasn’t learned back in April, when the same district made the same request for data and got the same answer from Signal. Two grand jury subpoenas and one search warrant later and the answer remains the same.

The search warrant had a few more wrinkles of the government variety, even if the end result was Unix timestamps. According to the Signal post, the government attached a gag order to this warrant and renewed it four times while being told by Signal that the company had nothing more to turn over in response. There was nothing remotely adversarial about this process. The government made four secrecy requests, got all four granted — all without acknowledging Signal’s motion to unseal. The court also refused to schedule a hearing or even return phone calls from Signal’s legal reps.

It seems like the government will keep trying, though. Signal doesn’t get hit with many requests for user info, but prosecutors spending the public’s money seem willing to define insanity through their ineffective actions. And for companies providing encrypted communications, the best way to protect users is to gather as little info about them as possible. When the government comes knocking, it’s sometimes best to have nothing to give it.

Filed Under: california, encryption, privacy, prosecutors, subpoenas
Companies: signal

Report Shows ICE Is Demanding Subscriber Info It Has No Legal Right To With Self-Issued Subpoenas

Privacy

from the snatch-it-baby-coz-I-can dept

Just because your service provider is willing to notify you of the government’s (perhaps unexpected) interest in all your digital belongings doesn’t mean there’s someone standing between you and the government’s flimsy piece of administrative paper.

A recent report by the Los Angeles Times — based on notifications from service providers about government demands for data — shows there’s not much that can stop the government from obtaining a bunch of info with almost zero judicial oversight. Email notifications from Google shared with journalists show just how powerless end users are when confronted with government demands for data. Sure, notification is nice, but it’s not all that helpful.

The government has almost unlimited power to make requests for data. The people they serve, however, are subject to demands that cannot possibly be met.

In one email The Times reviewed, Google notified the recipient that the company received a request from the Department of Homeland Security to turn over information related to their Google account. (The recipient shared the email on the condition of anonymity due to concern about immigration enforcement). That account may be attached to Gmail, YouTube, Google Photos, Google Pay, Google Calendar and other services and apps.

The email, sent from Google’s Legal Investigations Support team, notified the recipient that Google may hand over personal information to DHS unless it receives within seven days a copy of a court-stamped motion to quash the request.

The government — in this case, ICE — prints out an administrative subpoena, something that doesn’t require judicial approval to send out to third parties storing user data. You, however, need to run to court to block it. And you need to do it in less than a week. The government says “give.” And citizens are expected to find representation or just make the most of their Google searches for “quash” in less than seven days or their service providers will feel “compelled” to hand over all kinds of information to government employees engaging in self-approved fishing expeditions.

And, as if this barrier to due process entry wasn’t enough, notification from service providers generally doesn’t include handing over the underlying document. People are expected to approach federal courts with almost zero information in hopes of denying the government its request for information. And it’s a lot of information — at least in the case viewed by the LA Times.

The email from Google did not include a copy of the legal request. Upon requesting it, the recipient learned it was an administrative subpoena from the U.S. Immigrations and Customs Enforcement agency. ICE was looking for the names, email addresses, phone numbers, IP addresses, street addresses, length of service such as start date, and means of sources of payment linked in any way to the Google account.

Where’s my bulwark against encroaching government interests, you might ask? The answer will not surprise you. It’s mainly you with the occasional assist from service providers. To be fair, some service providers are better than others at rebuffing data demands that arrive without judicial approval. But, for the most part, users are still on their own. According to its own transparency reports, Google hands over data 83% of the time. Facebook does it 88% of the time. Twitter is a relative rebel, handing over data at only a 59% clip.

If most of these requests were warrants and court orders, great. If not, there’s still a lot of work that needs to be done. On the relatively brighter side, some users are at least being notified the government is coming for their bits and bytes.

That’s where administrative subpoenas act as their own form of restraint on government overreach. To obtain a gag order that prevents notification of targeted users, government agencies generally must get a court order. Using their own in-house paperwork means they can’t prevent service providers from notifying users of the government’s interest. That doesn’t mean agencies won’t add bullshit boilerplate to subpoenas that implies it would be illegal to notify end users. They still will. It just means they can’t do anything about it when tech companies let end users in on the government’s attempted secrets.

