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NSA links Wannacry worm to North Korea – BBC News

Posted on June 16, 2017 by Danzig

NSA links Wannacry worm to North Korea
BBC News
The Wannacry worm that infected organisations in 150 countries in May has been blamed on North Korea by the US's National Security Agency (NSA). The Washington Post said there was "moderate confidence" in the report's findings, while the spy agency ...
NSA Reportedly Confident North Korea Was Behind WannaCryDark Reading
The NSA reportedly believes North Korea was responsible for WannaCry ransomware attacksThe Verge
NSA links 'WannaCry' cyberattack to North KoreaNew Haven Register
Healthcare IT News -Mic -Tom's Hardware -Washington Post
all 26 news articles »

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NSA links Wannacry worm to North Korea - BBC News

Senators seek answers on alleged NSA leaker’s security clearance … – The Hill

Posted on June 16, 2017 by Danzig

The leaders of a key Senate panel are pressing the federal government for information about the security clearance of a government contractor recently accused of passing classified material to a news outlet.

Reality Leigh Winner was arrested by the FBI in early June and charged in federal court with violating a section of the Espionage Act. Her arrest has been linked to The Intercepts publication of a purported classified National Security Agency document detailing Russian hacking efforts aimed at U.S. election and voting infrastructure.

Winner, an Air Force veteran, had worked as a contractor at Pluribus International Corporation, was assigned to a government facility in Georgia and held a top-secret clearance, according to the criminal complaint.

The leaking of classified information jeopardizes our national security, McCaskill said in a statement. We need to determine if Ms. Winners security clearance process was handled correctly or if we missed any red flags.

Together, Johnson and McCaskill lead theSenate Homeland Security and Governmental Affairs Committee.

The letter was sent to Kathleen McGettigan, acting director of OPM. The lawmakers also asked the agency to explain the process by which a member of the military has a security clearance reactivated or transferred in order to be employed by the intelligence community, given Winners previous service in the Air Force.

Additionally, the senators asked what OPM is doing to comply with with a provision included in an appropriations measure passed last year that mandated a review of the federal governments enhanced security clearance program.

Winner was arrested at her home in Georgia on June 3 and the Department of Justice announced the charges days later. Winner allegedly printed and improperly removed classified intelligence in early May and later sent it by mail to an online news outlet.

Winners arrest was the latest in a string of leak incidents, an issue that has attracted attention since ex-NSA contractor Edward Snowdens disclosures to news publications in 2013.

In February, former NSA contractor Harold Martin was indicted for stealing thousands of intelligence files, including classified documents from the NSA, CIA and U.S. Cyber Command.

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Senators seek answers on alleged NSA leaker's security clearance ... - The Hill

Overnight Cybersecurity: NSA links Wanna Cry ransomware to North Korea | Dem proposes center to counter Russian … – The Hill

Posted on June 16, 2017 by Danzig

Welcome to OVERNIGHT CYBERSECURITY, your daily rundown of the biggest news in the world of hacking and data privacy. We're here to connect the dots as leaders in government, policy and industry try to counter the rise in cyber threats. What lies ahead for Congress, the administration and the latest company under siege? Whether you're a consumer, a techie or a D.C. lifer, we're here to give you ...

THE BIG STORY:

--THE NSA BELIEVES WANNA CRY WAS NORTH KOREAN:

The National Security Agency (NSA) linked ransomware that negatively impacted more than 300,000 people in 150 countries to North Korea, according to The Washington Post. The NSA's assessment, which is not available to the public, states that "cyber actors" thought to be sponsored by North Korea's spy agency, the Reconnaissance General Bureau, were behind the WannaCry computer worm.

To read the rest of our piece,click here.

--...'MODERATE[LY]' CONFIDENT: According to theWashington Post report, the NSA reached that conclusion with "moderate" confidence.

--...SPEAKING OF KASPERSKY AND WANNA CRY: Rep. Clay Higgins (R-La.) told two House Science subcommittees they should take antivirus magnate Eugene Kaspersky up on his offer to testify before Congress during a joint hearing on Wanna Cry on Thursday. Kaspersky Lab continues to receive government contracts, despite lawmakers' suspicions that the Moscow-headquartered outfit may have ties to the Russian government. There is no public evidence linking the two, but the Department of Homeland Security has issued guidance to avoid the vendor. Kaspersky has also become a frequent topic of conversation at Senate Intelligence Committee meetings. Both Kaspersky and his company have pushed back against these claims. In May, Eugene Kaspersky said he would testify before Senate Intelligence. "The FBI, CIA and NSA advise this body that they do not trust Kaspersky," said Higgins, adding, "I strongly suggest we take him up on his offer." Eugene Kaspersky was educated at a KGB-sponsored university and served in Russian military intelligence. As is the case with American cybersecurity firms, many of the Russia-based employees come from the public sector.

