The "Justice" Department needs to go.
Mort Zuckerman
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Subject: The "Justice" Department needs to go.
Date: Nov 11, 2009 4:54 AM
I am sorry, but I see no purpose in
maintaining this notion that such tardiful
suck-ups to the Corporate State should even
any further have a mailing address. They need
to go.
If we can find some smart people - some people
with actual male gonads - then yes, they can be
resurrected, but right now they're full of lawyers.
Kathleen M. Dickson
http://www.actionlyme.org
http://www.relapsingfever.org
==============================
http://www.eff.org/wp/anatomy-bogus-subpoena-indymedia
How the Government Secretly Demanded the IP Address of Every Visitor
to Political News Site Indymedia.us
Table Of Contents
1. Introduction
2. The Subpoena to Indymedia
3. Flaw #1: Demanding "all IP traffic"
4. Flaw #2: Bogus Gag Order
5. EFF Responds; Government Backs Down
6. Closing Lessons
7. Legal Disclaimer
1. Introduction: Lifting the Fog of Secrecy Surrounding Law
Enforcement Surveillance
Secrecy surrounds law enforcement's communications surveillance
practices like a dense fog. Particularly shrouded in secrecy are
government demands issued under 18 U.S.C. § 2703 of the Stored
Communications Act or "SCA" that seek subscriber information or other
user records from communications service providers. When the
government wants such data from a phone company or online service
provider, it can obtain a court order under the SCA demanding the
information from the provider, along with a gag order preventing the
provider from disclosing the existence of the government's demand.
More often, companies are simply served with subpoenas issued directly
by prosecutors without any court involvement; these demands, too, are
rarely made public. (For more background on how the SCA works, see
this section of EFF's Surveillance Self-Defense manual.)
We at EFF, like the public at large, are often left in the dark about
what the government's practices in this area look like. However,
sometimes — just sometimes — the fog will clear and we'll get a
worrisome picture of what the government gets up to behind closed
doors. Sometimes this happens when an independent-minded judge
publishes an opinion revealing the government's practices, like the
judge that first revealed that the government was tracking cell phones
without warrants. Other times, someone served with an SCA demand such
as a National Security Letter comes to us for legal assistance.
Recently, one such recipient of an SCA demand did come to us, and
we're glad she did. The story of that subpoena — to the administrator
of www.indymedia.us, an independent activist news site aggregating
stories from Indymedia web sites across the country — provides yet
another example of how government abuses breed in secrecy. Hopefully
this analysis will be helpful to other online service providers who
receive such bogus requests masquerading as valid legal process.
2. The Subpoena to Indymedia
Indymedia Logo
On January 30th, 2009, Kristina Clair of Philadelphia, PA — one of the
system administrators of the server that hosts the indymedia.us site —
received in the mail a grand jury subpoena from the Southern District
of Indiana federal court. The FBI had sent an email to Ms. Clair a
couple of weeks earlier asking where a subpoena directed at the
indymedia.us site should be sent. So, we at EFF were ready and waiting
to evaluate the subpoena as soon as it arrived. Yet even we were
surprised at what we saw. A PDF of the entire subpoena is available
here.
Indymedia subpoena
3. The Indymedia Subpoena's Flaws: Demanding "all IP traffic to and
from www.indymedia.us"
Grand jury subpoenas are very easy for the government to get — they
are issued directly by prosecutors without any direct court oversight.
Therefore, the SCA limits what those subpoenas can obtain, in contrast
to a search warrant or other court order. Under the SCA's 18 U.S.C. §
2703(c)(2), grand jury subpoenas can only be used to get basic
subscriber-identifying information about a target — e.g., a particular
user's name, IP address, physical address or payment details — and
certain types of telephone logs; any other records require a court
order or a search warrant. This sample subpoena from the Justice
Department's surveillance manual shows what the government typically
asks for, tracking the statute's language.
