Discourse.net

Proposed Italian Law Would Effectively Shut Down Most Blogs

Beppe Grillo — a writer who is new to me — warns of The Levi-Prodi law and the end of the Internet:

Ricardo Franco Levi, Prodi’s right hand man, undersecretary to the President of the Council, has written the text to put a stopper in the mouth of the Internet. The draft law was approved by the Council of Ministers on 12 October. No Minister dissociated themselves from it. On gagging information, very quietly, these are all in agreement.

The Levi-Prodi law lays out that anyone with a blog or a website has to register it with the ROC, a register of the Communications Authority, produce certificates, pay a tax, even if they provide information without any intention to make money.

As Grillo writes, the law, were it to be passed by the Italian Parliament, would set up conditions so onerous that most bloggers would just shut down.

I have some doubts that such a rule would be consistent with either Italy’s obligations to the EU or especially to the ECHR, but I don’t know either body of law well enough to be sure.

Maybe Robert Waldmann knows more about the Italian politics behind this, and whether the bill has any realistic prospects of enactment?

Addendum: Not that Wikipedia is the most reliable source, but this entry for Beppe Grillo is certainly colorful.

Council of Europe Sips at the Censorship Kool-Aid

Milton Mueller — a reliable source — writes, Council of Europe Works to Criminalize Political Expression:

The Council of Europe is pushing to extend the Cybercrime Convention to impose criminal sanctions on what it considers to be unacceptable forms of political or religious expression. The Cybercrime Convention was originally negotiated to respond to transnational problems such as theft of data, breaking into computers, computer-based financial fraud and the like. But now the Council is engaged in bulk unsolicited emails to promote the idea that web site content that is insulting or xenophobic is a cybercrime of the same order.

The bulk emails were sent to promote an April 1st meeting in Strasbourg, where the Council will promote its “Additional Protocol concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems.” Note the less than honest language: what the Council is targeting are not harmful “acts” of racism or xeonophobia, but the distribution of “written material, ideas or theories” which “insult publicly, through a computer system, (i) persons for the reason that they belong to a group distinguished by race, colour, descent or national or ethnic origin, as well as religion, if used as a pretext for any of these factors; or (ii) a group of persons which is distinguished by any of these characteristics.”

There’s lots more.

The COE has autonomous ideas, and this might be one of them, but it is also a place that the USA uses as a policy laundry. The way it works is that when our government wants something they can’t get from Congress, they go to the COE (or WIPO, or whatever), get it adopted in Europe, then go to Congress and say we our allies want us to conform to their standard….

Wikileaks: Julius Baer Bank and Trust Decides to Cut Its Losses

Leaving bad enough alone, Swiss Bank Drops WikiLeaks Case.

Here’s a link to the dismissal without prejudice. Which means that theoretically it could be re-filed. But it won’t be.

(Not in the USA, anyway.)

Wikileaks: Declan McCullagh's Version

Declan McCullagh has a helpful account of the mood in Judge White's courtroom the other day. See Judge: Wikileaks gets its domain name back.

Wikileaks: Judge Vacates Both Orders

The NYT has a good summary at Judge Reverses His Order Disabling Web Site, but the headline is a bit misleading. In fact the judge didn’t just vacate the TRO against Dynadot, as the full text of the order makes clear, he vacated both orders.

It’s no so much a ruling on the merits as a recognition that there are substantial First Amendment issues, a real question as to whether the court has jurisdiction over Wikileaks if it is based outside the US, and that the order wasn’t working anyway.

TROs and injunctions were part of the equity jurisdictions of courts (we’ve merged law and equity in the US, but the sources still matter sometimes). The court doesn’t quote it, but there’s an old maxim that “equity will not do a useless thing”. As much as anything, that, plus an excellent campaign of judicial education by EFF and the ACLU, explains the outcome.

Wikileaks: Hearing Tomorrow, Posturing Today

Tynan on Technology (beta), Bank Julius Baer emerges from hibernation, issues official statement (which Tynan kindly deconstructs for us).

Meanwhile, the next hearing is tomorrow.

Wikileaks Update

Updated docket

Notable filings include:

• Application by EFF and others to intervene as defendants or to appear as amici
• Motion by EFF and others to intervene, with proposed Answer and Counterclaims in Intervention

Thanks to James S. Tyre for making these available.

Wikileaks: Citizen Media Law Project Now Adopts the 'Two Injunctions' View

Yesterday in Wikileaks: One Injunction Or Two? I explained why I was somewhat dubious about the theory that the second order in the Wikileaks case amended the first. Now it seems that the place where I found that theory, the Citizens Media Law Project, may be coming around to my point of view. In Making Sense of the Wikileaks Fiasco: Prior Restraints in the Internet Age, David Ardia writes,

This second order is actually captioned as an "Amended Temporary Restraining Order" which led me to believe yesterday that the court had amended its first order that required the take down of the Wikileaks site. I've now come to realize that the judge intended no such amendment. I guess he felt it wasn't enough to shutdown the Wikileaks website, he'd add a second dose of judicial oversight to make sure things really went in the banks favor.

So, maybe we have a consensus?

Wikileaks Case: Dynadot Says 'Don't Blame Us'

Thanks to commentator 09F9 1102, a link to Media Statement on Behalf of Dynadot in re: Wikileaks Litigation:

The following constitutes Dynadot’s response to the Feb. 15 court order in the case of Bank Julius Baer & Co., Ltd v. Wikileaks, et al., which is pending in the United States District Court for the Northern District of California in San Francisco.

“This case raises First Amendment issues that are for the Courts to decide, not my client, Dynadot,” stated Garret D. Murai of Wendel, Rosen, Black & Dean, LLP, who represents Dynadot. “The only agreement by Dynadot was to comply with the Court’s previous order to preserve evidence, including preventing Wikileaks from transferring its domain name to another registrar and from changing its account settings – essentially, to preserve the status quo. Dynadot did not agree to remove the name server settings for wikileaks.org or to produce any information. This was requested by Julius Baer and granted by the Court.”

“It was explained to the Court that Dynadot only provides domain name registration services to Wikileaks. Dynadot is not the DNS provider nor is it the web host provider that maintains the content of wikileaks.org,” explains Kathryn Chow Han, in-house legal counsel for Dynadot. “Our company does not take a position on the merits of this litigation. However, if Julius Baer is concerned with the posting of its confidential documents on the wikileaks.org web site, it could have sought a more narrow remedy than seeking to have the entire wikileaks.org web site shut down.”

Wikileaks: One Injunction Or Two?

There seems to be real and continuing confusion about what exactly happened in the wikileaks case. (Translation: I’m confused, and so are some other people.) I’ve had a look at the PACER records — the official online docket — for the case, and I still am not as sure as I would like.

Here’s what we know for sure. The court issued its injunction against Dynadot, an order PACER describes as “ORDER by Judge Jeffrey S. White granting 5 Motion for Preliminary Injunction as to defendant DYNADOT LLC (jjo, COURT STAFF) (Filed on 2/15/2008) (Entered: 02/15/2008).”

The next entry on the docket is what I previously described as the “gag order”, and which PACER captions as “ORDER GRANTING AMENDED TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION. Signed by Judge Jeffrey S. White on 2/15/08. (jjo, COURT STAFF) (Filed on 2/15/2008) (Entered: 02/15/2008)”.

