Shh!: EFF Wins FOIA Motion in FISC Case

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The old does-a-tree-falling-in-the-woods-make-a-sound? conundrum has got nothing on the nonprofit online free speech advocate Electronic Frontier Foundation (EFF), which crowed in a press release that it had successfully argued a motion in a Freedom of Information Act (FOIA) action in the super-secret Foreign Intelligence Surveillance Court (FISC) regarding National Security Agency (NSA) surveillance.

What isn't so clear in this hush-hush alphabet soup that purportedly involves the first disclosed victory by a non-government party before the FISC is what exactly EFF has won. It's not easy to brag about the mouthful of the court's decision in In re Motion for Consent to Disclosure of Court Records or in the Alternative a Determination of the Court's Rules on Statutory Access Rights (Docket No. Misc. 13-01).

According to the EFF announcement, FISC said it was ok to disclose publicly a previous FISC opinion that purportedly said facets of NSA snooping under Sec. 702 of the FISA Amendments Act were unconstitutional. The victory, while not Pyrrhic, isn't exactly gratifying either, because FISC didn't actually order the opinion itself to see the light of day. Rather, the court merely ruled that FISC rules in and of themselves do not interfere with the disclosure of an opinion.  In other words, according to the EFF, FISC soundly rejected the argument by the Department of Justice (DOJ, if you can stand another acronym) that the Executive Branch's hands are tied by FISC procedural rules when it comes to releasing an opinion.

The court's ruling, along with a motion by the American Civil Liberties Union (ACLU) asking FISC to open the court's interpretation of Section 215 to public view, may be found on the public docket recently created by the FISC.

Given the PRISM and NSA phone call monitoring stories currently dominating the news cycle, you might want to think twice before sharing EFF's giddy celebratory news with your posse online or via cellphone.

DOJ Broad Subpoena of AP Journos Phone Logs an Assault on Press Freedom

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The great jurist, Judge Learned Hand,  recognized that "[t]he hand that rules the press, the radio, the screen and the far-spread magazine rules the country." "A free press is not a privilege," journalist Walter Lippman wrote, "but an organic necessity in a great society."

Unfortunately, the Administration of President Barack Obama, which has initiated a record six cases under the Espionage Act against individuals alleged to have leaked classified information, has embraced Judge Hand's caveat but apparently turned its back on Lippmann's plea for press freedom, the cornerstone of our society.

The U.S. Department of Justice subpoenaed the telephone records of 20 phone lines of Associated Press reporters and editors from April and May 2012, which included journalists' cellphone and home numbers, and those of AP bureaus in New York, Hartford and Washington, D.C., as well as the AP press phone in the U.S. House of Representatives, the DOJ revealed to the AP last Friday.  Reportedly, the subpoenas sought the telephone numbers of those with whom the AP staffers had contact and the length of each call. Purportedly, the DOJ was reacting to a May 2012, AP story about a thwarted terrorist plan in Yemen and was gathering data for its probe into how AP learned about a conspiracy involving an underwear bomber on an airline destined for the U.S.

AP condemned the government seizure of phone logs as a "massive and unprecedented intrusion by the Department of Justice into the news-gathering activities (of AP)." The American Civil Liberties Union criticized the DOJ's actions as "an unacceptable abuse of power." AP CEO Gary Pruitt has demanded the return of the phone records and that all copies be destroyed.

Media organizations and free press advocates expressed shock at the breadth of the phone logs sought by the DOJ under the mantle of national security and fretted about the chilling effect the move would have on reporters' interactions with their sources.  Joining in the chorus of those criticizing the DOJ actions were prominent GOP legislators and members of past Republican White House administrations, many of whom wouldn't have shed a tear if the New York Times building had burned down when the Times reported during the Bush Administration on NSA wiretaps of Americans' overseas phone calls and the overseas locations where enhanced interrogation of suspected terrorists occurred.

Because of the U.S. Supreme Court decision in Smith v. Maryland, 442 U.S. 735 (1979), authorities need only show relevance to a criminal investigation to secure subpoenas of telephone carriers for data, including incoming calls and the phone numbers of outgoing calls and when such calls were made. In contrast, electronic eavesdropping on the phone calls of American citizens is illegal unless law enforcement obtains a warrant from a judge.

