Jim Jordan Further Weaponizes His Subcommittee On The Weaponization Of The Gov’t To Chill Speech

Too Much Free Time

from the the-hypocrite's-hypocrite dept

Rep. Jim Jordan is at it again. You’ll recall that Jordan ignored subpoenas from the January 6th Committee and was referred to the House Ethics Committee for his failure to respond to those subpoenas. Of course, since being handed the keys to the brand new (created just for him) “Subcommittee on the Weaponization of the Government,” Jordan has been furiously flinging spurious subpoenas left and right, and then threatening contempt proceedings for anyone who ignores them.

As we’ve highlighted in the past, nearly everything that Jordan accuses others of doing, and which he insists his committee is there to stop… he is actually doing himself (while those he accuses of “weaponizing the government” are not, in fact, doing that at all).

It is the absolute worst of the worst in terms of not just unadulterated hypocrisy, but doing so in a manner that unconstitutionally silences the speech.

The Washington Post has the latest details on how Jordan and his committee are threatening academics for the crime of researching disinformation.

Last week, Jordan (Ohio) threatened legal action against Stanford University, home to the Stanford Internet Observatory, for not complying fully with his records requests. The university turned over its scholars’ communications with government officials and big social media platforms but is holding back records of some disinformation complaints. Stanford told The Washington Post that it omitted internal records, some filed by students. The university is negotiating for limited interviews.

The push caps years of pressure from conservative activists who have harangued such academics online and in person and filed open-records requests to obtain the correspondence of those working at public universities. The researchers who have been targeted study the online spread of disinformation, including falsehoods that have been accelerated by former president and candidate Donald Trump and other Republican politicians. Jordan has argued that content removals urged by some in the government have suppressed legitimate theories on vaccine risks and the covid-19 origins as well as news stories wrongly suspected of being part of foreign disinformation campaigns.

Basically all of this is premised on the blatantly false claim that there is some “censorship industrial complex” in which researchers, government institutions, and social media companies are working together in a grand cork board conspiracy to silence conservatives. Literally none of that is true, as Twitter itself admitted in court just recently.

Part of the issue is that folks who are deep into the conspiracy theory world simply can’t comprehend that anyone would study disinformation for academic reasons, and they insist that it must be part of a secret plan to “censor” people. The truth, of course, is that while the academics in this field are trying to understand how misleading information flows, and also how it impacts beliefs and action (if at all!), it’s pretty rare to find “disinformation” researchers who think that “censorship” is an effective way of stopping the flows of information.

But, the conspiracy theory must be fed, and the repeated lies about the “censorship industrial complex” needs a villain… and Jordan has focused his attention on these academics. And, in the process, he is literally weaponizing the power he has as a government officials to chill speech and actually push people away from studying disinformation flows.

The pressure has forced some researchers to change their approach or step back, even as disinformation is rising ahead of the 2024 election. As artificial intelligence makes deception easier and platforms relax their rules on political hoaxes, industry veterans say they fear that young scholars will avoid studying disinformation.

Even if you worry that “disinformation” is often misclassified, you should still want the space to be studied, because that’s how we learn whether or not “disinformation” is actually a problem. I’ve long had my doubts about how effective disinformation actually is in changing minds or behavior, but I still want it studied. And Jordan’s weaponization of his Congressional subcommittee is making that much harder.

And, of course, that’s a large part of the goal. It’s become quite clear that the Jordan wing of the GOP (which has now become the core of the GOP, rather than the fringe it once was) has decided that the only way they can win elections is through blatant lies, propaganda, and nonsense, and therefore they need to suppress anyone who calls out their bullshit.

So, things like this are particularly laughable:

“Whether directly or indirectly, a government-approved or-facilitated censorship regime is a grave threat to the First Amendment and American civil liberties,” Jordan wrote.

The only one leading to censorship here is you. The “grave threat to the First Amendment and American civil liberties” is your stupid attempt to bring back a no frills McCarthy-style congressional committee designed to intimidate people into silence.

The hypocrisy is so loud and so stupid:

Jordan spokesman Russell Dye argued that the multitude of requests will build on evidence that shows an organized effort to tamp down conservative speech online. “The committee is working hard to get to the bottom of this censorship to protect First Amendment rights for all Americans,” he said.

The censorship and First Amendment violations are coming from you, dude.