--...A SIMILAR, MORE FRIENDLY OFFER FOR NORTH KOREAN PROGRAMMERS: Witnesses at the hearing noted that coding errors likely prevented millions of additional infections of the malware and that the prevailing theory was that North Korea had launched the attack. Higgins jokingly asked the panel what they thought might happen to the coders and issued an invitation to any programmers feeling heat from Pyongyang to come to America. "We'd love to have you before the Committee," he said. "We'll give you some real good food."

To read the rest of our piece,click here.

A RUSSIA INVESTIGATION UPDATE:

--PUTIN OFFERS COMEY POLITICAL ASYLUM:

Russian President Vladimir Putin on Thursday offered to give political asylum to former FBI Director James Comey, poking at tensions between Comey and President Trump. "If Comey will be under the threat of political persecution, we are ready to accept him here," Putin said at a press conference, according to Russian state media outlet TASS.

To read the rest of our piece,click here.

--WHO WILL INVESTIGATE OBSTRUCTION? With the announcement yesterday that the Senate Judiciary would investigate political pressures at the FBI, the Senate Intelligence Committeewill notbe focusing on the issue and will turn over evidence to the special prosecutor. Over in the House Intelligence committee, Ranking Member Adam SchiffAdam SchiffOvernight Cybersecurity: NSA links Wanna Cry ransomware to North Korea | Dem proposes center to counter Russian hacks | Senators raise questions about leaker's security clearance Top House Dem: Obstruction should be part of Trump-Russia probe The Hill's 12:30 Report MORE (D-Calif.) said he wanted to keepthat focus alive.

--DEM PROPOSES RUSSIAN HACKING DEFENSE CENTER: Rep. Joseph Kennedy (D-Mass.) introduced legislation on Thursday to create a response center to combat Russian cyber attacks amid ongoing probes into Moscow's interference in last year's election. Dubbed the National Russian Threat Response Center, the new initiative would be responsible for examining information relevant to Russia's online aggression and seek to close gaps in intelligence collected about the Kremlin. "Russia's attack on our election was not guided by party affiliation but instead by a deep desire to weaken trust in our institutions and shake the very foundation of our democracy," Kennedy said in a statement.

To read the rest of our piece,click here.

--MEANWHILE, PRESIDENT TRUMP DID SOME TWEETING. "They made up a phony collusion with the Russians story, found zero proof, so now they go for obstruction of justice on the phony story. Nice"(6:55 a.m.)... "You are witnessing the single greatest WITCH HUNT in American political history - led by some very bad and conflicted people! #MAGA"(7:57 a.m.)... "Why is that Hillary Clintons family and Dems dealings with Russia are not looked at, but my non-dealings are?"(3:43 p.m.)... "Crooked H destroyed phones w/ hammer, 'bleached' emails, & had husband meet w/AG days before she was cleared- & they talk about obstruction?"(3:56 p.m.).

--...TRUMP ALLY WOULD HAVE ADVISED AGAINST IT: Rep. Chris Collins (R-N.Y.), one of President Trump's most ardent allies on Capitol Hill, on Thursday criticized the timing of the president's latest tweets attacking the investigation into Russian election meddling. "I think timing could have been better on that, and I can't speak for the president, obviously he does what he does," Collins said on CNN. "Clearly, he's frustrated by the investigation, and the investigation is going to run its course, probably for many, many, many months." "I'm not counseling the president, but I would have certainly not advised that that tweet go out today, because we're still very much reacting to yesterday's shooting," he added.

--...POLL: MAJORITY ASSUME MEDDLING: A majority of American adults in a new poll thinks President Trump has tried to interfere in the investigation into Russian meddling in the U.S. presidential race. An Associated Press/NORC Center for Public Affairs Research poll found about 60 percent of Americans think Trump attempted to obstruct or impede the investigation. But opinions are largely split among partisan lines, with only about 25 percent of Republicans saying they think Trump tried to meddle in the probe. The poll also finds that 68 percent of Americans are at least moderately concerned Trump or his campaign associates had inappropriate links to Russia. Just about 30 percent of Americans said they were not concerned. Only 22 percent of Americans support Trump's decision to fire former FBI Director James Comey, compared with the more than half of Americans who disapprove of the president's decision.