Julius Baer Bank and Trust v. Wikileaks page at the Citizen Media Law Project, describes the sequence of events as follows,

On February 15, 2008, the court issued what it captioned as an “Order Granting Permanent Injunction.” This order, which appears to be the result of a stipulation between the plaintiffs and Dynadot, Wikileaks’ domain name registrar and web host, required that Dynadot immediately disable the entire wikileaks.org domain name and account and remove all DNS hosting records.

Later that same day, the court issued an Amended Temporary Restraining Order that drops the requirement that Dynadot disable the entire Wikileaks.org domain. Among other things, the amended order enjoins the defendants from “displaying, posting, publishing, distributing, or linking to … all documents and information originating from [the plaintiffs’ banks] which are internal non-public company documents and/or which contains private client or customer bank records.”

From the official sources, I can’t tell you for sure that this is wrong, but I can tell you why it doesn’t seem all that likely: (1) the first order is a preliminary injunction, the second only a TRO; (2) the second order nowhere mentions that it is either amending or vacating the first order, which you would expect if it were; (3) the two orders are largely addressed to different parties and are about different things (yes, Dynadot is mentioned in the second one, but only as part of a large group); (4) the first order contemplates an order being drafted for Dynadot being dismissed with prejudice, the second doesn’t.

Now, if it’s true that if these are two separate orders, that doesn’t explain why the second one is captioned an “amended” TRO. What’s it amending? Either an earlier order, or an earlier draft order, I presume, but I haven’t figured out which.

More on Wikileaks Case

Wikilleaks’s account of the correspondence between it and Bank Julius Bear. Notable in this account is the odd failure of the demand letter to say what documents they wanted taken down.

Copy of the motion for injunction filed by Julius Baer in California via TPM Muckraker.

Also, note that I fixed the link in my previous post to now point to a locally-hosted copy of the California gag order.

Two Strange Orders in the Wikileaks Case

Federal District Court Judge Jeffrey S. White of the Northern District of California has issued a pair of (unprecedented?) ex parte orders in a case brought by Bank Julius Bear against Wikileaks.org. Because there are two separate orders, much of the early reporting was a bit confused — indeed I got confused, which is why I’m posting this substantially amended post and taking down my older, not-very-accurate posting.

One order requires an ISP, Dynadot, to take down all DNS records pertaining to the wikileaks.org site.

“Dynadot shall immediately clear and remove all DNS hosting records for the wikileaks.org domain name and prevent the domain name from resolving to the wikileaks.org website or any other website or server other than a blank park page, until further order of this Court.”

I presume Dynadot was their registrar as this had the effect of making the wikileaks.org domain inoperative. (The only vaguely similar case I know of is when wab.com was surrendered to the feds as part of a plea deal in a criminal federal copyright infringement case — but as the government isn’t the plaintiff here that’s not very similar.)

This isn’t a classic prior restraint on speech since it reaches the registrar not the speaker — but it’s close enough to stopping the delivery trucks on a newspaper that I think this aspect of the decision is a cause for some First Amendment concern. The IP numbers for the site still work, though. Try 88.80.13.160.

The second order is a much broader gag order [corrected link] that enjoins everyone sued by the plaintiffs — wikileaks, everyone connected by the parties, ten John Does, their ISP, lawyers, and anyone working “in concert” with them, and “all others who receive notice of this order” (!) and orders them not to do any of the following,

displaying, posting, publishing, distributing, linking to and/or otherwise providing any information for the access or other dissemination of copies and/or images of the JB Property … and any information or data contained therein, including on [listed websites or other websites they control]

Leaving aside the sweep of the order — on what theory does this court have jurisdiction of everyone who learns of the order? — this seems like a classic prior restraint and is thus presumptively unconstitutional. Whether any of the very limited exceptions might apply is hard to tell from the documents available, but I’m pretty skeptical. Assuming that the information was in fact stolen, one has to admit that the case law relating to the retention of stolen documents is confusing: on the one hand the law clearly allows the owner to demand their return. On the other hand, as far as I know, the very strong presumption against prior restraints on publication has not been overcome as regards to parties who receive the information from a person other than the thief. Note, however, that even after the Progressive case, the law on prior restraint is only that it is a very very very high bar — not foreclosed utterly.

The orders in this case came in the context of an ex parte hearing on a preliminary and emergency injunctive request from Bank Julius Baer of Switzerland which alleges that wikileaks is publishing secret bank information.

According to Wikinews, ‘Wikileaks.org’ taken off line in many areas after fire, court injunction,

The documents allegedly reveal secret Julius Baer trust structures used for asset hiding, money laundering and tax evasion. The bank alleges the documents were disclosed to Wikileaks by offshore banking whistleblower and former Vice President the Cayman Island’s operation, Rudolf Elmer.

More information about the underlying dispute at cryptome.org and this wikileaks mirror site.

Wikileaks-Dynadot Order

Here’s the text of what I think is the actual Dynadot injunction in the Wikileaks case.

It orders Dynadot to disable the DNS for wikileaks and to preserve certain records. It doesn’t say anything about the order applying to the rest of us.

I found it via this somewhat involved URL which I got off Google.

As regards Wikileaks, at least:

Google+censorship=Google^*

---

^*Not applicable in China

Not Exactly a Prior Restraint -- But Close

Old confused post removed - see the new improved posting at Two Strange Orders in the Wikileaks Case

A Fan Writes (and I Reply)

A fan, presumably cross about this, writes:

Aren’t you a little embarrassed to be connected to an organization that is defending CAIR?

You’ve got to be. You’re a smart man.

If you are afraid to speak up about the Islamic influence on our society, then you have submitted and are already a Muslim. Do you really, in your heart, want this country to become Islamic? (Even 1% Islamic?) Would that be a good thing for your children? How on earth do you rationalize defending such a people!!

Michael Savage is a great man, and loved by millions! He is dead on about the Muslims.

Don’t think that you can remain an advocate of EFF, and emerge unscathed when the tide finally turns against CAIR. Doesn’t your reputation among people who know you, concern you at all?

Please consider withdrawing your support for EFF.

Remember:

In 2007 Islam and Judaism’s holiest holidays overlapped for 10 days. Muslims racked up 397 dead bodies in 94 terror attacks across 10 countries during this time… while Jews worked on their 159th Nobel Prize.

Many who love you are dying inside from sadness, because of what you are doing.

signed, a friend

I replied:

You are defending racist and bigot Michael Savage?

The man trying to trash the First Amendment while relying on it (justly) to protect him from charges of hate speech?

And you expect me to be embarrassed?

The first amendment protects everyone. Including you.

And yes, my children are better off in a multi-cultural society — it will help prepare them to deal with the world as it is.

I am on EFF’s Advisory Board, and, yes, I’m rather proud of it.

Incidentally, estimates of the number of Muslims in the USA appear to vary enormously, from 1.1 million practicing Muslims on the low end (about 1/3 of 1%), to 2.2 on the more serious of the high end, to estimated numbers as high as 7 or 8 million (well over 2%) that appear to have been calculated with less precision and seek to include the non-practicing as well as those attending Mosque. (CAIR’s high number is among those I’m dubious of.)

And finally, for the avoidance of doubt, I know fairly little about CAIR and thus don’t have a view of it as an organization. I do think I know something about fair use in copyright law, and I certainly do have strong views about bullies who try to abuse copyright law to silence their critics.

