DoJ's Gag Order on Reason Has Been Lifted
popehat.com
popehat.com
But having been on the other side of the coin, investigating computer crime, I can tell you why it happens. It's really easy to make a request for information, and in most cases, the person you're asking will just willingly give it up even though they don't legally have to, either because they want to be helpful or because they don't know about their legal rights. Even if the evidence can't be used to build a case against the person in court, it can still be used to lead down a path towards finding the person and gathering evidence that is admissible.
Huh? Reason.com got requests from law enforcement asking for email addresses and other private information. Reddit.com got requests from law enforcement asking for email addresses and other private information. Do you really not see the parallel, even if the Reason.com case is much more egregious for the fact of the gag order?
For one, a grand jury is made up of citizens, not members of law enforcement. (Notwithstanding the well-known belief that a "grand jury would 'indict a ham sandwich,' if that's what [the prosecutor] wanted.")
"Asking for information" includes things like a county police department sending a letter on department letterhead asking for information. It also includes the US government through Herbert Yardley asking all of the telegraph companies for their message traffic. There is no legal compulsion behind those requests.
jedberg's original comment confirms that this refers to simply asking, in the hopes that the recipient will pass data over voluntarily."It's really easy to make a request for information, and in most cases, the person you're asking will just willingly give it up even though they don't legally have to, either because they want to be helpful or because they don't know about their legal rights.
A federal grand jury subpoena, on the other hand, has teeth behind it. A recipient is legally obligated to respond to the subpoena, either with the requested information or with a legal challenge.
So no, these are not the same things. Reason.com received an order by a grand jury, not a request by law enforcement.
It makes sense to do this, but I can already hear the cries of parallel construction from my bunker 20 floors below sea level.
Keeping signup IP's forever and IP's for 90 days seems like a pretty long time to me.
It was a point about game theory, not about law.
Today (literally, today), the Supreme Court took a first shot at narrowing the third party doctrine with respect to hotel room records in Los Angeles. [2] The ruling was largely about the procedure a hotel may use to quash (ask a court to reject) the subpoena, but it shows a willingness to cut back on the third party doctrine. The GPS tracker case also had some commentary suggesting a limit to the third party doctrine, but it was ultimately decided based on the physical intrusion of the device.
[1] Alternet's very negative take on the issue: http://www.alternet.org/8-ways-police-can-spy-you-without-wa...
[2] http://www.politico.com/story/2015/06/hotel-guest-list-priva...
The hotel case you mentioned doesn't seem to involve that; in this case, the hotel is opposing the request, so there's an adversarial posture between the third-party data holder and the government over handing over the data.
https://en.wikipedia.org/wiki/Pen_register#Pen_Register_Act
So it's reasonable to speak of the third party doctrine being applied to compelled data disclosures, not just voluntary ones.
So much like all the stories we here about people losing their life savings to police and other government agencies it all comes down to insufficient laws preventing such behavior; there literally is no recourse.
The real problem here is concentration of power, as with it comes impunity to the constituency it serves.
This entire argument seems to revolve around the author's subjective notion of a 'credible threat,' but describing a specific act of physical violence (putting a human through a wood-chipper) against a specific person who also happens to be a public official (a sitting U.S. judge) could cause that person, if they are reasonable, to feel that their life was in danger. That's the standard.
Edit: or cause other reasonable people to believe that the individual's life was in danger
http://popehat.com/2013/10/07/meant-to-be-threatening-or-rea...
The exception to free speech for threats is "true threats". To prosecute a "true threat", the state must establish one or both of:
* The subjective test, of whether it was the speaker's intent to convince the object of the threat that they were in danger
* The objective test, of whether a reasonable disinterested observer would conclude that the speaker's language telegraphed an intent to actually commit harm.
Threatening to stuff a judge in a wood chipper on an Internet message board clears neither of these two hurdles. It's facially not a true threat. An attempt to investigate it as such is an abuse of prosecutorial power. Hence the uproar.
In the case of the "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." comment, you have to closely read the comment to determine that there is no actual intent here, because the entire statement is conditional on the 'If they ever make me carry a rifle..." portion of the sentence, which at the very least makes it not an immediate threat. In some of these comments, there is no such qualification, the presence of which would make it fairly obvious that in this case there is no credible threat.