And they can’t do what ICE did here. ICE demanded a wealth of information with its administrative subpoena. These subpoenas can only be used to request basic subscriber information. The one seen by the LA Times goes far beyond those limits, requesting Google hand over emails addresses, names, phone numbers, and financial info.

Hopefully Google only turned over what ICE could legally obtain with its flimsy paperwork, if it decided it was obligated to turn over anything at all. But this shows what the government will try to do in the perceived absence of pushback. It knows no end users are capable of securing a court order quashing these subpoenas in seven days. And it knows it can’t request the information it’s requesting. But it will do it anyway because the odds are still in its favor and bypassing the judicial branch means no one’s going to benchslap it for breaking the rules or deny its requests as overbroad.

Filed Under: 4th amendment, administrative subpoenas, ice, privacy, subpoenas
Companies: google

Twitter Moves To Quash Fishing Expedition Subpoena For Info On Devin Nunes Cow By Devin Nunes' Lawyer In Unrelated Case

Legal Issues

from the good-for-them dept

Last week, we wrote about the details of how it appeared that Devin Nunes’ lawyer, Steven Biss, appeared to be using his subpoena power to try to unearth the identity of the parody account for “Devin Nunes Cow” in a totally unrelated case. I’m kind of amazed that no one else has really picked up on this story, because it’s crazy. Biss has been representing Nunes in his various (highly questionable) defamation lawsuits, including the very first, which was focused on trying to expose a couple parody accounts that mocked Nunes, a Congressional Representative who really needs to grow some thicker skin. We’ve highlighted how much of Nunes’ activity in that case in particular appears to be a fishing expedition to find out the identities of some of his critics.

What was so crazy about the story last week was that this new subpoena, sent to Twitter and seeking out information (including direct messages) from a variety of Twitter accounts, including @DevinCow, was in a totally unrelated case (the details of which are complex, and we tried to cover in that original post). As we highlighted, there were a bunch of questions raised by this — first, sending a subpoena to Twitter to access someone’s DMs is ridiculous. It would violated the Stored Communications Act. Twitter is barred from handing out such communications via civil subpoena. The correct process for Biss, if those communications are so vital to his case, would be to subpoena the users directly. But, of course, that would tip them off. The next big problem was that it appeared that at least two of the names on the list of Twitter accounts that were subpoenaed (and possibly more) had no connection whatsoever with the case at hand, involving a dispute between a well known lawyer and a well known PR executive. But they were relevant to the Devin Nunes suit.

On Tuesday, Twitter stepped in a filed a scathing motion to quash the subpoena, noting “a litany of substantive defects.”

The Subpoena suffers from a litany of substantive defects and must be quashed. First, the Subpoena seeks identifying information of pseudonymous Twitter accounts without satisfying the established First Amendment requirements for unmasking anonymous online speakers… Second, it violates the federal Stored Communications Act (“SCA”)… by commanding Twitter to disclose the contents of communications…. Third, it imposes an undue burden on Twitter by commanding it to produce document that could be obtained from a party to the lawsuit…. Fourth, and finally, the Subpoena imposes an undue burden on Twitter by demanding information that is irrelevant to the underlying action.

That last one is the understated way of pointing out that Biss is trying to subpoena people totally unrelated to this case. The motion makes the issue explicitly clear:

But the Subpoena is not merely defective and unlawful. One of its demands–for identifying information about the Twitter account @DevinCow–also appears to have been made for an improper purpose: to end-run around discovery disputes in an unrelated lawsuit. Nothing about the Fitzgibbon Litigation suggests that the @DevinCow account is in any way relevant to its claims or counterclaims–indeed, no reference to the account appears anywhere in any pleading. The anonymous speaker @DevinCow, however, has been named as Twitter’s co-defendant in another, unrelated state-court action in which Fitzgibbon’s counsel, Mr. Steven S. Biss, represents a different plaintiff…. Mr Biss has repeatedly sought in that other action, without success, to force Twitter and others to disclose information that might bear on the identity of @DevinCow, i.e. the very same information he is now demanding from Twitter through the Subpoena at issue here. The Subpoena’s demand for @DevinCow’s account-opening information thus appears to be an attempt to bypass the discovery process in Nunes. Such gamesmanship heightens the need for this Court to swiftly quash the Subpoena.