This Sounds Like a First Amendment Issue to Me

It seems Florida has a law that makes it much more difficult to re-sell a used CD. Among its provisions is a prohibition on stores paying cash for used CDs — they can only give store credit. And stores must hold CDs for 30 days before reselling them. Worst of all, if reports are to be believed (I haven’t seen the statute) stores must subject sellers of used CDs to the third degree:

No, you won’t spend any time in jail, but you’ll certainly feel like a criminal once the local record shop makes copies of all of your identifying information and even collects your fingerprints.

On top of that, stores that want to sell used CDs despite all these discouragements will have to post a $10,000 bond!

CDs, even used ones, are a form of speech covered by the First Amendment. The idea that one must register to traffic in speech strikes me as presumptively unconstitutional. I wonder how this statute could survive strict scrutiny (which I assume would be what applies?) given the assertion at ars technica that in fact there is “no proof that [stolen CDs] is a particularly pressing problem for record shops in general.”

Cites to the text of the bill, or thoughts from First Amendment mavens most welcome.

The Paranoids Were Right: NYC Cops Harassed Protestors at RNC Convention

Buried deep, deep inside the New York Times, right at the bottom of a page, is this little bombshell: the paranoids were right.

Records Show Extra Scrutiny of Detainees in ‘04 Protests: When more than a thousand people were swept up in mass arrests during the 2004 Republican National Convention, defense lawyers complained in court that the protesters had to wait much longer to see a judge than those accused of far more serious crimes like robbery or assault.

Now, newly released city records not only put precise numbers to those claims, but also show the special scrutiny the New York Police Department gave to people arrested in or near the convention protests.

At the height of the mass arrests, on Aug. 31, 2004, demonstrators — and some people who said they were bystanders just swept up by the police — were held for an average of 32.7 hours before they saw a judge, according to city statistics. For people charged with crimes that the police decided were not related to the convention, the wait to see a judge was just under five hours.

…

The vast majority of those arrested were held on charges of roughly the same weight as a traffic ticket, and the law does not require fingerprinting for those offenses. However, the Police Department determined months before the convention that no one would be given a summons; instead anyone taken into custody would be sent through a full arrest process, including fingerprints and criminal record checks. Police officials said that for public safety, it was important to use fingerprints to confirm identities.

Not to mention that the special detention facility the protesters (but not the murders) were shipped to was so unhealthy that 40 cops have “submitted medical reports, saying they became ill after working there.”

Can Workers Be Fired for Off-Duty Blogging?

For most jobs — maybe not mine — you can probably be fired for blogging during working hours unless the boss approved it as a work-related activity. But what about off-duty blogging? On controversial topics? This interesting article from today’s New York Law Journal looks at the rights of bloggers (especially bloggers in New York) relating to their jobs.

And New York has some interesting relevant law,

In New York, an employer may not discharge, discriminate against, or refuse to hire employees because of their participation in “legal recreational activities” off the employer’s premises during nonworking hours unless the activity “creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest.” N.Y. Lab. Law §201d(2)(a)©, (3)(a). The statute defines “recreational activities” as including “any lawful, leisure activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.” Although very few courts have interpreted this statute (and none have applied it to blogging), courts that have analyzed the statute have declined to give “recreational activities” an expansive interpretation. See, e.g., McCavit v. Swiss Reinsurance America Co., 237 F3d 166 (2d Cir. 2001) (holding that dating is not a “recreational activity” protected by the New York legal recreational activities statute).

Employees can be expected to argue that blogs that may be offensive or embarrassing to the employer are lawful recreational activities under the law. Employers, however, can be expected to press for a narrow interpretation of the law that recognizes the employer’s right to manage its business and protect its reputation and confidential information.

There’s lots more where that came from.

Update: Ack! It’s behind a paywall. I try never to link to stuff like that if I can avoid it, but now that I’ve posted this, I don’t think I can very well take down this item.

EFF Files FOIA to Get Info on Son of Carnivore

I'm on EFF's Advisory Board, but I have nothing to do with this fine project.

EFF Sues for Information on Electronic Surveillance Systems

FBI Withholds Records on Tools to Intercept Personal Communications

Washington, D.C. - The FLAG Project at the Electronic Frontier Foundation (EFF) filed its first lawsuit against the Department of Justice Tuesday after the FBI failed to respond to a Freedom of Information Act (FOIA) request for records concerning DCS-3000 and Red Hook -- tools the FBI has spent millions of dollars developing for electronic surveillance.

DCS-3000 is an interception system that apparently evolved out of "Carnivore," a controversial surveillance system the FBI used several years ago to monitor online traffic through Internet service providers. One Department of Justice report said DCS-3000 was developed to "intercept personal communication services delivered via emerging digital technologies" and that it was used "as carriers continue to introduce new features and services." According to the same report, Red Hook is a system to "collect voice and data calls and then process and display the intercepted information."

The FLAG Project first filed its FOIA request for information about the surveillance systems on August 11, 2006. The FBI acknowledged receipt of the request, but the agency has not responded within the time limit required by law.

"Recent allegations of domestic spying by the U.S. government already have both lawmakers and the general public up in arms. Americans have a right to know whether the FBI is using new technology to further violate their privacy," said EFF Staff Attorney Marcia Hofmann. "The Department of Justice needs to abide by the law and publicly release information about these surveillance tools."

EFF's FLAG Project, launched last month, uses FOIA requests and litigation to expose the government's expanding use of technologies that invade privacy.

"Transparency is critical to the functioning of our democracy, especially when the government seeks to hide activities that affect the rights of citizens," EFF Senior Counsel David Sobel, who directs the FLAG Project. "We have recently seen numerous instances where federal agencies have sought to conceal surveillance activities that raise serious legal issues."

For the full FOIA suit filed against the Department of Justice:

http://www.eff.org/flag/dcs/dcs_complaint.pdf

For more on the FLAG Project:

http://www.eff.org/flag/

'Terrorist TV' as Financial Crimes Enabler?

On Sunday NPR ran an item on the prosecution of Javed Iqbal for allegedly providing supposedly illegal access to al-Manar, Hezbollah's satellite channel. The item summarized remarks from a spokesman for the Coalition Against Terrorist Media as follows:

He says the most dangerous thing aired are the calls to send money to Hezbollah. Al-Manar, he says, sometimes broadcasts Hezbollah bank account numbers to make wire transfers easier. That, he says, is when Al-Manar stops being a media outlet protected by First Amendment rights and becomes an active operational component of a terrorist group.

And, depending on the facts, he may have a point: If indeed the station isn't just a news channel but a fundraising conduit for transactions prohibited by IEEPA, then it's an open question whether it falls under the news exception to IEEPA. I doubt that one example of flashing a bank account number on screen would suffice to pollute the entire station (although the law in this area is so uncertain that I can't even be absolutely certain of that); but it is very plausbile there is some level of regular and routinized fundraising conduct that would suffice to take al-Manar outside the news exception to IEEPA.

Convicting Mr. Iqbal on a conspiracy charge based on these facts ought to require that he know about the illegal conduct -- otherwise he's a bit like the rental car agency that rents to a bank robber -- but this is the first account of the case I've hear that makes the government's case sound like it might be going somewhere.