These comments are not nearly as clear cut or objective as people are making it out to be since you can't determine from the specific language people are using that this is definitely not an immediate threat.
EDIT: A lot of people are modding me down without making a substantive counterargument. Using the text of the comments please highlight the portions that prove objectively that there is no threatening intention please.
The reason the comment about L.B.J was protected was not because the "if X happens" language, but because even crude, hyperbolic political commentary is absolutely protected under US law.
> you can't determine from the specific language people are using that this is definitely not an immediate threat.
That's utterly irrelevant.
"Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise."
It is literally right there in the decision, so in fact the conditional language is being considered.
> you can't determine from the specific language people are using that this is definitely not an immediate threat.
That's utterly irrelevant.
How is this utterly irrelevant? it seems to be the substance of the entire legal problem.
2) You can't determine from any language that something is definitely not a true threat (or an immediate threat, as you persist on calling it). Language is malleable. My use of the word "malleable" could be a coded reference which means, to those in the know, that you should be hunted down and killed. I mean, it doesn't really sound like it is, but how can you determine that? The answer is that you don't need to. Speech that you "can't determine" isn't a true threat is still protected. It's only when speech rises to the level of being clearly intended to cause fear in the recipient that it might lose its protection. (Which is, incidentally, one of the larger reasons the speech was obviously protected: It wasn't made to the person allegedly being threatened. Comments about a person face a vastly higher bar than comments to a person. If the person who made the woodchipper comment had no reason to think the judge would ever see it, it couldn't have been a true threat.)
In short, the true threats exception is vastly narrower than you seem to think.
http://popehat.com/2015/06/08/department-of-justice-uses-gra...
I've no trouble being convinced that the way the government is attempting to investigate these comments is ham-handed and excessive.
I have a harder time getting outraged about someone's inalienable right to talk about shooting federal judges and then remain anonymous or avoid any government scrutiny. If you run around the internet saying such things, you are likely to attract government scrutiny and that scrutiny isn't somehow axiomatically unreasonable.
I don't think people should run around the Internet threatening to shoot people either, and I think threats to shoot people should be taken seriously. But "Its judges like these that should be taken out back and shot" isn't a serious threat; it is, in fact, a figure of speech.
Do you want to systematize the "reasonable person" reasoning here? What are all the factors you might consider in making the assessment? I'll start a list:
1. Lack of stated intent --- someone should be shot, not I am going to shoot.
2. Lack of specific planning or details anywhere in the comments. Someone should be shot tomorrow when they come to court at 8:30AM, vs. simply "someone should be shot".
3. The rhetorical-or-true threat is a single isolated comment from the commenter, not a pattern of comments from that person over time (people make sockpuppets, of course, but the mere act of diffusing a threat over a bunch of sockpuppets argues against it being a true threat).
4. The "threat" echoes a previous comment on the same forum, as in "no, don't shoot the person out back, do it out front so everyone can see" or "no, don't use a gun, use a wood chipper".
5. Obviously: extravagant and silly modes of violence, like wood chippers, or dropping anvils on heads.
6. Jocular tone, or even, really, any non-deliberative non-serious non-specific tone in a comment that shares a forum with previous silly suggestions.
You could flunk all these tests and still not come anywhere near a "true threat", but I'd argue that opening a formal investigation and collecting evidence and issuing subpoenas for comments that flunk any of them is abusive. And so in this case, on the Reason comment threads, there was a complete absence of specifics or even of stated intent. Being happy about the idea of someone being shot makes you an asshole, but it doesn't make you a criminal.
How well does this case compare? Some asshats on a fringe forum mouthed off about murdering a judge because they didn't like the judge's verdict. I'd bet that then some other, similarly judgement-impaired indivdual reported them to the authorities. What follows is predictable - said authorities, ever paranoid of being accused of having failed to 'connect the dots', put the gears in motion resulting in silly subpoenas, some dickish behaviour by a federal prosecutor and a publication's inability to talk about the investigation for two weeks. Potentially, some imprudent ranters might get to chat with an FBI agent of which nothing will come.