The motion goes on to detail the many times and many ways in which Biss has tried to unmask @DevinCow throughout the lawsuit.

It also notes that Twitter’s lawyer directly raised these issues with Biss and “Mr. Biss refused to withdraw the Subpoena” and that he pointed them to two tweets made by the defendant in this case, lawyer Jesselyn Radack, replying to @DevinCow. However, as Twitter notes, neither of those had anything to do with the plaintiff in this case, Fitzgibbon. And, considering the main points of this case are (fairly questionable) claims that Radack was conspiring with others on Twitter to defame Fitzgibbon, it seems like any such tweets would need to relate to Fitzgibbon in some manner. Later, Biss agreed to narrow the subpoena to get around the Stored Communications Act issue, saying Twitter could black out the details of communications, but he still wanted to see the metadata. And then there’s this:

Counsel for Fitzgibbon asserted both that those 17 accounts, including @DevinCow, are “obviously” relevant to the Fitzgibbon Litigation, and that he has evidence indicating that @DevinCow has privately communicated with Radack via the Twitter platform… But he flatly refused Twitter’s requests that he substantiate those assertions.

It then goes through all the many other reasons for the subpoena to be quashed, and then says that the court should award Twitter fees and costs.

The awarding of fees and costs is particularly appropriate where, as here, “a party issues a subpoena in bad faith, [or] for an improper purpose.”

It will be interesting to watch what comes next. Also, if the court does award fees, I wonder who will be paying them? There have already been questions about who’s been funding Nunes’ lawsuits. Would Fitzgibbon have to pay the fees because his lawyer tried to use his case to fish for info in another case? Is that the kind of representation that Fitzgibbon wants?

Filed Under: anonymity, devin nunes, devincow, fishing expedition, jesselyn radack, steven biss, subpoenas, trevor fitzgibbon
Companies: twitter

Is Devin Nunes' Lawyer Using Questionable Subpoenas In An Unrelated Case To Seek Info On Satirical @DevinCow Account?

Legal Issues

from the what-a-bizarre-case dept

Buckle up, because here’s a wild one. Over the weekend, a ton of people sent me a tweet from “The Sparrow Project” that many people took to mean that Rep. Devin Nunes — the Congressional Representative who spent much of 2019 filing highly questionable SLAPP suits against news organizations, journalists, political operatives, critics, and, most famously, a satirical internet cow — has issued a highly questionable subpoena for The Sparrow Project’s private Twitter DMs.

However, while that tweet may have implied it was Nunes, it is not. The case merely involves Nunes’ lawyer, Steven Biss, who is the lawyer in a separate case. But there are many oddities involved in this subpoena — and Nunes’ cases may be tangentially connected in a manner that seems to raise more questions about Biss’ legal strategy. Before we go any further, however, I will say that the case that the subpoena comes from is a messy one. I am not going to go into all of the background here — hopefully just enough to understand the nature of this subpoena — but I will note that there are many people on both sides of this case who seem to feel fairly confident about what happened between two people, when the truth is only those two people know what really happened, so I will not take any position on the specific claims underlying the two cases at issue. There are also a bunch of people floating trollish conspiracy theories — again, on both sides — and if you want to waste a lot of time around a lot of nonsense, there are some rabbit holes to go down, most of which will frustrate and confuse you. I don’t recommend that.

The case stems from accusations that lawyer Jesselyn Radack, who has represented Ed Snowden and other whistleblowers, made regarding Trevor FitzGibbon, who ran a PR firm that represented Wikileaks, Chelsea Manning, The Intercept and some other well known organizations. In 2015, FitzGibbon’s PR firm shut down following allegations of sexual harassment and assault. In 2018, after it was reported that no criminal charges would be brought against FitzGibbon, he (with Biss as his attorney) sued Radack, claiming she defamed him in saying that he sexually assaulted her. You can read the (redacted) amended complaint and follow the rest of the docket, but it gets pretty salacious and a lot of accusations are thrown back and forth and you don’t really need to know those details to understand the issue we’re discussing here, so I won’t point you directly to them.