To read the rest of our piece,click here.

A LIGHTER CLICK:

TODAY IN QUESTIONABLE CORRELATIONS: Programmers who use spaces to format computer code make more moneythan those who use tabs.

A REPORT IN FOCUS:

MORE FROM THE WANNA CRY FRONT: ElevenPaths, a cybersecurity division of Telefonica, found a few new odds and ends inspecting the metadata from the files in Wanna Cry.

Telefonica is intimately familiar with Wanna Cry; the Spanish telecom was one of its largest victims.

The coding of Wanna Cry has already been torn apart by researchers, who by and large believe it was filled with coding mistakes. Those include the "killswitch" that hamstrung the ransomware, poor coding practices making it easy to recover many of the encrypted files without paying, having no method to tell who paid the ransom and struggling to infect Windows XP servers.

The choice of file types used in the attack may also have been mistakes. By using document types that allowed colorful typography, the files in Wanna Cry reveal that the default keyboard setting on the computer that typed the ransom note was Korean and that it used the EMEA version of Microsoft Word.

A package of compressed files in the .zip format reveals that the attackers updated the software until 2:22 a.m. on May 12. But the attack was first seen before 2:22 a.m. in a number of time zones. Assuming the time codes were unaltered and accurate, the only time zones with a chronologically correct 2:22 a.m. are in West Africa, Western Europe, Russia, Asia and Australia.

Other notes: Metadata shows that some software was registered in the name Messi, which may be a reference to the soccer player Lionel Messi.

ElevenPaths cautions that metadata can be changed and otherwise fabricated by programmers, making it shaky evidence. The metadata may have been altered to change the keyboard settings or time codes. It's possible all of this is a red herring.

ElevenPaths notes that the programmermight not even be a fan of Lionel Messi.

WHAT'S IN THE SPOTLIGHT:

REALITY WINNER'S SECURITY CLEARANCE: The leaders of a key Senate panel are pressing the federal government for information about the security clearance of a government contractor recently accused of passing classified material to a news outlet.

Reality Leigh Winner was arrested by the FBI in early June and charged in federal court with violating a section of the Espionage Act. Her arrest has been linked to The Intercept's publication of a purported classified National Security Agency document detailing Russian hacking efforts aimed at U.S. election and voting infrastructure.

On Thursday, Sens. Ron JohnsonRon JohnsonOvernight Cybersecurity: NSA links Wanna Cry ransomware to North Korea | Dem proposes center to counter Russian hacks | Senators raise questions about leaker's security clearance Senators seek answers on alleged NSA leakers security clearance Insurers confront big ObamaCare decision MORE (R-Wis.) and Claire McCaskillClaire McCaskillOvernight Cybersecurity: NSA links Wanna Cry ransomware to North Korea | Dem proposes center to counter Russian hacks | Senators raise questions about leaker's security clearance Court-martial possible in Marines nude photo sharing scandal Senators seek answers on alleged NSA leakers security clearance MORE (D-Mo.) wrote to the head of the Office of Personnel Management (OPM) seeking more information about which government agency conducted Winner's initial security clearance and when. They also asked the agency to disclose the last time Winner was reinvestigated as part of her active security clearance, in addition to other inquiries.

"The leaking of classified information jeopardizes our national security," McCaskill said in a statement. "We need to determine if Ms. Winner's security clearance process was handled correctly or if we missed any red flags."

To read the rest of our piece,click here.

The Paper Trail To Impeachment Grows As NSA Memo Shows Trump Investigation Interference – PoliticusUSA

Posted on June 16, 2017 by Danzig

While it is unknown if there are tapes, a new report of a memo from a former NSA official documents Trumps attempts to influence the NSA and interfere in the Russia investigation.

The Wall Street Journal (subscription required) reported, The special counsel also plans to interview Rick Ledgett, who recently retired as the deputy director of the NSA, the person added. While Mr. Ledgett was still in office, he wrote a memo documenting a phone call that Mr. Rogers had with Mr. Trump, according to people familiar with the matter. During the call, the president questioned the veracity of the intelligence communitys judgment that Russia had interfered with the election and tried to persuade Mr. Rogers to say there was no evidence of collusion between his campaign and Russian officials, they said.