I'm not trying to argue this is somehow an awesome outcome or that it doesn't, once again, highlight some worrisome problems with the power of prosecutors and its potential for abuse. But I just don't see the outrageous abuse of civil liberties, chilling effect, etc the tone of all of popehat's writing on the topic implies.
I don't think it's unreasonable to recognize the problem law enforcement, investigators, procecutors face in such situations - while zillions of internet hyperventilators fill message boards with their threatening but ultimately harmless nonsense, so do the microscopic minority who actually turn out to be violent. Is this incentive to over-react exacerbated by imbalances in prosecutorial power, other systemic issues? Sure. Does this case represent some outrageous assault on civil liberties? Is it entirely trivial to identify 'true' threats on internet message boards by applying a well-reasoned list of bulleted criteria? I'm not convinced of either of those things, at least, not yet.
The investigation itself was dumb and, I think, a bit abusive. The gag order though was clearly abusive.
Watts speaking at the Washington monument vs Watts saying something similar at an underground Panthers meeting where everyone is armed to the teeth - trivial distinction to make. Idiot talks shit on the internet? I don't think it's trivial to make the distinction. In fact, that's the exact ambiguity anonymous internet jerks rely on to try to intimidate, say, women whose views they don't like.
But, in the interests of brevity, I'm willing to concede the possibility I'm the proverbial frog blissfully swimming in the cauldron of an imminently boiling police state, suitably seasoned with a generous helping of obviously untrue threats.
>I have a harder time getting outraged about someone's inalienable right to talk about shooting federal judges and then remain anonymous or avoid any government scrutiny.
The reason we should push back on these kinds of investigations is federal agencies sometimes proceed knowing full well the subject isn't doing anything illegal, but they can make someone miserable just through the normal investigative process. The process itself is the punishment they intend to mete out to people who say things they don't like.
This is incorrect. This is a silly characterizations on the limits of free speech (of which some certainly do exist). Ken, the writer at Popehat, has written many times on this very topic. To address the most obvious problem with your statement, free speech DOES include yelling fire in a theater, unless that cry is false.
Further, Ken has also written at great length about what constitutes a "true threat", and demonstrated why NONE of the comments falls into that definition.
Moreover, you pick the most egregious of the statements. Saying that there should be "a special place in hell" for the judge can't possibly be interpreted in that manner. Anyone trying to do so is obviously acting in bad faith.
"Yelling fire in a crowded theater" was originally a metaphor for why we should jail anti-war protestors for handing out anti-draft pamphlets as spies under the Espionage Act; The standard established in Schenck was later overruled in Brandenberg, narrowed severely to describe 'Speech likely to incite imminent lawless action', with implication that this only applies to a riot. Up until the Patriot Act, we were fairly strongly against prescriptive prohibitions on speech, like gag orders; The optimist in me says ten years down the line we probably will be again. The pessimist in me is too busy weeping in a corner for his rights and having repetitive panic attacks to provide constructive criticism.
The fact that the phrase persists is one of the odder facts of Constitutional history, and the original ruling one of the more obviously loathsome of the set. Say what you like about the necessity of getting entangled in WW1, but the Founders would certainly speak strongly on the topic: https://en.wikipedia.org/wiki/George_Washington's_Farewell_A... , and choosing to suspend blatantly obvious First Amendment protections over that, as opposed to some more controversial position, always struck me as an unlikely outcome.
PS: The inner pessimist just perked up to ask what the hell I'm blathering about "speech" this and "speech" that, since we suspended due process entirely when we chose to empower highwaymen with civil asset forfeiture, and what's the point of debating more nuanced problems when that's standing law, when the people in charge think that's Constitutionally valid? Dude's depressing.
Furthermore the test is whether a reasonable person believes they could telegraph intent.
The test is - if you, a reasonable person, could reasonably believe that this judge's safety is in question? I will grant that it seems like the standard is fairly subjective, and libertarians are predictably siding with the expansive free-speech side of this argument, choosing not to read intent into something that other reasonable people might read intent into.
I tend to err on the side of personal safety given that I read these comments as probably not true threats but also not definitely false.