Filed Under: 1st amendment, chilling effects, free speech, jim jordan, subpoenas, weaponization subcommittee

US And EU Nations Request The Most User Data From Tech Companies, Obtain It More Than Two-Thirds Of The Time

Studies

from the may-as-well-just-be-government-contractors dept

Most tech companies handling data requests from governments now publish transparency reports. As everything moves towards always-online status (including, you know, your fridge), social media platforms and other online services have become the favored targets of government data requests. It just makes sense to look there first rather than out there in the real world, where people (and their communications) are that much more difficult to locate.

Consequently, what started out as a cottage industry has quickly become a front-of-the-house operation for many governments. Year-after-year data request increases are the new normal. Twitter reported a record high in government requests last year, along with a doubling of the number targeting journalists. The only countries submitting fewer requests for user data were those (like Russia) which had blocked citizens’ access to the platform.

These trends continue. A VPN provider has compiled data from multiple companies’ transparency reports into one handy report — one that shows requests continue to skyrocket… and that these requests are complied with more often than not.

As detailed in SurfShark’s new report which analysed user data requests that Apple, Google, Meta, and Microsoft received from government agencies of 177 countries between 2013 and 2021, Tech giants get a lot of requests for user data, and the majority of the time, they comply.   

Of the four Big Tech companies studied, Apple was the most forthcoming, complying with 82% of requests for user data, compared to Meta (72%), Google (71%), and Microsoft (68%). Interestingly, Big Tech was more compliant in the UK than when compared to global figures, disclosing user data 81.6% of the time.

In the nine years since these companies began producing transparency reports (all following the 2013 Snowden leaks), government requests have more than tripled. And the spike isn’t due to increased (shall we say) participation from governments with lots of human rights abuses on their permanent records. No, it’s the US and EU leading the way, with the United States taking the top spot, followed by Germany. The top 10 also includes the UK, France, Ireland, Portugal, and Belgium.

The outliers are Singapore and Taiwan — nations more often linked to pervasive surveillance and government oppression than the ones doing most of the asking.

Also of note is the compliance rate. Apple may have cultivated a reputation for protecting its users’ privacy and security but it’s also the tech company with the highest compliance rate. It has a ten percentage point lead on the second place company, Meta — a company rarely (if ever) associated with terms like security or privacy.

The year-over-year increases are unsurprising. You go where the data is and, increasingly, it’s housed by these four companies. But the increase in compliance is somewhat disheartening. It could signal that government agencies are crafting better, more targeted requests. Or it may signal that the steady increase in the number of requests means requests aren’t necessarily receiving all the scrutiny they deserve. Whatever the case, it’s something that bears watching. Fortunately, this VPN provider is making it that much easier to do.

Filed Under: government requests, law enforcement, subpoenas, surveillance, transparency, transparency reports, warrants

More Mass Surveillance: FOIA Docs Reveal Illegal Snooping On US Residents’ Financial Transactions

Legal Issues

from the collect-it-all dept

If it can conceivably be considered a “third party record,” the government is going to seek warrantless access to it. The Third Party Doctrine — ushered into existence by the Supreme Court in 1979 — says there’s no expectation of privacy in information shared with third parties. That case dealt with phone records. People may prefer the government stay out of their personal conversations, but the Smith v. Maryland ruling said that if people shared this info with phone companies (an involuntary “sharing” since this information was needed to connect calls and bill phone users), the government could obtain this information without a warrant.

That ruling led to things like the NSA collecting all phone records created by users of multiple phone service providers or law enforcement agencies harvesting location data in bulk using nothing more than self-issued subpoenas.

The abuse of the Third Party Doctrine has led for calls to have this overturned, either by court rulings or legislation. Senator Ron Wyden has been on the forefront of this effort to bring an end to more than four decades of warrantless freebies for government agencies.

He’s also the one who first called attention to misuse of the Third Party Doctrine to engage in mass surveillance of customers utilizing certain financial services. Last March, he asked the DHS Inspector General to open an investigation into ICE’s (illegal) use of subpoenas to obtain records about every money transfer over $500 originating in or headed to California, Arizona, New Mexico, Texas, and Mexico.

The DHS has yet to oblige Wyden’s request. And this mass surveillance now involves more than DHS agencies. As the ACLU reports, this practice is now part of everyday law enforcement work in Arizona. This is what the ACLU has discovered, thanks to more than 200 documents obtained via public records requests.