There is a clear pattern emerging of Trump calling intelligence officials and interfering in the Russia investigation. If President Trump and his campaign did not collude with Russia, he and his administration should be welcoming the investigation to put any false accusations to rest. Trumps repeated attempts to undercut and discredit the investigation look like the acts of a man who has something to hide.

The case for obstruction of justice isnt Comey versus Trump. It is Trump versus Comeys testimony, Comey memos, intelligence community witnesses, and an NSA memo. That is just the information that is publicly known. It is likely that there is, even more, evidence that the public has yet to hear about. The special counsel has witness testimony and physical evidence to weigh when evaluating if Trump obstructed justice.

The President wants America to believe that the man who lied to them about everything from the crowd size at his inauguration to President Obama spying on him is to be believed over a mountain of evidence.

Trump didnt know it at the time, but his phone calls left a paper trail that could lead straight to obstruction of justice.

Trump interfered with investigation, Trump interfered with Russia investigation, Trump NSA memo, Trump obstruction of justice

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The Paper Trail To Impeachment Grows As NSA Memo Shows Trump Investigation Interference - PoliticusUSA

Educational Development Corporation Announces Record First Quarter Fiscal 2018 Revenues and Fifth Amendment … – EconoTimes

Posted on June 16, 2017 by Danzig

Educational Development Corporation Announces Record First Quarter Fiscal 2018 Revenues and Fifth Amendment Loan Agreement

TULSA, Okla., June 15, 2017 -- Educational Development Corporation (EDC) (NASDAQ:EDUC) (http://www.edcpub.com) today reports record first quarter fiscal 2018 unaudited net revenues.

Randall White, CEO of Educational Development Corporation, announced that the Company has had record first quarter revenues of fiscal 2018, totaling approximately $27.8 million. This revenue level represents an increase of $5.0 million, or 22% over the first quarter fiscal 2017 revenues of approximately $22.8 million.

Per Mr. White, Our first quarter double digit growth reflects continued strong demand for our products and the success of our sales teams. To ensure we are capable of handling our continued growth, our management team has recently approved a capital expansion project that will further automate to our Tulsa, OK distribution facility and expand our daily shipping capacity by as much as 100% over last years capacity levels.

We have also recently executed a new amendment with our existing lender which immediately expands our working capital facility from $7.0 million to $10.0M and allows us, upon lender approval, to grow this facility to $15M to support our continued growth in inventory and sales. This new amendment also includes a $3.0M Advancing Term Loan facility which will be used to finance our recent capital expansion project.

We continue to be grateful to all of our stakeholders that continue to support us during this very dynamic time in the Companys history.

About Educational Development Corporation

EDC is a publishing company specializing in books for children. EDC is the sole American distributor of the UK-based Usborne Books and owns Kane Miller Books, specializing in childrens literature from around the world. EDCs current catalog contains over 2,300 titles, with new additions semi-annually. Both Usborne and Kane Miller products are sold via retail outlets and by direct sales consultants nationally.

Cautionary Statement for the Purpose of the Safe Harbor Provision of the Private Securities Litigation Reform Act of 1995.

The information discussed in this Press Release includes forward-looking statements. These forward-looking statements are identified by their use of terms and phrases such as may, expect, estimate, project, plan, believe, intend, achievable, anticipate, continue, potential, should, could, and similar terms and phrases. Although we believe that the expectations reflected in these forward-looking statements are reasonable, they do involve certain assumptions, risks and uncertainties and we can give no assurance that such expectations or assumptions will be achieved. Known and unknown risks, uncertainties and other factors may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by forward-looking statements. Factors that could cause or contribute to such differences include, but are not limited to, our success in recruiting and retaining new consultants, our ability to locate and procure desired books, our ability to ship the volume of orders that are received without creating backlogs, our ability to obtain adequate financing for working capital and capital expenditures, economic and competitive conditions, regulatory changes and other uncertainties, as well as those factors discussed in our Annual Report on Form 10-K for the year ended February 29, 2016, all of which are difficult to predict. In light of these risks, uncertainties and assumptions, the forward-looking events discussed may not occur. All forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements in this paragraph and elsewhere in our Annual Report on Form 10-K for the year ended February 29, 2016 and speak only as of the date of this Press Release. Other than as required under the securities laws, we do not assume a duty to update these forward-looking statements, whether as a result of new information, subsequent events or circumstances, changes in expectations or otherwise.