For what it's worth, though, I believe the sentence issued by the judge in question against Ross Ulbricht was unjust and unduly harsh and probably qualifies as cruel and unusual. Still, I don't recommend making suggestions of violence against an individual online, whether joking or not, and I don't think this is as clear cut as many are making it out to be.
From another Popehat post (Ken's really serious about this stuff, and goes to great lengths to explain it), talking about Holmes's evolved jurisprudence years after making the fire/theater statement. Quoting:
Holmes' Repentance — Too Little, Too Late
Conventional wisdom says that Holmes rethought his broad support of censorship when he grasped how open-ended it truly was. The next trilogy of cases before the Supreme Court, starting in late 1919, is consistent with that view. Holmes dissented repeatedly as the Supreme Court reaped what he had sown. ...
Holmes, a regretful Dr. Frankenstein struggling against his creation [that is, the fire/theater comment], dissented. He first offered what in my opinion is a disingenuous and utterly unconvincing attempt to distinguish the case from Schenck, abruptly discovering fastidiousness about proof that expression actually has a tendency to cause lawbreaking ...
The damage Holmes inflicted — the malleable and unprincipled standard of censorship he drafted — was not thoroughly rebuffed until a half-century later. Brandenburg v. Ohio states the modern standard
http://popehat.com/2012/09/19/three-generations-of-a-hackney...
http://reason.com/blog/2015/06/19/government-stifles-speech
This was obviously an overreach.
That is false as a matter of well established US law. That was used as an evocative argument in a long ago debate about what US law should be, and that side lost.
> nor does it include making suggestions of physical violence against a judge.
That is also false as a matter of well established US law.
> describing a specific act of physical violence [...] against a specific person who also happens to be a public official [...] could cause that person, if they are reasonable, to feel that their life was in danger. That's the standard.
That is not the standard.
> Edit: or cause other reasonable people to believe that the individual's life was in danger
That is also not the standard.
This is not a matter of opinion, and this is not a grey area. That's not how the "reasonable person" test actually works, and that's not how the "true threats" exception to the first amendment is actually defined.
I understand that it might seem reasonable to you that someone "could" fear for their life as a result of the comments, or even that any reasonable person could do so, or even that they would. You might even be right. But as a matter of law, that doesn't matter.
Actually I believe the 'reasonable person' test is the standard, though I stated it imprecisely. I guess 'telegraphed the intent to actually commit harm,' is how I'd edit it if I still could as tptacek said.
On the other side, a statement about the standards for threats given by a former federal prosecutor.
So it sure looks like he's just bullshitting about the case. If somehow that's not true, Aqueous should work to improve on conveying that they actually have evidence for what they're saying. Hacker News is overrun with people making "reasonable sounding" points that are just factually wrong. And when they don't bother to offer a real argument for them, downvotes seem in order.
Look, everyone here seems to agree that the 'reasonable person' standard is the standard, though I misstated it in the beginning. My point is simply that two reasonable, disinterested people can disagree about what constitutes a threat. This does not seem to be a belief that justifies personal attacks, but apparently it is.
But I essentially just walked into a room full of knee-jerk libertarians and mumbled that maybe their blanket view of free speech perhaps deserves some scrutiny, especially when we are also discussing violence in a country with a long history of violence (i.e. people making good on threats). As a matter of fact we just had a case last week where an individual made a vague threat in private company, said company didn't make anything of it, and then he went and murdered 9 innocent people.
2) The "reasonable person" standard is not "what Aqueous, HN commentator, thinks a reasonable person would view as a threat", but a legal construct. While reasonable person is an ordinary language term, as these terms are used in courts, they establish precedents and criteria that are used. Ken White mentioned some criteria, tptacek mentioned some others. I don't see you offering any guidance beyond "seems reasonable to me".
3) As for the appeal to authority, you don't understand what that means. If you were citing actual evidence of anything, it might be appropriate to argue that dismissing it was an appeal to authority. But both you and White are basically saying "trust me, I know how the courts treat threats". In that context, the fact that he is a federal prosecutor, and therefore intimately acquainted with what courts do is quite relevant, and the fact that it really sounds like you're just making this up as you go along is also quite relevant. As I said, I do acknowledge that you could be right. It's just that you have absolutely failed to give anyone a reason to think so.
