TLJ News from February 26-28, 2014

UK's GCHQ Engaged in Massive Interception of Yahoo Video Chats

2/27. The Guardian published a story by Spencer Ackerman and James Ball titled "Optic Nerve: millions of Yahoo webcam images intercepted by GCHQ".

It states that "Britain's surveillance agency GCHQ, with aid from the US National Security Agency, intercepted and stored the webcam images of millions of internet users not suspected of wrongdoing".

The article elaborates that "Optic Nerve, the documents provided by NSA whistleblower Edward Snowden show, began as a prototype in 2008 and was still active in 2012, according to an internal GCHQ wiki page accessed that year. The system, eerily reminiscent of the telescreens evoked in George Orwell's 1984, was used for experiments in automated facial recognition, to monitor GCHQ's existing targets, and to discover new targets of interest. Such searches could be used to try to find terror suspects or criminals making use of multiple, anonymous user IDs."

Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "This secret capturing and storage of images taken from millions of video chats indicates government privacy violations have reached an alarming new level of intrusiveness. The size and audacity of this online spying is outrageous and shows how government surveillance officials will go as far as they can to gather data with minimal regard for privacy expectations, ethics or laws."

Black added that "These revelations also add to the evidence that citizens and policymakers around the world need much more information on surveillance programs as those devising and implementing surveillance programs cannot be trusted to make reforms without oversight."

People and Appointments

Eric Holder2/27. The Department of Justice (DOJ) announced in a release that Attorney General Eric Holder (at right) was admitted to hospital "after experiencing lightheadedness and shortness of breath" and "an elevated heart rate". He left the hospital after a few hours.

2/27. Rep. Ed Pastor (D-AZ), a senior member of the House Appropriations Committee (HAC), announced in a release that he will not run for re-election.

Sen. McCaskill Introduces Bill to Regulate Patent Infringement Demand Letters

2/26. Sen. Claire McCaskill (D-MO) and Sen. John Rockefeller (D-WV) introduced S 2049 [LOC | WW | TLJ], the "Transparency in Assertion of Patents Act".

This bill would direct the Federal Trade Commission (FTC) to write and enforce rules regarding unfair and deceptive practices in the sending of demand letters alleging patent infringement, and setting pleading like requirements for these letters. The bill would not preempt any state laws. It would give the states concurrent enforcement authority. It would create no private right of action.

The bill was referred to the Senate Commerce Committee (SCC), which promptly scheduled a mark up session for Wednesday, March 5, 2014. One consequence of such a hurried mark up is that opponents are left without sufficient time to mount a lobbying campaign against the bill.

Groups and Members of Congress who advocate the enactment of legislation to address abusive practices by "patent trolls" often cite the sending of abusive demand letters that allege patent infringement as one of the worst activities of these "patent trolls". They state that these letter are often sent in bulk, are vaguely worded, and/or are false or misleading.

HR 3309 [LOC | WW], the "Innovation Act", the patent bill passed by the House in December 5, 2013, does not address pre-litigation demand letter practices. Rather, it focuses on litigation procedure, including pleading requirements, limitations upon discovery, and fee shifting.

See, full story.

DOJ Issues Policy Statement Regarding Reporter Subpoenas and Communications Records Seizures

2/27. The Department of Justice (DOJ) published a notice in the Federal Register (FR) that announces, characterizes, recites, and sets the effective date for, its rules changes pertaining to "its practices and policies regarding the use of subpoenas, court orders, and search warrants to obtain information from, or records of, members of the news media".

Summary. These new rules state that the DOJ's "policy is intended to provide protection to members of the news media from certain law enforcement tools, whether criminal or civil, that might unreasonably impair ordinary newsgathering activities".

While the just released text is characterized as "rules", it is merely "statement of principle" and "statements of policy". It creates no private rights, and imposes no substantive limitations upon DOJ action.

The text states that "This policy is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person."

The DOJ has a history of abuse of subpoenas and phone records surveillance directed at news reporters. Members of Congress have long sought to enact legislation that would provide some protections for news reporting. However, the DOJ and both the Bush and Obama administrations have opposed such efforts. These rules changes provide the DOJ with the argument that legislation is unnecessary because it is addressing its improper conduct internally.

The DOJ's just released document applies only to the DOJ. However, other government agencies have also abused subpoena and other powers. Pending and past legislative bills would reach all federal government agencies.

Agencies other than the DOJ, such as the Securities and Exchange Commission (SEC), have improperly compelled disclosures from new reporters. See, for example, February 27, 2006, statement by former SEC Chairman Chris Cox, April 12, 2006 SEC policy statement, May 1, 2006, speech by Cox, and story titled "SEC's Cox Discusses Regulation and Information" in TLJ Daily E-Mail Alert No. 1,389, June 12, 2006.

Background. The DOJ adopted these rules against the backdrop of its long and continuing record of abusive use of subpoenas and other processes directed at reporters, and efforts by Members of Congress to enact remedial legislation.

The DOJ's own Inspector General has found violation of law in the surveillance of reporters. (See, story titled "Another DOJ Inspector General Report Finds FBI Misconduct in Obtaining Phone Records" in TLJ Daily E-Mail Alert No. 2,037, January 20, 2010.)