What matters in this instance is that after a fairly contentious process, the two parties settled in May of last year. It is also at least worth noting that the court held Radack in contempt, which highlights at least some of the contentiousness of the proceedings. Separately, because the original complaint (which was later sealed in part because of this) in the original case apparently included somewhat revealing photos that FitzGibbon claimed Radack had sent him (part of his effort to show whatever relationship they had was consensual), Radack separately sued FitzGibbon, claiming that his filing violated Virginia’s revenge porn law.

A month after FitzGibbon’s first case against Radack was settled, he sued Radack again, claiming that (among other things) she had breached the settlement agreement from the original case, and tacking on new defamation claims. The original settlement agreement appears to have included clauses saying that they wouldn’t talk about each other on social media, and also that they wouldn’t “direct, request, encourage, entice, procure or otherwise cause any third party…” to post on social media about the other.

In the new case, FitzGibbon (again using Biss as his lawyer), alleges that Radack did use social media to talk about FitzGibbon, and suggests that since many others, including followers of Radack, have tweeted about him, it violates the clause not to encourage (etc.) others to do so. This starts with Radack’s very first tweet after settling the case, in which she (as per the settlement) posted a short tweet noting that the original case had been settled and she wanted to “retract and withdraw every allegation and statement I have ever made against Trevor Fitzgibbon.” Some supporters of Radack responded to that tweet with statements against FitzGibbon, which the lawsuit argues breaches the settlement agreement.

It also highlights a bunch of other tweets by Radack, some of which it claims are defamatory, even though they seem quite general, don’t mention FitzGibbon, and could easily be about someone else entirely. Just a few examples of tweets called out in this follow up lawsuit that seem like a huge stretch:

It seems pretty difficult to argue that those either breach the agreement or that they are defamatory towards FitzGibbon. The complaint does go on to assert “common law conspiracy” claims because other accounts started tweeting things about FitzGibbon that might reach the level of defamation. I won’t repost them here, but those tweets do make direct claims about FitzGibbon, and if they are false, and were posted with knowledge of their falsity, might possibly qualify as defamation. Of course, the knowledge of their falsity or making the statements with “reckless disregard for the truth” (the standard for actual malice necessary to make a defamation claim) seem like a pretty high bar that would be difficult to reach.

Radack has asked the judge to dismiss much of the case on jurisdictional grounds and for failure to state a claim (basically saying that even if everything claimed is true, it still doesn’t violate the law). Frankly, I find that her argument for the 12(b)(6) failure to state a claim is pretty convincing, and FitzGibbon/Biss’ opposition motion to be pretty weak. It spends a lot of time arguing why there are some cases where opinion can be defamatory, and then highlights how some of the tweets from other people appear to be defamatory, but makes little effort to show how that makes her statements defamatory.

And that finally brings us around to the tweet at the top that is the reason for this post. If Biss could show that Radack did, in fact, communicate with others to make public statements about FitzGibbon, then at the very least you could argue that it was a breach of the settlement agreement. And, thus, one could make an argument that there are some reasonable situations in which such communications could be subpoenaed as part of the discovery process, to determine whether or not Radack had, in fact, breached the contract, and somehow encouraged others to say things publicly about FitzGibbon.

But, that possibility of situations existing where it might make sense to seek discovery of such communications is about as far as I’ll go in giving Biss any credit here. Because almost every other part of what’s been made public so far is problematic. First of all, the subpoena is to Twitter, and not to the individuals involved in any communications:

That’s a problem on multiple levels, including that the Stored Communications Act literally forbids this kind of subpoena. While most people know of the SCA as it concerns government requests for communications, it also bars internet service providers from revealing content information to private actors in civil suits. So, even if there were legit reasons to seek these communications, sending a subpoena to Twitter is not how this should be done.