If you assert first order logic is complete, and I say it's not, then it's a good question which of us studied math. If we both try to give proofs/counterexamples, then it's no longer relevant. But this case is much more like the first than the second.
The worst I can remember is disbarring that prosecutor in North Carolina in the Duke Lacrosse case.
So we have a system of overly aggressive prosecutors thinking this is the best career path regardless of legal ethics, respect to the Constitution, etc.
It'll never end until we start pushing them back and demand better professionalism and respect.
You very-intentionally call it "Obama's DoJ". While in some sense it 'is his', I'm pretty sure you just call it that to associate it with a bundle of things that we are supposed to blame Obama for. It's what Fox News/GOP propaganda does when they want to build a narrative that everything involved with Obama is horrible. Examples: https://www.gop.com/obamas-epa-is-at-it-again/, almost everything on https://www.google.com/webhp?ion=1&espv=2&ie=UTF-8#safe=off&... which is largely published by NationalReview, ACLJ, etc, which are all conservative publications. This phrasing obviously is correct but it's always loaded and should be avoided.
You just post a comment of outrage ("wow, this is so amateurish"), pretending like there's no debate to be had around this and not opposing positions involved, and not arguing in defense of this. You pretend like there's no debate on the subject and lead us to agree with you.
You pretend like this is one instance in a long trend (without examples), leading us into a narrative that we actually have no reason to believe. You write as though you're in a crowd of people who are mad about the same thing, and therefore by appealing to the collective outrage that we're supposed to share, you reinforce the position and your solidarity with the crowd.
Does this kind of pandering-to-a-position have a name?
But it doesn't matter, because I wasn't arguing with the claim at all (and definitely don't feel qualified to). I just wanted to be very clear that I wasn't falling for, and was not tolerating, posts that pretend like we all agree that Obama's terrible and, god, what an embarrassment. That's not rational or effective discussion at all.
Are you saying that it wasn't amateurish? That somehow holding the president responsible for his branch of government is loaded? That most members here (at least most Americans) didn't support Obama?
Funnily enough, you call voices critical of Obama in a similar fashion to grandparent "propaganda" pretending like there's no debate to be had around this and no opposing positions involved, and not arguing in defense of this. You pretend like there's no debate of the subject and lead us to agree with you.
Does this kind of pandering-to-a-position have a name?
I'm not arguing the point at all. I don't know if it was amateurish. I don't have enough context to say.
I think the phrasing of the post is loaded in a counterproductive and mind-killing way. I think the phrasing sounds like propaganda, regardless of who it criticizes. I have no interest in arguing politics. I just want to condemn writing like that.
Poor debate tactics. There are no rules for engaging in debate on the Internet (or in the news).
Do you, lol, enjoy our federal government's recent posture in regard to this stuff? Do we need to say something positive about the DOJ for everything negative we say? Will that help you out?
You say there is no support for the position as though we're not all commenting on an article about it.
The article is a single story, which is evidence to but not justification for a blanket claim that the DoJ is an ongoing embarrassment. I want a post that assumes agreement on that claim to provide a lot more of a narrative than one example.
And I still want to protest against the use of poisonous rhetoric like "Obama's DoJ", which immediately shuts down any rational debate, as I argued above.
Most egregiously, he promised that he'd post for 3(?) days, every bill passed by Congress, prior to signing it into law. This is something that he could have done unilaterally, it was - and still is - entirely his own decision. Yet that promise was abandoned within the first week of his presidency.
That the promise was so quickly and thoroughly broken, even in cases for which there's no apparent special circumstances, is sufficient evidence to me that the promise was nothing but pandering, without any good faith behind it.
https://www.eff.org/deeplinks/2012/01/under-obama-administra...
I guess you can't expect that most of the words from a politician even made an impression as he orated them from the scroll/earpiece, less that they'll be remembered, less that they reflected any authentic intent or belief.
The lesson there is that if you get a subpoena without a gag order, you need to immediately broadcast it far and wide -- before the gag order comes.