More On the al-Manar 'Terrorist TV' Case

The NY Times had a story a story on Javed Iqbal, the al-Manar 'Terrorist TV' Case, with a stunning photo of the defendant's back yard. With eight big satellite dishes, it's safe to say this wasn't a covert operation!

There's a follow-on today, which notes that Mr. Iqbal is a Pakistani who has lived here for two decades.

I've been sent a copy of the indictment. It's quite a surprising read: the sole charge is conspiracy to violate IEEPA, with the providing of the TV services being charged as the overt acts in furtherance of the conspiracy. This is either desperate or clever on the government's part, or maybe just evil. Let me explain.

The indictment doesn't say what the government alleges the conspiracy's actual ultimate plan might be other than that it violates IEEPA. The selling of access and actual provision are not alleged to be actual crimes, but are just described as the overt acts in furtherance of the underlying (unspecified) conspiracy. The co-conspirators are said to be "others known and unknown" but no actual names are provided save those of the people involved in what appear to me to be the legal acts -- at least insofar as IEEPA is concerned --of providing TV signals.

I am not a criminal law expert, but it's pretty basic crim law that you can't be convicted of conspiring to do something legal. You don't actually have to comimt a crime, but one of your co-conspirators has to have had illegal plans of which you were a part. And what that illegal thing might be other than the service provisioning and installation isn't visible from this document.

The affidavit for the search warrant isn't much better; indeed in some ways it is worse. As far asa I can tell, the affidavit has two main claims of illegality. First, that the defendant said the broadcasts were illegal (note that the affiant himself never comes out and says they're illegal in so many words himself -- the affidavit is very artful in this regard; he sure makes it sound bad though). I don't know if the defendant was misinformed, intimidated by the listing of al-Manar as a terrorist groupl, or if he was just puffing the goods by trying to make them sound illicit, but even honest error about crime does not a conspirator make.

In fact, to my admittedly untrained eye the affidavit has "shopping expedition" written all over it -- it hints hard that there may be all sorts of secret, dangerous, encrypted messages hiding in the terrorist broadcasts or in the defendant's computers that the government wishes to seize and hold for a long time. Yet it doesn't give much in the way of specific reason for that belief except that there sure are a lot of computers, USB sticks, hard drives and other gear in there, and there are terrorists on the other end, and our experience says they must be up to something nasty.

Unlike the indictment, the search affidavit mentions that there might be a charge of material support under 18 USC sec. 2339b. On its face that would seem a potentially more plausible charge than the IEEPA allegation, for sec. 2239 provides in part:

Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d) (2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).

It's a real stretch to say that just providing access to TV shows is "material support" but if money changed hands that might do it. Of course, finding a statutory hook for the government's case only brings us back to the First Amendment issues I mentioned earlier, but this time more directly. It's quite odd, therefore, that the indictment didn't mention the material support charge at all, and I wouldn't be surprised if this gets fixed in a superceding indictment.

But let's back up a bit first: Other than alleging the re-sale of al-Manera TV -- which it doesn't clearly say is illegal -- the indictment's only other fact of substance is the defendant's foreign travel to arab countries. I know that judges are pretty free and easy sometimes on warrants; I know that this is most likely to be true in a case where the government shouts 'terrorism'. But I have to wonder -- and would love to hear from someone more expert than me -- whether this affidavit when stripped of all the heavy breathing and filler actually would survive a suppression montion. I'm guessing that one issue will be what the DA's investigator believed or could have believed: did he have a good-faith reasonable belief that the transmissions were illegal, even if they were not?

Let's back up some more. Suppose -- just suppose -- that the US Attorney's office understood the First Amendment issue real well, and indeed have actually read IEEPA. I would expect nothing less from the office in the Southern District. Then either they are playing their cards real close to the chest, which remains possible, or this was a shopping expedition, which is also possible -- or this was just a conscious abuse of the system to shut down something hateful. If it should turn out that the operation was conceived as a means of shutting down access to these broadcasts by seizing the equipment (return of which will take months if not years ... and they usually don't come back undamaged either...) then that would be a serious First Amendment violation. But it would be one that our legal system tends to ignore: it neither punishes the perpetrators nor well compensates the vicitms.

In the end, most of this is speculation. The only certain fact is that indictment is very vague on the key point of what exactly the crime might be. From reading it, it's not clear to me whether the government claims that there was some further future plan of which these (legal) actions were but a part, or if the ultimate claim is only that these (in my opinion almost certainly legal) acts took place? If the claim is of some grander plan, it is awful vague -- perhaps because the government knows or hopes that it's seized the evidence or because they're hoping to catch a bigger fish. If on the other hand the claim is that this indictment has the whole story, it's a very worrying attempt to extend IEEPA where I don't think it will go.

One minor note: the affidavit attached to the indictment describes the defendant as having a Pakistani passport and a US alien registration card (a green card), which is consistent with the NYT account noted above. So Mr. Iqbal is probably a permanent resident. I hope that takes us out of Kleindienst v. Mandel territory, for that is indeed an ugly place to be.

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Pdf of Complaint, and pdf of Search Warrant Affidavit.

Can US Government Prosecute Providing Access to Hezbollah TV as Support for Terrorism?

When I saw the headline New Yorker Arrested for Providing Hezbollah TV Channel, my first though was, how ironic that the US government is so worried about protecting TV companies against copyright violations that they would use criminal law to protect Hezbollah's mouthpiece Al-Manar.

But, it seems, it's nothing of the sort:

A New York man was arrested yesterday on charges that he conspired to support a terrorist group by providing U.S. residents with access to Hezbollah's satellite channel, al-Manar.

Javed Iqbal runs HDTV Corp., a Brooklyn-based company registered with the Federal Communications Commission that provides satellite television transmissions to cable operators, private companies, government organizations and individual customers.

...

The U.S. Treasury Department in March designated al-Manar a "global terrorist entity" and a media arm of the Hezbollah terrorist network. The designation froze al-Manar's assets in the United States and prohibited any transactions between Americans and al-Manar.

It is always possible that the news story left something out; the government could be alleging perhaps that the retransmissions are sort of front for illegal funding of Hezbollah or even al-Manar. Bans on moving money to groups labeled as terrorist are, in the main, fully within the powers that Congress has given the President. But for present purposes -- and mindful that this is the Bush administration we are talking about here -- I'm going to take the reported facts at face value and assume that either no money changed hands or only the fair market value for the right to rebroadcast.

There are two obvious questions here: does the statutory regime in fact ban redistribution by a US citizen of a so-called "terrorist" news channel, and even if it does, would such a ban be constitutional.

Let's start with the statutory question.

According to the press release announcing the designation of al-Manar a "global terrorist entity", the action is based on Executive Order 13224; al-Manar has also been on the U.S. Department of State added al Manar to the Terrorism Exclusion List since December 2004.

EO 13224 relies for its authority on the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (IEEPA), the National Emergencies Act (50 U.S.C. 1601 et seq.), section 5 of the United Nations Participation Act of 1945, as amended (22 U.S.C. 287c)(UNPA), and section 301 of title 3, United States Code -- and on the President's inherent constitutional powers.

IIEPA is the key statute here, and I'm going to focus on it. The Emergencies act deals with the procedures for declaring and ending emergencies; it doesn't, if I recall, give the President substantive authority relevant to this issue although I haven't gone back today to check. The UN Participation Act gives authority to punish violations of UN sanctions set by the Security Council. I don't know of any sanctions order that could be relevant here, but am happy to be educated if there is one. 3 USC sec. 301 gives the President the power to delegate powers, but doesn't give any independent statutory authority.