During the Obama and Bush administrations, the DOJ, and some of its components, such as the Federal Bureau of Investigation (FBI), have interfered improperly with the legitimate and important activities of news journalists that are protected and promoted by the First Amendment.

In particular, the DOJ has often abused its subpoena powers to force journalists to disclose confidential sources. The known consequence of such action is the intimidation of potential government whistleblowers, and the consequent degradation of the quality of news reporting.

The ultimate target of subpoenas directed at reporters is often government whistleblowers who disclose government corruption, waste, and fraud. In addition, abusive subpoenas also intimidate officials who would disclose information to which the public would be entitled under the Freedom of Information Act, Open Meetings Act, and Administrative Procedure Act, were the relevant agencies to comply with those statutes.

Also, in some cases, news reporters are more successful at uncovering criminal conduct by regulated entities and persons than the investigators at the relevant regulatory agencies, who then compel reporters to turn over their records and the identity of their sources. This practice undermines reporters' ability to effectively investigate and report thereafter.

These rules changes will have little, if any, impact upon DOJ activities and operations. Rather, the release of these rules changes are part of an ongoing exercise in hypocrisy, and the ongoing effort to undermine legislative reform.

Legislative History. Former Rep. Mike Pence (R-IN) and former Rep. Rick Boucher (D-VA) worked for years, and especially in the 110th and 111th Congresses, to enact legislation that is known as both "media shield" and "free flow of information". Their bills would have provided some protection for news reporters from abusive subpoenas from federal government agencies, and particularly, the DOJ.

In the 111th Congress, the House passed HR 985 [LOC | WW], the "Free Flow of Information Act", on March 31, 2009. See, story titled "House Judiciary Committee Approves Media Shield and Communications Services Provider Protection Bill" in TLJ Daily E-Mail Alert No. 1,919, March 30, 2009. HR 985 is substantially identical to HR 2102 [LOC | WW], the version of the bill in the 110th Congress. See, story titled "House Approves Boucher-Pence Media Shield Bill" in TLJ Daily E-Mail Alert No. 1,656, October 17, 2007.

These bills would have imposed modest limits upon the ability of federal entities to compel journalists to provide testimony or documents, or disclose sources, related to their work. These bills would also have limited government access to records of carriers, ISPs and other service providers.

The Senate did not pass a bill, in part because of opposition from the DOJ and Bush and Obama administrations. See, story titled "Bush Administration Opposes Pence/Boucher Free Flow of Information Act" in TLJ Daily E-Mail Alert No. 1,757, April 30, 2008.

Reps. Pence and Boucher failed. Nevertheless, reporters' complaints have continued. See, for example, story titled "Associated Press Alleges Unjustified FBI Seizure of Reporters' Phone Records" in TLJ Daily E-Mail Alert No. 2,561, May 14, 2013. And, Members of Congress continue to introduce bills.

There are bills pending in the current Congress, the 113th. Rep. Ted Poe (R-TX) introduced HR 1962 [LOC | WW], the "Free Flow of Information Act of 2013" on May 14, 2013. It was referred to the House Judiciary Committee (HJC), which has taken no action.

Sen. Charles Schumer (D-NY) introduced S 987 [LOC | WW], the "Free Flow of Information Act of 2013" on May 16, 2013. The Senate Judiciary Committee (SJC) amended and approved this bill on September 12, 2013. The full Senate has taken no action.

Summary of Rules Changes. These rules create no private rights. Also, they are merely "statements of policy".

Perhaps the most significant provisions in these rules are those that state that when DOJ personnel want to subpoena or surveil news reporters to learn about their news reporting activities, they must obtain approval from senior DOJ officials.

Next, while these rules confer no rights upon news reporters or others, these rules expressly condone subpoenas, and other compulsory process, directed at news reporters in connection with their news reporting.

For example, the DOJ "may apply for a warrant to obtain work product materials or other documentary materials of a member of the news media", and the DOJ may apply for a "warrant to search the premises, property, or communications records of a member of the news media".

Also, the DOJ may compel production of "communications records" of "a third-party communication service provider".

The rules state that "communications records" include "the contents of electronic communications as well as source and destination information associated with communications, such as email transaction logs and local and long distance telephone connection records, stored or transmitted by a third-party communication service provider with which the member of the news media has a contractual relationship".

The rules also provide that the DOJ may obtain "a subpoena, court order, or warrant to obtain communications records or business records of a member of the news media" without giving notice to the "member of the news media".

This document takes effect on February 27, 2014. See, FR, Vol. 79, No. 39, February 27, 2014, at Pages 10989-10994.

People and Appointments

2/27. President Obama nominated Robert Holleyman to be a Deputy U.S. Trade Representative. If confirmed by the Senate, he will fill the position previously held by Demetrios Marantis. Holleyman is a former long time head of the Business Software Alliance (BSA). See, White House news office release and release.

People and Appointments

2/26. President Obama appointed Joe Echevarria to be a member of the President's Export Council. See, White House news office release. He is the CEO of Deloitte LLP, and a member of the U.S. Board of Directors of Deloitte Touche Tohmatsu Limited.