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US magistrate OK’s video surveillance of Overtown store – Miami Herald

Posted on June 16, 2017 by Danzig

Miami Herald

US magistrate OK's video surveillance of Overtown store
Miami Herald
Otazo-Reyes said the ordered surveillance does not violate Bradley's right to privacy, and that her claim under the Fifth Amendment's Takings Clause is not ripe for review by a court because she hasn't been denied all reasonable use of her property.

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US magistrate OK's video surveillance of Overtown store - Miami Herald

Phillips: Congressman Goodlatte, Save the Fourth Amendment – Roanoke Times

Posted on June 16, 2017 by Danzig

Phillips is the founder of Tea Party Nation. He is based in Nashville, Tenn.

Among lawyers, there is a saying, Bad cases make bad law. Now, a single case is about to make very bad law. It will eviscerate the Fourth Amendment of the Constitution in the 21st Century.

And Congressman Bob Goodlatte can stop it.

While the background for this is a little technical, it is worth knowing. In 2013, the United States Department of Justice sought a search warrant on electronic communications for an individual, under Section 2703(a) of the Stored Communications Act.

The search warrant was served on Microsoft, for communications in the companys possession. Microsoft complied with the warrant as far as any digital communications that it had that were stored in America. The problem for law enforcement was some of those communications were stored in Ireland and Microsoft said it could not and would not produce those. Microsoft was held in civil contempt for refusing to turn over the emails and contents stored in Ireland.

Eventually the case went to the Second Circuit Court of Appeals, which ruled that Microsoft was not obligated to turn over emails and other digital records that were exclusively stored outside of the United States.

Not satisfied with that ruling, the Department of Justice chose a different route. They decided to ask Congress to give them what the Courts would not. The House Judiciary committee will hold a hearing on June 15th, entitled, Data stored abroad: Ensuring Lawful Access and Protecting Privacy.

Fortunately, the laws governing false advertising do not apply to Congress.

When the 4th Amendment was written, it was one of the most expansive statements of liberty and an incredible restriction on the power of government. The Fourth Amendment says, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

If you consider the world of the 1780s, that statement was amazing. Every form of property the founding fathers could think of was included. Today, we live in a world where the government wants all of the data about us it can get. Guilty or innocent, it does not matter.

The modern surveillance state is the exact reason our founding fathers incorporated the Fourth Amendment into the Bill of Rights.

In the last few years, the American people have been treated to one horror story after another that featured the abuse of citizens by our government. America is only scratching the surface of the unmasking scandal from the last year of the Obama administration. The story of the IRS abuse of citizens who dared to disagree with the government continues

Does any sane person trust giving the government more power?

Privacy, as we know it, is on the endangered species list. There are many government officials who believe that the only privacy rights Americans should have are those the government chooses to grant them.

There is an truism that says, Those who forsake liberty for security, deserve neither. As the Chairman of the House Judiciary Committee, Congressman Goodlatte has the power to stop this bad idea and protect the Fourth Amendment.

He needs to hear from Virginians that the government is too powerful now. He needs to hear that the government needs to stay within its bounds and allow liberty to flourish. He needs to hear that this idea should be tossed on to the ash heap of bad ideas and forever forgotten.

Congressman Goodlatte, help save the Fourth Amendment.

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Phillips: Congressman Goodlatte, Save the Fourth Amendment - Roanoke Times

So now coordinated traffic stops are a Fourth Amendment violation? – Hot Air

Posted on June 16, 2017 by Danzig

Orin Kerr at the Volokh Conspiracy has another twisted and complicated Fourth Amendment case for us to consider this week. It deals with United States v. Gorman and its yet another traffic stop challenge, but with several twists. This particular incident involved an officer stopping Straughn Gorman while he was driving his brothers motor home cross country to California. The officer believed that Gorman was carrying drugs and/or drug money in the RV but didnt have a drug sniffing dog with him and had no further grounds to search the vehicle so he let him go. The officer then called ahead to law enforcement in the next county and alerted them to Gormans approach and of his suspicions. A second officer (with a dog) intercepted Gorman and pulled him over on another very minor traffic violation. The dog detected drug residue and a warrant was issued, leading to a search which turned up $167,070 in cash, stuffed in white envelopes and sealed in plastic bags.

There were no criminal charges brought against Gorman, but the authorities did seize the money. The courts eventually found that the search was unsupportable and Gorman got his money back. This brings Kerr to ask the following question.