IEEPA gives the President very broad powers to block transactions and freeze assets in the event he declares an emergency requires it. There is, however, a critical and relevant exception in IEEPA, contained in 50 USC sec. 1702:

(b) Exceptions to grant of authority
The authority granted to the President by this section does not include the authority to regulate or prohibit, directly or indirectly--

...

(3) the importation from any country, or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds. The exports exempted from regulation or prohibition by this paragraph do not include those which are otherwise controlled for export under section 2404 of the Appendix to this title, or under section 2405 of the Appendix to this title to the extent that such controls promote the nonproliferation or antiterrorism policies of the United States, or with respect to which acts are prohibited by chapter 37 of title 18.

The exception to the export ban excludes information relating to nuclear secrets and things which might trigger the espionage statutes. It doesn't apply to imports at all. So, it's pretty clear that IEEPA itself does NOT prohibit retransmission of foreign broadcasts, and probably doesn't even prohibit paying the station a reasonable fee for the right to rebroadcast (as that would be an "indirect" prohibition or regulation).

As a result, at as described in the news article, this prosecution appears to be for conduct which is not in fact in violation of IEEPA, nor of Executive Order 13224 -- unless the President has inherent constitutional power to block the importation of foreign speech. [Note that this entire discussion is separate from a different line of cases upholding the government's right to require that some imported speech (Canadian evironmentalism, cf. Meese v. Keene, 481 U.S. 465 (1987)) be labeled "political propaganda". That was about labels, not about importation.]

The constitutional question has two parts: First, if the President has any relevant inherent authority to criminalize speech on national security grounds; Second, whether the First Amendment would trump this authority if it even exists (and whether the First Amendment would trump whatever relevant statutory authority Congress might have granted that I might have failed to detect).

I have read a lot of pretty far-out stuff defending the President-as-King theory of the US Constitution, including some that appear to suggest the President could grab any of us off the street, call us enemy combatants, and lock us up in secret military prisons for all eternity and that courts might for some reason lack the jurisdiction, authority, or expertise to object, but I have yet to see anyone serious suggest that the President could create new types of criminal liability that would enforceable in actual courts where the Bill of Rights applies. I could waste a lot of time explaining why this is a ludicrous idea, but it's really too silly to bother. (See my The Imperial Presidency's New Vestments, 88 Nw. L. Rev. 1346 (1994) and Still Naked After All These Words, 88 Nw. L. Rev. 1420 (1994) if you want to know about how I approach these issues.)

Suppose, however, that I'm wrong about the statutory regime and Congress has purported to give the President the power to criminalize the importation of a foreign TV show or feed. Does the First Amendment allow that? I think the answer is that it does not, but here one proceeds with a slight degree of caution, as the final answer might depend on the content of the imported speech. At some point there is no question that Congress can criminalize foreign (or even domestic) speech: Imagine, for example, that the speech consisted of a series of targets, and the times that they should be bombed. Re-transmitting that sort of speech would undoubtedly create criminal liability (although the prior restraint problem could be much more complex). I am not as expert as some others in the intricacies of First Amendment law, but the standard answer is that in the absence of incitement to violence on fairly specific targets the speech cannot be criminalized. Thus, for example, "Kill Fred Smith" is a problem; "Death to America" or "Kill the people who oppose our just cause" might not be sufficient to overcome the test set out in Brandenburg v. Ohio, 395 U.S. 444 (1969) and many subsequent cases, depending on the full context.

None of the above seems that poorly understood or controversial; it is all stuff you would expect any federal prosecutor to know. Which really makes me wonder if I've missed a statute, or if there's something else in the indictment.

I've written this all rather hurriedly, so I welcome comments and corrections and will update as needed.

First Update: The seller is not a US citizen: Mr. Iqbal is in America on a visa, his lawyer said. If the visa doesn't include the right to work, and he's selling access, that could be an immigration violation.

School Board Persists in Book-Banning Folly

It's election season here in Miami and that means it's time for stupid posturing with taxpayer money. Today's installment is brought to you by the School Board, which voted to waste a lot of money appealing a case it has no hope of winning:

Continuing its efforts to remove a controversial children's book, the Miami-Dade School Board voted this afternoon to appeal a federal judge's ruling that forced the district to keep Vamos a Cuba and 23 other titles on school library shelves.

In a 5-2 decision, with two members absent, the board said it wanted to protect the right of the district to determine the content of school libraries, rather than leave it up to a judge.

''Do we have a right to protect our children?'' said board member Frank Bolaños, who joined Agustín Barrera, Perla Tabares Hantman, Ana Rivas Logan and Marta Pérez in voting for the appeal. "I think we have the right and responsibility to do that.''

...

The debate has become a passionate cause for some Cuban exiles, who have cited errors in the book and believe it omits so much about life's hardships under Castro as to render it inaccurate and misleading.

The issue intensified during the spring as two review committee and Superintendent Rudy Crew said the book should stay on shelves, only to be overruled by the School Board in a politically charged 6-3 vote.

The debate inspired attorney Manny Anon to challenge Barrera in next month's elections and has a been a powerful political undercurrent in outgoing Bolaños' Republican-primary challenge to incumbent state Sen. Alex Villalobos.

That last bit, buried as it is in the Herald's article, strikes me as the real key to the whole sordid affair: like so many local pols before him, Bolaños is playing the Castro card to get elected to something.

Of course, given current events, this may the last ride for that particular hobbyhorse. As it is, the whole show ws starting to wear thin -- this time the relevant parents' committees and the school bureaucrats both stood up against book banning. Only the craven School Board took a dive. Around here, that's actually progress.

US Court Finds We Have an Official Secrets Act

Secrecy News has the scoop at Recipients of "Leaks" May Be Prosecuted, Court Rules.

Basically -- for the first time and I'd argue contrary to the First Amendment and legislative intent -- the a US court has held in US v. Rosen (the AIPAC case), that private citizens who have no contractual obligations to keep government secrets, and no security clearances, can nonetheless be prosecuted under the Espionage Act for sharing classified information they receive.

Judge T.S. Ellis, III (ED Va - where else?) argues in his opinion that this ruling is but a narrow one since it requires that the private citizen know the information is classified and that release would be potentially detrimental to national security, intend to share it, and do so knowing that this is illegal.

Seems to me that Nixon would have used this argument to prosecute newspapers for publishing the Pentagon papers; perhaps, given what we know now, they might have won on the merits, but surely the fear of jail (for Espionage) would have acted as a substantial deterrent to that and other important publications.

Indeed, it's not hard to see this ruling as pushing us well down the slippery slope to a world in which in practice only Official Leaks, those giving the pro-administration side of a story will be published.

Don't look for the 4th Circuit, the most statist in the nation, to overturn this. But I'll bet even Scalia will vote to overturn it, as will the Supreme Court with at least six judges in the majority.

I Told You So

As so many of us predicted, law designed to prevent cybersquatting can too easily be mis-used to intimidate core First Amendment speech. Via The Trademark Blog, here's a link to Blogger shuts down Web site that mocked legislator in the Honolulu Advertiser.

An irreverent local blogger has chosen to give up a Web site making fun of state Rep. Bev Harbin after Harbin threatened to take him to court under the state's law against cybersquatting.