However, with the Indymedia subpoena, the government departed from the
text of the law and the Justice Department's own sample subpoena by
inserting this demand: "Please provide the following information
pursuant to [18 U.S.C. § 2703(c)(2)]: All IP traffic to and from
www.indymedia.us" for a particular date, including "IP addresses,
times, and any other identifying information."
Subpoena excerpt
In other words, the government was asking for the IP address of every
one of indymedia.us's thousands of visitors on that date — the IP
address of every person who read any news story on the entire site.
Not only did this request threaten every indymedia.us visitor's First
Amendment right to read the news anonymously (particularly considering
that the government could easily obtain the name and address
associated with each IP address via subpoenas to the ISPs that control
those IP blocks), it plainly violated the SCA's restrictions on what
types of data the government could obtain using a subpoena. The
subpoena was also patently overbroad, a clear fishing expedition:
there's no way that the identity of every Indymedia reader of every
Indymedia story was relevant to the crime being investigated by the
grand jury in Indiana, whatever that crime may be.
4. The Indymedia Subpoena's Flaws: The Bogus Gag Order Demanding the
Recipient's Silence Without Any Legal Basis
The government added insult to injury by also inserting this language
on the first page of the subpoena: "You are not to disclose the
existence of this request unless authorized by the Assistant U.S.
Attorney. Any such disclosure would impede the investigation being
conducted and thereby interfere with the enforcement of the law."
Subpoena excerpt
The problem? The law doesn't require the recipient of a federal grand
jury subpoena to keep the subpoena secret (which is why, typically,
subpoenas often will "request" — but not require — a recipient's
silence). There are certainly secrecy requirements for participants in
the grand jury — such as the jurors and the prosecutors — but those
requirements do not extend to witnesses (or potential witnesses such
as a subpoena recipient). And although the SCA does provide the
government with the option of obtaining a court order under 18 U.S.C.
§ 2705(b) requiring silence when the recipient's disclosure would have
an adverse affect on an investigation, the government in this case did
not obtain any such gag order.
In sum, without any legal authority to back up their purported gag
demand, the government ordered Ms. Clair not to reveal the existence
of the subpoena, a subpoena that as already described was patently
overbroad and invalid under the SCA. This is exactly the kind of
unjustified demand of silence that creates a fog around the
government's often-overreaching surveillance activities. How many
other subpoena recipients have remained silent over the years in
response to such bogus demands, and how many of them violated their
users' privacy by handing over data that the government wasn't
entitled to? We simply do not know, and because of a lack of
meaningful reporting about the government's use of the SCA, we cannot
know.
We were determined that our client would not be one of the silenced,
and that this illegal subpoena would eventually see the light of day.
5. EFF Responds to the Indymedia Subpoena; Government Backs Down
EFF decided to draft a letter to the Assistant US Attorney who issued
the subpoena, laying out our concerns and refusing to comply with the
subpoena's demands. This task was made all the easier by the fact that
Indymedia.us, following EFF's suggestions in its "Best Practices for
Online Service Providers", does not keep historic logs reflecting the
IP addresses of its visitors. In other words, Indymedia didn't have
what that the government was looking for.
EFF's first letter
Therefore, although we described all our various objections to the
subpoena in EFF's first letter to the government, which was sent to
Assistant US Attorney Doris L. Pryor on February 13, 2009, the main
issue discussed in the letter was Indymedia's right to publicly
discuss the subpoena.
In that letter, we explained that there was no legal basis for the
subpoena's gag order, noted our intent to publish and critique the
subpoena, and invited the government to seek a court order under the
SCA's 18 U.S.C. § 2705(b) if it wished to maintain the subpoena's
secrecy. We at EFF have long hoped to litigate whether such SCA gag
orders violate the First Amendment, and this looked like it might be
our opportunity.
EFF's second letterHowever, the government declined our invitation.