Apparently, the DOJ did not inform the AP about seizing the phone records for more than two months after it secured the records, which appears to violate government regulations set forth in 28 C.F.R. sec. 50.10. Under the regulations, the news media must be told of the receipt of any data within 45 days. Moreover, the Attorney General must give approval to the Justice Dept. before it subpoenas the press, which is usually a last resort. Protocol usually involves authorities making an attempt to negotiate with the targeted media outlet for release of information before resorting to subpoenas.

The political blowback against elected officials perceived to be anything but vigilant and steel-jawed in their pursuit of those who would do harm to the U.S. has too often in recent years caused those in power, along with the news media and the public, to be lax in their support of the First Amendment, Fourth Amendment and other Constitutional provisions.  But as Thomas Jefferson once noted: " A society that will trade a little liberty for a little order will lose both and deserve neither."

Massachusetts Racetrack 'SLAPPed' with Legal Costs for Lame Libel Suit

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Plainridge Racecourse, d/b/a Ourway Realty, has dropped its appeal of a Norfolk County Superior Court judge's dismissal of its defamation suit against a Plainville (Mass.) opponent of slot machine gambling at the harness racing track and will pay the defendant's attorneys fees of almost $25,000 pursuant to the Massachusetts anti-SLAPP (Strategic Lawsuit Against Public Participation) statute [M.G.L. c. 231, sec. 59H], the Attleboro Sun Chronicle reported.

The libel case, Ourway Realty, LLC v. Thomas Keen (Case No. 12-cv-00963), was brought by the track against the Plainville resident, who maintained a Web site and Facebook page advocating against adding slot machines at the track, based on a poster's comment on the Web site regarding a home-security photo of an intruder that police should search the race track to find the burglar. The ACLU of Massachusetts, through private counsel, successfully argued a motion to dismiss the complaint under the anti-SLAPP statute, which states in relevant part: "In any case in which a party asserts that the civil claims, counterclaims or cross claims against said party are based on said party's exercise of its right of petition under the constitution of the United States or of the commonwealth, said party may bring a special motion to dismiss."

The Sun Chronicle article reported that the plaintiff would pay the defendant's legal costs, but that no damages were assessed against the race track.

Supreme Court Leaves Telcom Cos. Shield in Place

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The United States Supreme Court this week declined to hear a challenge by the ACLU and the Electronic Frontier Foundation to legislation that provides legal immunity to telecommunications companies that assist the National Security Agency in monitoring citizens' email and telephone communications.

The Associated Press reported that the High Court left in place a unanimous ruling by a three-judge panel of the United States Court of Appeals for the Ninth Circuit on December 29, 2011, that upheld a lower court ruling that the 2008 surveillance rules enacted by Congress were constitutionally permissible.

The rules, which allegedly enabled the intelligence community to engage in warrantless monitoring of Americans' communications, were targeted by the ACLU and EFF in lawsuits against various telecommunications entities, including Sprint Nextel Corp. and Verizon Communications, Inc. that claimed violation of customers' privacy.

UPDATE: No 1st Amend. Violation in College Paper Alcohol Ad Ban

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The United States District Court for the Eastern District of Virginia has upheld the Commonwealth's Alcohol Beverage Control ("ABC") regulations that bar alcohol advertising from the University of Virginia's Cavalier Daily newspaper.

Judge M. Hannah Lauck conceded her alcohol advertisement ruling restricts commercial speech, but wrote: "it does not, nor does it tend to, restrict the length, content or substance of noncommercial speech," and therefore, does not impede the First Amendment rights of The Cavalier Daily. As reported by the Charlottesville, Va.-based The Daily Progress, the decision upheld the ABC regulations, recognizing that collegiate newspapers' principal audience is under age 21.

Pursuant to the relevant ABC regs., [3 Va. Admin. Code secs. 5-20-40(A) & (B)(3)], terms such as happy hour are banned and references to specific brands of alcohol, as well as beer, wine and mixed drink advertisements in student-run publications, except in the context of restaurant advertising, are prohibited. (See "TUOL" posts 11/30/10, 8/24/10, 4/12/10.)

Expert testimony for the government suggested binge drinking and alcohol consumption overall would lessen under the ban, but the college newspapers, who complained the ban cost them $30,000 in advertising revenues annually, presented expert testimony that alcohol ads promote brand loyalty and have little impact on the demand for intoxicating beverages.  The student publications, which were represented by the ACLU, have yet to decide whether to appeal.