Jon Asato, a tour guide and writer, said he agreed to drop the domain names BevHarbin .com and BeverlyHarbin.com after Harbin sent him two letters warning of a civil lawsuit. Asato said his Harbin Web site, which had cartoons that likened Harbin to The Incredible Hulk and the Joker character from the movie "Batman," should be protected as free speech.

The law at issue is a state law, not the federal Anti-Cybersquatting Consumer Protection Act. And I think that any law which reached this sort of political criticism would be unquestionably unconstitutional. But fighting those fights is expensive, and most regular citizens don't have the money and the time to do it. Intimidation works.

Apple v. Does: We Won

The California (state) Appeals court issued its ruling today in Apple v. Does, a case in which I participated in a minor way as a signer of an amicus brief.

We won: The Court held that the Stored Communications Act prevents Apple from requesting the emails it sought from the ISP; instead Apple must go to the account holders directly, giving them notice and a chance to argue why the orders should not be granted.

The Court also held that the website editors are journalists entitled to claim the benefit of California's Journalist Shield Law, which prevents them from being held in contempt for not disclosing sources, and also lets them claim the First Amendment's protections for journalists.

This is, I fervently believe, the correct result. Congrats to EFF, and to Lauren Gelman who organized our brief.

J. Edgar Would Be Proud

J. Edgar Hoover would be proud,

TPM Muckraker: This morning's newspapers are ablaze with the outrageous news that the FBI was trying to get its hands on over 200 boxes of files once belonging to legendary investigative journalist Jack Anderson.

What the papers didn't report was the truly ugly extent to which the bureau has gone to achieve their goal -- such as manipulating Anderson's elderly widow to sign a document she apparently didn't understand.

The rest of us should be ashamed.

Might I add that the administration's novel legal theory here is that it is illegal for any of us to possess a classified document.

How long until we see the first sting operations against reporters in which a "source" offers to pass them secret documents and then the FBI swoops down on them?

It's Got Me Mystified

It's clear there's a lot I need to learn about how people feel about religion -- especially other people's religions.

Personally, other people's religious beliefs don't threaten me except for the ones that incite people to violence or to unconstitutional legislation. (And, please, let's not get into historical debates about precisely which religious sects that might be...). Thus, for example, I got myself into a little trouble last week by suggesting that during the stike UM classes might meet in near-by local religious establishments, including a local Catholic church. It seems that, contrary to my expectations, a small but appreciable minority of our students would be troubled by this, although I don't know if it's because, being church goers, they object to the profanation of the church's common room (it's not the main sanctuary, but I don't know if that was clear at the time), or if they belong to a different tradition and would find entering a Catholic church in some way uncomfortable. Incidentally, since this same space is our local precinct's polling station, and I and everyone in this neighborhood have been voting there for years, if it's true that there's something off-putting about the space we have a bigger problem than where to hold classes...

Which brings me to my complete mystification about this post at TalkLeft: Jerry Falwell: Jews and Muslims Can't Go to Heaven:

Jerry Falwell gets further and further out there. His latest knucklehead theory is that Jews and Muslims can't go to heaven.

While I am a strong supporter of the State of Israel and dearly love the Jewish people and believe them to be the chosen people of God, I continue to stand on the foundational biblical principle that all people -- Baptists, Methodists, Pentecostals, Jews, Muslims, etc. -- must believe in the Lord Jesus Christ in order to enter heaven. -Jerry Falwell

Blogger Jason Weisberger at Just Plain Bother has co-opted Falwell's comments and urges you to click here and demand Falwell apologize.

Eh? "Knucklehead theory"? "Apologize"?

First off, this is hardly some new theory of Falwell's: as I understand it, it's pretty much routine, main-stream, evangelical Protestantism. And it's not limited to Jews and Moslems: many evangelicals, including I'd suspect Jerry Falwell, believe that because only those 'born again' can go to Heaven, it follows that Catholics, not being 'true Christians', are excluded too (or damned, if you prefer). And many undoubtedly would say the same about members of The Church of Jesus Christ of Latter-day Saints, Unitarians, Jehovah's Witnesses, Hindus, Buddhists, Sikhs, and Scientologists.

Second, Falwell is surely entitled to believe whatever he wants about what it takes to get to Heaven. And to preach it. So long as he isn't threatening anyone with violence in this life, nor asking the state to impose any disabilities on them, nor seeking for special government cash or legal status for his own church and faithful, why on earth should he have to apologize for professing his faith, even if might offend Jews, Moslems, Catholics, Mormons, Quakers, Buddhists and many others?

And anyway, why should people of other faiths be offended? Or even care? If some people believe something about an afterlife which happens to differ from my beliefs, what difference is it to me -- so long as they neither try to speed me towards the afterlife nor try to limit me in the enjoyment (or even propagation) of my own views in this one? Not being part of his flock, Falwell's views on the afterlife simply have no relevance to me. Isn't letting him preach them the essence of the First Amendment bargain?

But evidently this is not as widely shared a view as I would have expected and hoped.

Wireless Woes at the Miami-Dade Public Library

The Miami-Dade Public Libraries, where I tend to hang out on Saturday afternoons because that is where the kids' chess club meets, has a nice new new free wireless service but it's infested with about the most restrictive web filters and port blockers it has ever been my misfortune to encounter.

Not only do they block digicrime.com, but they block download.com. And many other harmless sites also. And of course they block the archive.org versions of those pages too.

The library PC's in the adult section of the library also operate under this highly censored regime. But when one tries to reach a blocked web site on one of those machines one gets an informative error message, and it is possible to request an override code from a librarian. In contrast, the wireless blocking happens in an a most uninformative way: Trying an http connection to a blocked site on the wireless access produces a long delay, followed by this informative popup:

The connection was refused when attempting to contact 192.168.99.32

How many people are likely to know that 192.168.xxx.xxx means a local network, meaning something has intercepted one's request?

Even armed with the knowledge that one's browsing is blocked, one is still out of luck: at present the library has no means to override the blocking for wireless users. We can of course use a desktop (if one is available – they're quite popular), and ask for an override code; this workaround means that the blocking has a decent chance of skirting the First Amendment rules that constrain library content censorship.

And did I mention that anything other than port 80 (http web access) and port 443 (https secure web access) appears to be blocked too? I am unable to telnet or more importantly to ssh to my mail server. Why on earth should the library block me getting my email? Indeed it in was the search for a proxy tunneling tool that I hit the download.com block; there may be a method to their madness. (Is there a way to do ssh over http?)

The branch librarians are sympathetic, especially about the blocked sites, but they don't control the filter list or the wireless port blocking policies. And they don't get "ports" at all. All that computer stuff is handled by some distant, faceless, unresponsive central administration. So my requests for changes to the policy, so far, go unheeded, including written requests a week ago to unblock a site, and open port 22.

Only mildly relevant links:

Miami-Dade Public Library Internet/Workstation Policy

Miami-Dade County Liability Disclaimer and User Agreement (which states, notably, "Anyone using this system expressly consents to administrative monitoring at all times by Miami-Dade County and its authorized agents and contractors. You (User) are further advised that system administrators may provide evidence of possible criminal activity identified during such monitoring to appropriate law enforcement officials. If you (User) do not wish to consent to monitoring, exit this system now." This would be a good exam question for someone as it suggests a rather broad waiver of the right to anonymous speech...)