EFF's second letter to the government, addressed to a second Assistant
US Attorney working on the case, Steven D. DeBrota, and cc'ing the
first AUSA, Ms. Pryor, recounts what happened next:
On February 24, I received a voicemail from Ms. Pryor in response
to my letter. In that message, Ms. Pryor said that I was correct that
the subpoena did not compel Ms. Clair's silence, but that she would be
seeking a court order, as she would confirm in a letter later that
day.
This was a stunning admission: that the demand for silence in the
subpoena had no legal basis, and that to legally compel silence the
government would have to go to court for a gag order. The letter
continues:
No such letter [confirming that the government would seek a gag
order] was forthcoming; instead, I received on February 25 a faxed
letter from Ms. Pryor simply stating that the subpoena had been
withdrawn.
Shortly after receiving that fax, on February 25, I and my
colleague Lee Tien were able to reach you [i.e., the second AUSA, Mr.
DeBrota] by phone to discuss the newly withdrawn subpoena.
You indicated [during our phone conversation] that your office had
reconsidered its position and, for unspecified reasons, was choosing
not to seek a court order compelling Ms. Clair's silence. You further
stated that your "legal posture" was that given the withdrawal of the
subpoena, it was a "nullity" and that Ms. Clair "can say what she
wants" — that there was "no legal disability" against Ms. Clair
publicly discussing the subpoena. We expressed our pleasure at this
and informed you of Ms. Clair's desire for EFF to publish the subpoena
in conjunction with a legal critique of it, both to publicize an
instance of government overreaching and to assist future recipients of
similarly flawed subpoenas.
Notably, before this phone call, the second AUSA — Mr. DeBrota — had
left a flurry of voicemails with EFF on February 24th and 25th seeking
to speak with us. Presumably, he wanted to clarify to us as soon as
possible that the government would not be going to court to seek a gag
order, so that we would not go to court ourselves based on AUSA
Pryor's previous statement that it was going to go get a gag order.
That previous statement likely would have given us a basis to go to
court for an injunction to stop issuance of any gag order and, more
importantly, bring an unprecedented challenge to the gag provision's
constitutionality under the First Amendment. Obviously, that was a
fight — and more importantly, a precedent — that the government wanted
to avoid.
However, the phone conversation didn't end there. Instead, AUSA
DeBrota still insisted that disclosure of the subpoena would harm the
investigation, though he could not provide any specifics. These vague
statements raised the spectre of our client being investigated or
prosecuted for obstruction of justice for exercising her First
Amendment right to publish and critique the subpoena. That is why, in
an abundance of caution, we wrote the second letter. As that letter
continues (emphases added):
Despite the choice not to seek a court order, you made clear your
belief that disclosure of the subpoena would have an adverse impact on
the grand jury's investigation, that it "may endanger someone's
health" and would have a "human cost," and that Ms. Clair should use
"conscience as her guide." When we pressed for you to confirm that Ms.
Clair would face no legal consequences for her disclosure, e.g.,
prosecution by your office for obstruction of justice, you would not
give it, instead noting the possibility of legal consequences if, for
example, "her cousin is involved" in the conduct being investigated.
To clarify the issue and memorialize our conversation, I emailed you
and Ms. Pryor that same day confirming our understanding that there
was no legal bar to Ms. Clair disclosing the subpoena. I received no
response.
Your contradictory positions — your stated belief that disclosure
of the subpoena will harm the investigation, contrasted with your
failure to seek a court order based on that belief — are unacceptable.
Ms. Clair has not been informed of the nature of your investigation,
the identity of its targets, or the nature of the crimes being
investigated. Ms. Clair has no intent, corrupt or otherwise, to
influence, obstruct, or impede the due administration of justice in
this matter. She does, however, wish to exercise her First Amendment
right to speak about the subpoena without restriction, and to
authorize EFF to publish and critique the subpoena. Yet that speech
has been chilled by the vague threat of obstruction of justice
inherent in your imprecise and unsupported statements that her
disclosure would somehow harm your investigation.
Put simply, you cannot have it both ways. If you believe that Ms.