If an officer pulls over a car for a traffic violation and suspects the car has drugs, but he cant get the drug-sniffing dog to come in time to sniff it, can the officer end the traffic stop and call ahead to another police officer to get a dog and watch for the car to pull it over for a second violation? Specifically, if the second officer gets a dog and spots a second traffic violation, can the second officer pull over the car and use the drug-sniffing dog to get probable cause to search the car?

The bottom line to this lengthy discussion is that there are two conflicting elements to the decision, at least for my interest in the subject. One of them is the forfeiture of all that money and the efforts by the cops to keep it. From the sound of the police reports theres pretty much zero doubt that this guy was hauling drug money, but thats not the point here. The cops have to be able to prove their case before they should even be allowed to consider confiscating someones property. Since Gorman guilty or not in reality was never even charged its preposterous that they should keep his cash. That aspect of the challenge is easy enough for me.

But the stickier subject is the fact that the courts are once again summoning up the misbegotten fruit of the poisonous tree doctrine here. If you read the entire account of both officers in the full decision, even Ill admit that these traffic stops were dodgy at best. I have no clue what tipped off the first officer that there was money (as opposed to drugs) in the vehicle. But the fact is that something tipped him off. And it was later discovered that there absolutely was a large quantity of cash with drug residue on it. So why should the second officer be forbidden to act on that tip and have a dog sniff the vehicle? What if they had received an anonymous tip from somebody telling them the driver was trafficking drugs? Wouldnt that be suitable justification?

This fruit of the poisonous tree nonsense is completely out of hand. Theres a line to be drawn somewhere between ensuring the rights of citizens against unreasonable search or seizure and simply tying the hands of law enforcement to the point where they cant do their jobs when theres obviously a crime taking place. And cases such as this one cross that line by a fair margin.

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So now coordinated traffic stops are a Fourth Amendment violation? - Hot Air

Third party rights and the Carpenter cell-site case – Washington Post

Posted on June 16, 2017 by Danzig

In Carpenter v. United States, the Supreme Court will decide whether a warrant is required for the government to obtain historical cell-site records from a customers account. This post asks a question for those who think the answer should be yes: How do you deal with the Fourth Amendment rights of the cellphone providers? Im not sure what the answer should be, but I think its an important question to help understand the issues and stakes in Carpenter.

This is a complex issue, so Im going to break it down into three steps. Ill start with an overview of the third-party doctrine. Ill then turn to third-party rights under current law. Ill next consider different ways the third-party rights might work if the Supreme Court holds that a warrant is required.

I. Overview of the Third-Party Doctrine

Lower courts have held, consistently with U.S. Supreme Court precedent, that historical cell-site records are not protected under the Fourth Amendment. They have mostly based this holding on the third-party doctrine, the rule that you dont maintain Fourth Amendment rights in information that you voluntarily disclose to a third party.

As I explained in this article, the third-party doctrine was originally intended to be the subjective expectation of privacy test in Justice Harlans Katz concurrence. The idea was that you can only have privacy in what you try to hide from others: You need to manifest your subjective expectation of privacy to have Fourth Amendment rights, shielding it from observation, so that you cant have such rights in what you knowingly disclose to others. As my article explains, this rule has been around for a very long time, but it accidentally moved over time from the subjective expectation test into the objective expectation of privacy test in the 1970s and 1980s.

The third-party doctrine has had very wide application. If a criminal confesses to his friend about his crimes, the government can get the information from the friend without implicating the criminals Fourth Amendment rights. If a person commits an offense in front of an eyewitness, the government can get the information from the eyewitness without implicating the criminals Fourth Amendment rights. If a person goes to the bank and deposits a check, the government can get the information from the bank without implicating his Fourth Amendment rights. And if a person dials a number to place a phone call, the government can get the numbers dialed from the phone company without implicating his Fourth Amendment rights.

II. What About the Constitutional Rights of the Third Party?

A key implication of the third-party doctrine is that the government only has to deal with the constitutional rights of the person or business that received and now possesses the information. Upon the informations receipt, the thinking goes, the sender of the information no longer has Fourth Amendment rights in it. Only the rights of the recipient/holder of the information matter.