Hong Kong and junk fax

Hong Kong has “simplified” its Code of Practice on the Procedures for Handling Complaints Against Senders of Unsolicited Fax Advertisements, according to Xinhua. Under the new rules, the consequence of two substantiated complaints for sending unsolicited faxes is disconnection of the sender’s telephone lines (all of them). Now, I know that a telephone operator’s asserting the right summarily to disconnect people from the network is a dangerous thing — and that’s all the more true when the operator is state-run. The basic genius of the first amendment is that avenues of communication should be removed as far as possible from state control, and it’s not hard to imagine this used as a weapon against political dissidents who see a fax or two go astray. But still — the death penalty for junk faxers! A guy can dream, can’t he?

Italy Censors Web Site for Showing Pope in Nazi Uniform

Robert’s Stochastic thoughts brings first word of a very interesting incident in Italy. In his translation (slightly cleaned up here):

The magistrate Marco Patarnello has ordered the [temporary] preventive seizure of the site indymedia [http://italy.indymedia.org] for vilification of the Catholic faith and of the Pope. The prosecutor Salvatore Vitello requested this action, since an investigation by the DIGOS [police specialized in crimes against national security] revealed that there were montaged photos on the site showing Pope Benedict XVI in a Nazi military uniform.

In the leading leftist site, the Pope was called a “Nazi” and criminally insulted with insults in Spanish. Indymedia belongs to the Brazilian firm Imc, so the prosecutor has decided to make an official request that foreign judges take note of the act.

There’s more at the site.

Internet lawyers will of course be waiting to hear what Joel Reidenberg has to say about this one. (Joel is the author of a very influential paper arguing that France had every right to try to stop Yahoo’s US servers sending ads for Nazi memorabilia into France, and that US courts should not be shy about helping out.)

As Granfalloons Go, It's a Good One

Here’s today’s quiz question. It’s a doozy.

What do the following people and organizations have in common?

• Jack M. Balkin
  
• The Center for Individual Freedom
• Julian Dibbell
  
• Feedster, Inc.
  
• The First Amendment Project
  
• A. Michael Froomkin
  
• Gawker Media, Inc.
  
• Gothamist, LLC,
  
• Groklaw
  
• Happy Mutants, LLC
  
• Ben Hammersley
  
• Joichi Ito
  
• Joel Johnson
  
• Kimberly A. Kralowec
  
• LawMeme
  
• Rebecca MacKinnon
  
• Joshua Micah Marshall
  
• The Media Bloggers Association
  
• Markos Moulitsas
  
• Reporters Without Borders
  
• Glenn Harlan Reynolds
  
• Peter Rojas
  
• Jay Rosen
  
• Scott Rosenberg
  
• Doc Searls
  
• Silicon Valley Watcher
  
• Kevin Sites
  
• Eugene Volokh
  

Hint: The above is the full list of persons and entities that have this particular thing in common.

Answer below.

All of us are the parties in an amicus brief (.pdf) written by Lauren Gelman and the Stanford Law School Center for Internet and Society in the Apple v. Does case. The issue is whether bloggers should be entitled to the same legal protections as professional print journalists under California law and the First Amendment.

I’ve signed a number of amicus briefs as a lawyer, but this is my first time as a client.

Feels weird.

[Granfalloon defined for the Vonnegut-impaired.]

Blame the Parents

Several of the liberal blogs I read are in a lather about a recent poll showing that high school students don’t really grasp the import of the First Amendment. In this, they are following the lead of the Knight Foundation, which conducted the survey as a part of $1 million research project, and issued the results under the scare headline Survey Finds First Amendment Is Being Left Behind in U.S. High Schools.

And, yes, the statistics are not so good.

• Nearly three-fourths of high school students either do not know how they feel about the First Amendment or admit they take it for granted.
• Seventy-five percent erroneously think flag burning is illegal.
• Half believe the government can censor the Internet.
• More than a third think the First Amendment goes too far in the rights it guarantees.

Both the foundation and the blogs I read conclude that this indicts high school civics education. And since I think high school civics classes tend to be awful, I can see why this is easy to believe.

Trouble is, these views of the First Amendment are not so different from what their parents say when surveyed. So it’s just as likely that the kids get this stuff at home.

Consider this analysis of the First Amendment Center’s eighth annual survey of adults’ views of the First Amendment,

One theme persists over the eight years that the First Amendment Center has conducted the State of the First Amendment survey: In the minds of many Americans, there is a troubling disconnect between principle and practice when it comes to First Amendment rights and values.

Americans in significant numbers appear willing to regulate the speech of those they don’t like, don’t agree with or find offensive. Many would too casually breach the wall between church and state. There is, in these surveys, solid evidence of confusion about, if not outright hostility toward, core First Amendment rights and values.

If more than a third of teen respondents think the government should censor more, they are not that different from their parents, as the First Amendment survey reports that four in ten adults “believe the press has too much freedom.”

It’s old news that many Americans don’t have a knee-jerk reaction in favor of free speech. That is why the First Amendment is so important. Not only does it protect me against the censors, but it serves an educational and indeed an exaltative role. Fewer people tend to support “weakening the First Amendment” than agree people should not have the right to speak freely. And so it has been for a long time.

A Real Good Start

There’s an old, old joke that goes,

Q: what do you call it when a ship with 800 lawyers aboard sinks?

A: A good start.

Here’s why people tell jokes like that:

CNN.com - Pair arrested for telling lawyer jokes - Jan 12, 2005

Did you hear the one about the two guys arrested for telling lawyer jokes?

It happened this week to the founders of a group called Americans for Legal Reform, who were waiting in line to get into a Long Island courthouse.

“How do you tell when a lawyer is lying?” Harvey Kash reportedly asked Carl Lanzisera.

“His lips are moving,” they said in unison.

While some waiting to get into the courthouse giggled, a lawyer farther up the line Monday was not laughing.

He told them to pipe down, and when they did not, the lawyer reported the pair to court personnel, who charged them with disorderly conduct, a misdemeanor.

“They just can’t take it,” Kash said of lawyers in general. “This violates our First Amendment rights.”

Reading between the lines of the rest of the story, it sounds as if they might indeed have been somewhat overloud and disorderly for a courthouse. But even so…

The EU Needs a First Amendment

If this Daily Telegraph story is to be believed, and I think from other reading that it’s basically correct as far as it goes, then the EU has a serious press freedom problem. But I admit I’m not as familiar with the relevant EU and ECHR case law as I’d like.

In EU judges end human rights law for press, Ambrose Evans-Pritchard writes that,

The European Court has quietly brushed aside 50 years of international case law in a landmark judgment on press freedom, ruling that Brussels does not have to comply with European human rights codes.

In a judgment with profound implications for civil liberties, Euro-judges backed efforts by the European Commission to obtain the computers, address books, telephone records and 1,000 pages of notes seized by Belgian police - on EU instructions - from Hans-Martin Tillack, the former Brussels correspondent of Germany’s Stern magazine.

It is a test case of whether the European Court will adhere to the democratic freedoms and liberal principles upheld for the last half-century by Europe’s top rights watchdog, the non-EU Court of Human Rights in Strasbourg, or whether it will pursue a more authoritarian line as it grows in power.

Mr Tillack had written a series of hard-hitting exposes of EU fraud and skulduggery, relying on inside sources. By obtaining his archive of investigative files amassed over five years, the commission can identify key sources and “burn” a generation of EU whistleblowers.