Twitter Fights Subpoena in Occupy Wall Street Case

Getty Images via @daylifeNew York County Criminal Court Judge Matthew Sciarrino  recently declined the defendant's motion to quash a subpoena in People v. Malcolm Harris (Case No. 2011NY080152) for lack of standing, but Agence France Presse news service reports that, backed by the ACLU, microblogger Twitter will challenge the court order to hand over user data to authorities.

Harris faced a disorderly conduct [P.L. sec. 240.20[5]] charge for his alleged involvement in an Occupy Wall Street demonstration on the Brooklyn Bridge last year. Law enforcement officials issued a subpoena to Twitter seeking email information and tweets for the period from 9/15/11 to 12/31/11 for account @destructuremal, a Twitter account allegedly used by Harris.

In his decision against Harris, Judge Sciarrino said Twitter does not guarantee its users complete privacy. According to a press release by the ACLU, however, Twitter is contesting the subpoena, claiming its Terms of Service indicate that users "own" their content. The social media giant contends that compliance with the court's order would run afoul of the federal Stored Communications Act [18 U.S.C. sec. 2701-2711], a part of the Electronic Communications Privacy Act.

Criminal Libel's 'Rockie' Future in Colorado

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Politics makes for strange bedfellows as a  Colorado Republican legislator, backed by the ACLU and the state's press association, has filed a bill to eliminate the offense of criminal libel, a class 6 felony.

The Associated Press reports that Sen. Greg Brophy, who represents the Eastern Plains, wants to repeal the 19th century law that has been applied seven times over the past two years, including against Howling Pig editor Thomas Mink (see "TUOL" posts 12/15/11, 6/6/11 & 7/22/10). Critics argue the law suppresses First Amendment freedom of speech as it subjects individuals who broadcast or publish defamatory comments about another to up to 18 months in the hoosegow and a maximum $100,000 fine for a first offense.

Pursuant to Colorado Revised Statutes Title 18-13-105: "A person who shall knowingly publish or disseminate, either by written instrument, sign, pictures, or the like, any statement or object tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule, commits criminal libel."

The Colorado Press Association and the ACLU support Brophy's repeal effort, while the state's District Attorney's  Council has remained neutral, according to the AP account. Brophy is quoted in the wire service story as saying: “I think it tramples on the First Amendment rights of people to write and/or post online things that they want to post, and so I’m just seeking to strike the statute. Pretty plain and simple.”

Govt. Entitled to Twitter Records in WikiLeaks Probe, Federal Judge Rules

Image by Sean MacEntee via FlickrUnited States District Court for the Eastern District of Virginia Judge Liam O'Grady, in a three-page Memorandum and Opinion in In Re Application of the United States of America for an Order Pursuant to 18 U.S.C. sec. 2703(d) [Case No. 1:11-dm-00003-TCB], this week denied a request by Birgitta Jonsdottir, Jacob Appelbaum and Rop Gonggrijp to shield their Twitter account information from authorities seeking to prosecute WikiLeaks.

As reported by Wired, Twitter was served with a subpoena by the feds in December 2010, pertaining to a Grand Jury inquiry into possible criminal charges against WikiLeaks. The government wants information regarding the above-named individuals' accounts under the 1994 Stored Communications Act, 18 U.S.C. sec. 2703(d), which governs access by law enforcement officials to Internet data, such as transaction information, but not online content. Specifically, the order wants information about the trio's Twitter accounts, including addresses and phone numbers, account payment information (if any), IP addresses, data transfer records and connection records.

The ACLU and the Electronic Frontier Foundation contend the Twitter order violates the trio's First Amendment rights. In March 2011, U.S. District Court Judge Theresa Buchanan ruled the three lacked legal standing to challenge the records request because the government was not attempting to access actual Twitter content. Prosecutors argued that the Grand Jury probe was being stalled by the delay in obtaining the Twitter account information.

Judge O'Grady denied the petitioners' request because they failed to make a "strong showing" of success on appeal. "A stay is not a matter of right, even if irreparable injury might result," Judge O'Grady wrote.

UPDATE: Howling Pig Quieted by $425k Payout

Image via WikipediaFormer Univ. of Northern Colorado student Thomas Mink is $425,000 richer this week, the ACLU reports, following settlement of his 2004 claim based on a former Weld County Deputy District Attorney's approval of a search warrant of his home in connection with a criminal libel suit against The Howling Pig, an online publication of which he was the publisher (see "TUOL" posts 6/6/11, 7/22/10).