That raises the question of to what extent the constitutional rights of the holder of the information can limit law enforcement. The answer is: some, although not much. First, the Supreme Court has held that there are no Fourth Amendment limits to the government compelling a person to testify about what they know and what they saw. That raises Fifth Amendment issues if the person who would testify may be thought to be involved in criminal activity, but the compelled testimony is not a search or seizure under the Fourth Amendment. See United States v. Dionisio, 410 U.S. 1 (1973).

Second, if the government compels a person or company to hand over stored records as opposed to live testimony, the Fourth Amendment applies to the records but the constitutional limit is only unreasonable burdensomeness. There is no warrant or probable cause requirement. See, e.g., Hale v. Henkel, 201 U.S. 43 (1906); In re Horowitz, 482 F.2d 72 (2d Cir. 1973) (Friendly, J.). To be sure, the Fourth Amendment still applies fully to direct entry. The government ordinarily needs a warrant to break into a business and seize records just like it needs a warrant to break into a home. But its a different situation when the government is compelling assistance rather than searching directly.

These same Fourth Amendment rules apply when the government is seeking information that a business happens to hold about its customers. Whether the target of the investigation is the business or its customers doesnt matter under the Fourth Amendment. This means that if the government is seeking a companys assistance to disclose records about the businesss customers, the information is protected under the Fourth Amendment in the abstract because the business has its own Fourth Amendment rights. At the same time, the third-party business generally can be required to keep and disclose the records under a fairly low burden. See, e.g., California Bankers Association v. Shultz, 416 U.S. 21 (1974); Couch v. United States, 409 U.S. 322 (1973); Donaldson v. United States, 400 U. S. 517 (1971). And because the information or records ordinarily could not incriminate the third party in criminal activity, the third party business cannot assert a Fifth Amendment privilege against production. See Fisher v. United States, 425 U.S. 391 (1976).

The idea that a business has only modest Fourth Amendment rights to fight compelled disclosure of customer records isnt new. It has been around a long time. For example, in First National Bank v. United States, 267 U.S. 576 (1925), the IRS wanted to see if a couple had underreported their income on their federal income tax forms. The IRS issued a summons to the couples bank requiring the bank to produce their books showing the couples banking account records. The idea was that the bank statements would reveal whether the couple had falsely reported their income. The bank refused to comply under the Fourth Amendment on the ground that producing the records was an unreasonable search or seizure and that the bank wanted to keep its customers account records private.

The district court rejected the banks claim. This is not a question of a search and seizure of a partys books and papers, the court wrote, but of whether a witness who has information as to a partys dealings may be required to testify to those facts, and produce book entries as to such entries in connection with and supporting such testimony. It would be monstrous, the court rather dramatically added, for the government not to be able to determine the proper taxes that a person owed simply because the bank desires to protect the dealings of its customers from unauthorized investigation. The Supreme Court then affirmed the district court in a one-sentence per curiam opinion upon the authority of the courts precedents about subpoenas for business records (including Hale v. Henkel, cited above).

III. Applying the Traditional Approach to Historical Cell-Site Records

Applying this traditional body of law to historical cell-site records is pretty straightforward, I think. The cellphone company generates and stores business records of what cell towers were used to connect a customers calls. Those records are like the banks records in First National Bank. The cellphone provider is ordered to be a witness who has information as to a partys dealings [and] may be required to testify to those facts, and produce book entries as to such entries in connection with and supporting such testimony.

Granted, Congress requires an intermediate facts court order under the Stored Communications Act for the government to compel those records. A mere subpoena, which would be sufficient under the Fourth Amendment, isnt enough under the statute. But if the lesser process of a subpoena is sufficient to satisfy the rights of the company, presumably the greater process of an intermediate facts court order is as well (although that hasnt been challenged), And under the third-party doctrine, access to the account records wouldnt implicate any Fourth Amendment rights of the user.

If youll pardon a brief digression, its not even clear you need the third-party doctrine to say that the records dont implicate the users Fourth Amendment rights. The third-party doctrine is traditionally about the disclosure of private information that a suspect has revealed. The idea is that the suspect has private information, chose to reveal that information (often in confidence) to someone, and then the government sought that private information from that person. The cell-site business records in Carpenter are arguably one step removed from that. They are business records of how a private company decided to direct calls to and from the user. The records are about what a private company did for a user, not necessarily what a user chose to disclose in confidence to the company.

But at the very least, the third-party doctrine seems to fit the Carpenter case under traditional caselaw principles. So the old answer would be no Fourth Amendment rights for the customer, although statutory rights provided by Congress, and only modest Fourth Amendment rights for the cellphone provider.