He was arrested by the Belgian police in March and held incommunicado for 10 hours for allegedly bribing an official to obtain internal EU documents.

The action was requested “urgently” by the EU’s anti-fraud office, which claimed Mr Tillack was about leave for America. In fact, he was moving back to Hamburg.

Leaked anti-fraud office documents have since shown that the allegation was concocted over dinner between two commission spokesmen.

…

Mr Tillack filed a lawsuit at the European Court with the backing of the International Federation of Journalists to block commission access to his records.

The federation pleaded that the EU’s attempt to identify a journalist’s sources in that fashion was a “flagrant violation” of press protection established over decades in European Convention law.

If the commission is allowed to sift through his records, it would render investigative journalism “virtually impossible” in Brussels.

Mr Tillack’s lawyers cited extensive case law, including the case of “Goodwin v UK” in 1996, ruling that the protection of sources was the cornerstone of a free press and “genuine democracy”.

The human rights court ruled against Luxembourg last year that identifying a source of leaks did not constitute a “pressing social need” that could justify a breach of Article 10 on press freedom.

But the EU’s Court of First Instance ruled against Mr Tillack last week on the grounds that the case was a strictly Belgian matter.

Euro-judges accepted commission claims that it played no role in the arrest of Mr Tillack, even though leaked anti-fraud office documents show it orchestrated the raid from the beginning.

I think I can understand why an EU court would be reluctant to issue what appears to amount to an injunction against an ongoing Belgian criminal proceeding, even if the applicant claims that the Belgian authorities are acting as a laundry for corrupt EU officials. From this distance, though, it doesn’t really matter to me whether the fundamental flaw is in Belgian law, or in the EU’s unwillingness to impose on Belgian authorities. What seems strange to me is that this sort of massive shopping expedition in a journalist’s notes is allowed.

Note that I see this as distinct from compelling a journalist to testify about a crime the journalist has personally witnessed or participated in. In those cases, I think a journalist has the same obligation as any other citizen. That’s an easy case. (Conversely, I don’t think journalists should have to testify about hearsay relating to crimes, including post-hoc confessions by people who claim they did a crime.)

The hardest case, in my view, is in a particularized leak investigation relating to a specific classified document. If the leak was of a classified document, then the journalist may be the only source of information as to the identity of the person who provided the information in violation of law. At that point we have the clash between whistleblowing and rule of law. To date, the courts in the US at least have come down for the latter (cf. the Plame case), and I’m not prepared to say that’s wrong.

But there is a big difference between a particularized effort to compel testimony as the identity of a source when all other ways to get the information have failed, and the Hans-Martin Tillack matter, which appears to be a very broad attempt to seize all of a journalist’s notes—and one based on trumped-up claims to begin with.

US Sued for Blocking International Editing

Almost a year ago I blogged the US Treasury export control rules being used to prevent publishers from editing certain foreign manuscripts.

I’m happy to report that a group of publishers are (finally) suing to end curbs on editing. They deserve to win.

More on Free Speech Zones (not)

A note from Joel Sipress, whom I mentioned in Land of the Free (except near Bush).

Dear Professor Froomkin,

I came across your blog while doing a google search looking for coverage of the Duluth, Minnesota anti-Bush protests. I saw the entry/discussion of the fact that my mug shot was circulated by Secret Service at the Bush rally in Duluth. Thought you might be interested in hearing some more details. The most likely explanation of how I ended up on the Secret Service list is that I was identified in our local newspaper a few days before Bush’s visit as the organizer of an anti-Bush protest (as was Joel Kilgour, another one of the three people whose mug shots were circulated). The protest that I helped organize was held about six blocks from Bush’s event with the knowledge and approval of our local police force (who, by the way, went to considerable lengths to make sure that local people could gather and speak freely during Bush’s visit). Apparently, organizing a legal event at which citizens gather and speak their minds is now enough to get one labelled a security risk. Pretty serious stuff, at least as I see it. (Our rally, by the way, drew about 1500 people, with several hundred more doing sidewalk protests around town.) Feel free to use this information as you see fit.

Best Wishes,

Joel Sipress
Duluth, Minnesota

Incidentally, this is part of a trend. Seems that even wearing the wrong t-shirt can cause the SS to bar you from a rally to which you have a valid ticket (spotted via Dan). Or even get you taken away in handcuffs. Oh, and then you lose your federal government job (FEMA) too.

Note: the Secret Service’s official line is that they’d “do the same thing at a Kerry rally.” Has this in fact ever happened at a Kerry rally?

Land of the Free (Except Near Bush)

Via my brother’s White House Briefing comes a dead-pan rendition of this very very disturbing story:

John Myers writes in the local paper, the Duluth News Tribune: “The president entered the DECC Arena just before 6 p.m., nearly 10 minutes ahead of schedule, to darkened lights, blaring music and a giant W-shaped spotlight that moved across the crowd.

“As the president entered the Arena, screams erupted among his raucous supporters who had waited in line for tickets, waited in line to clear security, then waited still longer for the president’s arrival.”

Chris Hamilton of the Duluth paper adds: “It was a tightly controlled event staffed by dozens of volunteers with laminated badges. The Secret Service set up metal detectors and had mug shots of local anti-Bush activists Joel Kilgour and Joel Sipress.”

But it’s Michael Larson they should have been watching for.

As Myers reports: “Bush’s speech was interrupted for a few seconds when a protester, Michael Larson of Duluth, stood up in an aisle and yelled, ‘Shame on you.’ Bush stopped speaking only briefly and didn’t acknowledge Larson, who was wearing a white T-shirt with fake blood painted on it. Larson was immediately ushered out by police and Secret Service. He was ticketed and released by police.”

Wait a minute.

The Secret Service blocks dissidents from attending a public meeting based on the content of their speech?!? That’s vile.

Heckling gets you forcibly ejected by cops? And ticketed? (This only rates one “?” as I can imagine how this might be ‘creating a public nuisance’ or something, but given that it’s unlikley that an enraptured pro-Bush interruption would cause an arrest, I still think there’s an issue here.)

What’s taking so long for that ACLU lawsuit about so-called free speech zones anyway? The complaint in ACORN v. Philadelphia was filed last September. Is nothing going to happen before the election?

The Man Who Didn't Keep the Secrets Wants them Back

Jurist reports

Government watchdog group Project on Government Oversight (POG0) filed suit against Attorney General John Ashcroft Wednesday over the reclassification of documents relating to a whistleblower’s claims of security lapses in the FBI’s translator program. POGO argues that reclassifying documents that were previously in the public domain is illegal and unconstitutional. During testimony before the Senate Judiciary Committee earlier this month, Ashcroft took responsibility for the decision to classify the documents, citing US national interests. AP has the full story. POGO provides background on the retroactive classification.

I had thought the question of classifying public domain information was settled long ago in the ‘classified at birth’ debate, when the government climbed down from its assertion that some scientific discoveries with military implications (e.g. strong cryptography or strong decryption methods) could be classified even if derived entirely from non-classified sources by persons unaffiliated with the government.

The seemingly technical question of the government’s ability to classify public information is in fact very important. If Ashcroft were to get his way, the government would have the ability to shut down debate on a set of public policy issues by waving a classified stamp. That would take us another (not-so-little?) step in the direction of authoritarian government.