The state attorney general apparently saw what ICE was doing and liked it. Here’s what’s been happening in Arizona since Wyden first raised the alarm about warrantless access to money transfer records:

The records show the state of Arizona sending at least 140 illegal subpoenas to money transfer companies to compel them to turn over customers’ private financial data, amassing it in a huge database and giving virtually unfettered access to thousands of officers from hundreds of law enforcement agencies across the country. The database, run by an organization called the Transaction Record Analysis Center (TRAC), contained 145 million records of people’s financial transactions as of 2021, and we have reason to believe it’s still growing.

The recipients of these illegal subpoenas are financial services utilized most frequently by the unbanked and members of marginalized communities: Western Union, MoneyGram, and others that facilitate the transfer of money to immigrants’ families back in their home countries.

The state AG likely knows this is illegal. A state court decision in 2007 held that the subpoenas were overbroad, a violation of the state’s constitution. But instead of trying to comply with the law, the AG’s office applied pressure, finally forcing Western Union to give it what it wanted.

Unsatisfied, the Arizona attorney general sued Western Union under a state anti-money laundering law, and in 2010 the two sides reached a settlement. Western Union agreed to turn over records of all money transfers exceeding $500 to or from the Southwest border states and to or from Mexico for the next four years.

A second agreement was signed in 2014, one that allowed TRAC to retain these records indefinitely. That agreement expired in 2019 and the AG approached the DHS for assistance, triggering the program Ron Wyden called out in 2022.

Having the program ruled illegal and losing the assistance of DHS/ICE hasn’t slowed anything down. The documents obtained by the ACLU detail an ever-expanding program that isn’t limited to the one company the state AG managed to arm wrestle into submission.

The documents we obtained reveal the enormous scale of this surveillance program. According to the minutes of TRAC board meetings we obtained, the database of people’s money transfer records grew from 75 million records from 14 money service businesses in 2017 to 145 million records from 28 different companies in 2021. By 2021, 12,000 individuals from 600 law enforcement agencies had been provided with direct log-in access to the database. By May 2022, over 700 law enforcement entities had or still have access to the TRAC database, ranging from a sheriff’s office in a small Idaho county, to the Los Angeles and New York police departments, to federal law enforcement agencies and military police units.

The documents show the federal government is still pitching in, even if it can’t actually take over this data haul for the state AG — something that would at least make it legal under the US Constitution. The ACLU points out the DEA has issued its own subpoenas, adding even more records to the state’s TRAC database. And ICE and CBP have provided funding for TRAC, presumably with the understanding they’ll be given access to the financial records the AG is illegally collecting in bulk.

And, of course, Ron Wyden is back on top of this, asking yet again for DHS oversight to take a look at this flagrant abuse by its component agencies.

In his letter to the DOJ Inspector General today, Wyden said the program included far more states and foreign nations than the government disclosed in briefings, based on information Wyden learned from briefings with three other money transfer companies –  Euronet (RIA Envia), MoneyGram and Viamericas. 

Wyden revealed in the letter that the data included records for transfers of $500 or more between any U.S. state and 22 foreign nations and one U.S. territory:  Dominican Republic, Ukraine, Tortola (British Virgin Islands), Bolivia, the U.S. Virgin Islands, Peru, Columbia, Ecuador, Venezuela, Hong Kong, St. Martin/St. Maarten, Curaçao, China, Argentina, Canada, Spain, Panama, France, Malaysia, Costa Rica, Thailand, Bahamas and Barbados.

Additionally, Viamericas said it had received subpoenas for bulk money transfer records from the FBI and U.S. Drug Enforcement Agency. MoneyGram said it had received bulk money transfer record subpoenas from the DEA. 

That’s Wyden rather politely saying the DHS has lied to him and other members of Congress in the past. He’s also pointing out this program involves far more than a single state agency and a single foreign country. And all of it targets people the government (at all levels) feels won’t fight back: people with limited financial options, many of which are at the mercy of the US government when it comes to staying in the United States. It’s not just illegal (at least in the state of Arizona), it’s abuse of power to place some of the most powerless residents of the United States under the government’s microscope.

Filed Under: arizona, dhs, financial transactions, ice, money transfers, ron wyden, subpoenas, third party doctrine, trac
Companies: money gram, western union

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