But the more concerning part is that the subpoena targets the communications of 21 different Twitter accounts, and many of them claim to have no connection at all to Radack, and at least two of the accounts in the subpoena that have no known connection to Radack are connected to Nunes’ lawsuits. Specifically, the subpoena seeks communications from the now famous @DevinCow account, as well as political strategist @AdamParkhomenko, who was subpoenaed in one of the Nunes’ cases, and who made some news by filing quite a motion to quash in that lawsuit.

So…. what the hell are they doing in this subpoena on a totally unrelated lawsuit? As far as I can tell in going through the dockets of both cases: absolutely nothing. Perhaps there’s some reason for it somewhere, but in looking through everything I can find no clear connection. Radack and Parkhomenko, for example, seemed to only start communicating after she alerted Parkhomenko to the existence of what appears to be this same subpoena on Christmas. Radack’s tweet at the time went mostly unnoticed, though Adam did respond over a week later to her. As for the DevinCow account, there appears to be absolutely no obvious or public connection between Radack and DevinCow, and no reason to include that account here. Indeed, in responding to a question from myself, DevinCow told me that it has “no connection” to Radack and is “not even sure what is behind all of this craziness.”

Based on that, it’s extremely unclear why those two accounts (and possibly others) are included in the subpoena. And, given that the identity of DevinCow, in particular, is so important in Nunes’ case, you can see how the inclusion of that account and some others may raise some eyebrows about just what is going on here. So, while many people may have misinterpreted the original Sparrow Project tweet to suggest it involved a Nunes case, the subpoena in question is technically from a totally different case, not officially involving Nunes. It’s just the same lawyer for both cases. But, it should raise some serious questions as to why the (mis-targeted) subpoena in the Radack case is being used to target communications that appear unrelated to the Radack case, but potentially of significant interest to a totally different case involving the same lawyer.

Filed Under: adam parkhomenko, breach of contract, communications, defamation, devin nunes, devincow, direct messages, free speech, jesselyn radack, sca, steven biss, stored communications act, subpoenas, the sparrow project, trevor fitzgibbon
Companies: twitter

Congressional Reps Targeting Homegrown Terrorism Are Pushing A Bill That Would Allow Congress To Subpoena Citizens' Communications

Privacy

from the hey-internet-rando,-the-government-wants-to-know-what-you've-been-talking-ab dept

In the name of securing the homeland, Congressional reps are tossing around the idea of regulating online speech. This isn’t the first effort of its type. There’s always someone on Capitol Hill who believes the nation would be safer if the First Amendment didn’t cover quite so much speech. But this latest effort is coming directly from the Congressional committee that oversees homeland security efforts, as the Hill reports.

Civil liberties and technology groups have been sharply critical of a draft bill from House Homeland Security Committee Democrats on dealing with online extremism, saying it would violate First Amendment rights and could result in the surveillance of vulnerable communities.

The whole thing sounds a bit innocuous. At first. The bill would create a bipartisan commission to develop recommendations for Congress to address online extremism. The committee would have to balance these recommendations with existing speech protections. But it’s easy to see how certain inalienable rights will become more alienable if this committee decides national security interests are more important than the rights of the people it’s securing.

When you get into the details, you begin to see how this isn’t really about making Congress do more to address the problem. It’s about regulating online speech via Congressional action. The end result will be censorship. And self-censorship in response to the chilling effect.

The government-appointed body would be given the power to subpoena communications, a sticking point that raised red flags for First Amendment advocates concerned about government surveillance.

A source familiar with the legislation told The Hill they were immediately concerned that the subpoena power could be abused, questioning whether it would unintentionally create another avenue for the government to obtain private conversations on social media between Americans.

The draft bill would require companies to “make reasonable efforts” to remove any personally identifiable information from any communications they handed over. But that provision has not satisfied tech and privacy groups.

This isn’t about moderating public posts on social media platforms. It will likely end up affecting those eventually, but the draft bill appears to allow the committee to target personal communications, which are usually private. Whether or not there are robust protections in place to strip identifying info doesn’t really matter. A Congressional committee with the power to subpoena the communications of people not actually under investigation by the committee isn’t the sort of thing anyone should be encouraging, no matter the rationale.