In Thomas Mink v. Susan Knox, a Deputy District Attorney Working for the 19th Judicial District Attorney's Office in Her Individual Capacity (Case No. 04-cv-00023) the U.S. District Court for the District of Colorado found for Mink in his action under 42 U.S.C. sec. 1983 that his Fourth Amendment rights were violated by an illegal search and seizure of his home computer and written materials arising from a criminal libel probe based on comments about a professor that appeared in The Howling Pig. The Associated Press reported that Knox is no longer with the Weld County DA's office.

Sheriff's Dept. Conduct Makes Los Angeles Photogs Shutter: Federal Suit Filed

Image via WikipediaBacked by the ACLU, three photojournalists have filed suit in the U.S. District Court for the Central District of California, alleging that the Los Angeles Sheriff's Department and its deputies have systematically harassed, searched and detained them as the shutterbugs have attempted to take photographs in public places, The Los Angeles Times reported.

The 24-page complaint in Shawn Nee, Greggory Moore, Shane Quentin & the National Photographers' Rights Association v. County of Los Angeles, Los Angeles County Sheriff's Dept. et al. seeks a declaratory judgment from the Court that the alleged misconduct by the defendants violated the First and Fourth Amendment rights of the plaintiffs, an injunction against the Sheriff's Dept. and attorneys' fees. The complaint includes two counts alleging violation of the First Amendment and Fourth Amendment rights of the plaintiffs pursuant to 42 U.S.C. sec. 1983 (Civil Action for Deprivation of Rights), which in relevant part provides: "Every person, who under color of any statute, ordinance, regulation, custom or usage of any State...subjects...any citizen of the United States...to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress...."

The alleged behavior by the Sheriff's Dept. deputies springs from "suspicious activity reporting" under the auspices of Homeland Security and counterterrorism. According to the Times article, documentary photojournalist Shawn Nee allegedly was detained and searched on Halloween 2009, after photographing turnstiles at the LA Metro system. Greggory Moore, a reporter/photographer for the Long Beach Post, was photographing passing motorists from a public sidewalk for a story in June 2011, when he was allegedly frisked and interrogated by deputies. Shane Quentin, a freelance art photographer, ran afoul of deputies in June for photographing oil refineries.

"TUOL" will watch as this case continues to develop.

ACLU Challenges Law Restricting Internet Use By Registered Sex Offenders

Image via WikipediaThe American Civil Liberties Union this week filed suit in the U.S. District Court for the Middle District of Louisiana, trying to block HB 55, R.S. sec. 14:91.5, legislation effective August 15, that restricts Internet use by registered sex offenders.

In John Doe v. Bobby Jindal & James D. Caldwell (Case No. 3:11-cv-00554-FJP-SCR), the ACLU is asking the court for injunctive relief to prevent the law from taking effect. The ACLU contends the statute is vague and overbroad and violates the First Amendment and Fourteenth Amendment rights of the plaintiff by "criminalizing the use or access of various Internet resources by individuals convicted of certain sex offenses."

As reported by the Jurist Website, the ACLU claims the Louisiana law that bans registered sex offenders from social networking sites, peer-to-peer networks and chat rooms is poorly drafted and would block access to sites such as Amazon.com and usajobs.com. Gov. Jindal, who along with state Attorney General Caldwell is a named defendant both in his official capacity and individually, has vowed to fight the ACLU suit "with everything I have."

UPDATE: Last Call for Va. College Papers on Alcohol Ad Ban

Image via WikipediaIn Educational Media Co. v. Swecker (Docket No. 10-278), the U. S. Supreme Court Monday declined to hear an appeal by the Va. chapter of the ACLU on behalf of two college newspapers in the Commonwealth regarding alcohol advertisement restrictions, according to an Associated Press report.

The High Court decision lets stand the 2-1 vote of the U.S. Circuit Court of Appeals for the Fourth Circuit (Case No. 08-1798) that upheld the validity of Va. Alcohol Beverage Control Regulations [3 Va. Admin. Code secs. 5-20-40(A) & (B)(3)] that prohibit use of the term happy hour, forbid references to specific alcoholic beverages and ban beer, wine and mixed drink advertisements in student-run publications, except in the context of restaurant ads. [See "TUOL" post 8/24/10.]

Both The Cavalier Daily and The Collegiate Times challenged the ban on the non-deceptive ads on First Amendment grounds, arguing that they lost roughly $30,000 in ad revenue because of the proscription. Instead of  "bottoms up," their appeal has bottomed out.