Clair's disclosure of the subpoena will harm your investigation, apply
for a court order under 18 U.S.C. § 2705(b) to prohibit that
disclosure. If you do not inform me within seven days that you have
applied for such an order, Ms. Clair will assume that her disclosure
of the subpoena will not influence, obstruct, or impede the due
administration of justice or otherwise lead to any adverse result in
your investigation, and that you have no objection to such disclosure.
The government ultimately never sought a gag order, and never
responded to the letter. Therefore, and with the permission of our
client Ms. Clair, EFF is now publishing this report about the bogus
subpoena so that others might learn from the experience.
So, what lessons have we learned?
6. Closing Lessons
The experience of Ms. Clair in dealing with the subpoena for
Indymedia's logs brings with it several lessons — not only for online
service providers but also for the average Internet user, Americans
who care about civil liberties, and Congress.
The first lesson is for the average Internet user: yes, your IP
address can be and typically is logged by the online services that you
use, and yes, the government can obtain those logs, sometimes with
only a subpoena issued directly by a prosecutor. If you want to
anonymize your IP address to prevent the violation of your online
privacy, you can use anonymizing software such as "Tor". You can find
out more about Tor and how it works in this section of EFF's
Surveillance Self-Defense Manual and at www.torproject.org.
For online service providers, the second lesson is straightforward,
and one that EFF has highlighted both in its "Best Practices for
Online Service Providers" and its Surveillance Self-Defense manual: if
you don't have it, they can't get it. When providers avoid keeping
unnecessary Internet logs, responding to subpoenas and other legal
demands for such information becomes very simple: "Sorry, but we don't
keep those logs and so we don't have any information that's responsive
to this subpoena."
The third lesson, again for providers, is that they can and should
seek legal advice when they receive legal demands for information.
Without a lawyer's advice, providers may hand over data that the
government isn't legally entitled to or that the provider is legally
forbidden from disclosing, and may be cowed into silence by bogus gag
demands.
For example, assume that the subpoena in this case had been served on
a service that did keep logs of site visitors' IP addresses. Without
advice from counsel like EFF, the recipient would not have known that
the request, purportedly based on the SCA, actually violated the SCA,
and that providing the information to the government could have
created liability for the service provider.
Nor would the provider have understood that the subpoena's purported
requirement of secrecy was actually an unenforceable request, or that
if there was a gag order it could be challenged in court on First
Amendment grounds. Absent advice from a lawyer, the provider's
unquestioning silence would unnecessarily add to the growing fog of
secrecy that surrounds the government's practices in this area.
This leads to our fourth and final lesson, for members of Congress and
their constituents: the level of secrecy surrounding how the
government uses its surveillance authority under the Stored
Communications Act encourages abuses. Sunlight is the best
disinfectant, and the best protection against such abuses is more
clarity and transparency when it comes to how the SCA is used.
Americans who care about civil liberties should press Congress to
update the SCA to further clarify what it does and does not authorize,
and to require detailed public reporting about how the statute is
used, just like the federal wiretap statute requires annual reports on
law enforcement's wiretapping activities. Without such reform, we may
never know how often the government issues unlawful demands like the
one described here, or how often providers secretly comply with those
demands. The government must be held accountable for its uses — and
abuses — of its surveillance authority, and with your and Congress'
help, it can be held to account.
Until that day, EFF continues to stand ready to provide assistance the
next time the government knocks on someone's door with an unlawful,
invalid, overbroad, free speech-threatening, privacy-invasive demand
for your sensitive Internet data.
Legal Disclaimer
This report is for informational purposes only and does not constitute
legal advice. if you have any specific legal problems, issues, or
questions, please do not act on this legal information alone. Seek a
complete review of your situation with a lawyer licensed to practice
in your jurisdiction, as different factual situations and different
legal jurisdictions may lead to different results.
"[Real] scientists are *fiercely* independent. That's the good
news."-- NIH's Top Fool, Anthony Fauci