Social media platforms have been doing more to address concerns of online radicalization, but their efforts never seem to satisfy political leaders. The efforts have routinely resulted in collateral damage, not the least of which is the removal of evidence of criminal activity from the internet.

Moderation at scale is impossible. The imperfections of algorithms, combined with the human flaws of the thousands of moderators employed by social media platforms, has turned online moderation into a mess that satisfies no one and does harm to free speech protections. Any Congressional rep with the ability to perform a perfunctory social media search can find something to wave around in hearings about online radicalization and internet companies’ unwillingness to clean up the web. It doesn’t mean they’re right. It just shows it’s impossible to satisfy everyone.

In this case, the Congressional committee appears to be targeting white nationalist extremists. Just because the target has shifted to homegrown threats doesn’t make the proposal any less dangerous. Even if it never results in the subpoenaed harvesting of communications, it could still encourage the federal government (and the local agencies that work with it) to expand existing social media monitoring programs. These also utilize imperfect AI and flawed humans. And they will also result in the over-policing of content. Unfortunately, these efforts will utilize actual police, so it’s not just the First Amendment being threatened.

Filed Under: 4th amendment, communications, congress, moral panic, online extremism, privacy, subpoenas, terrorism

The Attorney General Who Doesn't Respect Or Comply With His Oversight Wants Citizens To Respect And Comply With Cops

Legal Issues

from the enforcing-hypocrisy-from-the-top-down dept

The “law and order” administration is flexing its muscles. New Attorney General William Barr has been particularly vocal since his appointment, going after device encryption and the supposedly-dangerous “disrespect” for police.

Barr’s public statements — the latter of which was delivered to a very receptive audience composed of police union reps — have made it clear his DOJ is going to carry out Trump’s back-the-blue mandates. Law enforcement officers will receive the federal government’s seal of endless approval, as well as its benefit of a doubt when things go badly.

Things go badly quite often. Cops are still killing more than 1,000 people (and nearly 10,000 dogs) every year, even as crime rates remain at historic lows. Barr’s message to America was: comply, shut up, stop complaining. If you do somehow still feel your rights have been violated, you’re welcome to lawyer up and attempt to sue your way past layers of immunity and multiple, ultra-flexible warrant exceptions.

But while this administration talks a good game about respect for law and order, it certainly doesn’t show the respect it believes is owed to the nation’s law enforcement officers. Marcy Wheeler points out this hypocrisy to devastating effect in her post dissecting (and recasting) Barr’s pro-police, anti-everyone else rant.

Barr wants the public to comply immediately and without question when interacting with government employees empowered to enforce the law. But that’s something he’s not interested in doing himself. Replace “police” with entities empowered to police the Executive branch — as Wheeler does here — and Barr starts looking like the Great Unwashed he’s complaining about. (Wheeler’s alterations to Barr’s original speech are in bold.)

The anti-oversight narrative is fanning disrespect for the law. In recent years, we have witnessed increasing toleration of the notion that it is somehow okay to resist oversight.

Previously, it was well understood that, regardless of the circumstances, legal resistance is unacceptable because it necessarily leads to a spiral of escalating resistance that endangers the ability of Congress to oversee the Executive. For that reason, virtually all jurisdictions have made resistance a serious crime.

Not too long ago influential public voices — whether in the media or among community and civic leaders — stressed the need to comply with oversight commands, even if one thinks they are unjust. “Comply first” and, if you think you have been wronged, “complain later.”

But we don’t hear this much anymore. Instead, when an incident escalates due to a suspect’s legal resistance to oversight, that fact is usually ignored by the commentary. Congress’ every action is dissected, but the suspect’s resistance, and the danger it posed, frequently goes without mention.

There’s a bit more in Wheeler’s post, so definitely click through and check it out. Or just grab almost any part of Barr’s speech and play Executive branch mad libs with it. The end result is lengthy rant condemning people like William Barr for doing the things Barr is currently doing. Sad!

Filed Under: attorney general, congress, doj, respect police, rule of law, subpoenas, william barr