IV. If the Third-Party Doctrine is Rejected, How Should Courts Deal With Third-Party Rights?

Thats the old law, at least. Now lets consider how the Fourth Amendment would work if the Supreme Court rejects that traditional approach. Lets assume the Supreme Court agrees with the defendant on both issues in Carpenter: First it holds that users have Fourth Amendment rights in cell-site records, and second it holds that the records are protected by a warrant protection.

Now we get to my question: Assuming the Supreme Court makes these two holdings, how would this work with respect to the providers rights? The government does not seek cell-site records by breaking into the providers business and rummaging around its offices and computers. That would ordinarily require a warrant even under the traditional law of the third-party doctrine. The records are already protected under the Fourth Amendment as held by the company, after all, and ordinarily the government would need a warrant to break into the company headquarters and seize them because of the companys Fourth Amendment rights.

The tricky problem, I think, is what to do with the providers rights once the user also has rights in the records. Assume, for now, that the company does not want to comply with the governments legal process. If the records were about the provider, a subpoena would be enough for the government to force the company to disclose them.

Heres what Im stuck on: How do you reconcile the conflict between that rule and a warrant requirement if the Fourth Amendment rights belong to the user? Is the idea that a company served with a subpoena for business records has to figure out if the subpoena implicates only its own Fourth Amendment rights (in which case the subpoena complies with the Fourth Amendment so long as it is not overbroad) or if it also implicates a users Fourth Amendment rights (in which case the subpoena is insufficient and a warrant is required?). If the government issues a subpoena for business records and it turns out that a customer also had rights in the data, would we say that compelled compliance with the subpoena violated the rights of the user but not the company?

Alternatively, if it doesnt make sense for every subpoena and sub-warrant court order to require a standing analysis before knowing if compliance is legal, which rule do you apply to both situations if a single rule has to be chosen? Do you say that both situations require a warrant, such that all subpoenas issued to businesses now require probable cause and warrant particularity (effectively eliminating the use of business record subpoenas for investigations)? Or do you say that neither situation requires a warrant, such that the user has Fourth Amendment rights in cell-site records but that a valid subpoena is enough to overcome the Fourth Amendment rights just as it it would for ordinary business records?

Next assume that the cellphone company wants to cooperate. If both the user and the company have Fourth Amendment rights in the records, then I imagine the common authority doctrine would apply. Under the common authority doctrine, if there is mutual use of the property by persons generally having joint access or control for most purposes, they both can consent to a search. See United States v. Matlock, 415 U.S. 164 (1974). Cellphone customers may not have joint access and control over cell site records: They dont know what the records say and have no ordinary means of accessing them. But if they nonetheless have Fourth Amendment rights in the records, I would think that at least the company has common authority over the records allowing them to legally consent to law enforcement access to the records.

If thats right, though, how does it work if the phone company is willing to help the government? Imagine Carpenter holds that users have Fourth Amendment rights in cell-site records, and that a warrant is ordinarily required. Can a provider tell the government that as long as the government has a 2703(d) court order, as required by the statute, that it will voluntarily consent to hand over the records under the common authority doctrine? If so, whether there is really a warrant requirement would depend on what the company wants to do: Because both the user and the company have common authority over the companys business record, the company could consent and eliminate the right.

You could try to avoid this by saying that the cellphone providers lack common authority over their own business records. But that seems like a hard result to justify. The companies created and used the records and keep them. It seems hard to say that they lack access to or control over the records that they created and keep for their own use.

Granted, caselaw would suggest that companies lack common authority to consent to a government search of the contents of communications, such as emails. In physical space, the landlord of an apartment or the hotel employee at the hotel lacks common authority to consent. See Chapman v. United States, 365 U.S. 610 (1961) (landlord); Stoner v. California, 376 U.S. 483 (1964) (hotel employee). By analogy, I would think that an email provider couldnt ordinarily consent to a search of the contents of a users emails, at least barring some unusual terms of service. But with cell-site records, I would think that the phone companies have at least common authority (if not exclusive authority) over the records of how their network connected calls.

V. Let Me Know Your Thoughts

For the seven readers that have made it this far, let me know your thoughts! There may be good answers to these questions. But it seems like largely uncharted territory, and Im not sure yet what those good answers are.

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Third party rights and the Carpenter cell-site case - Washington Post

WATCH: The View Lies About the Second Amendment, Wishes We … – NewsBusters (blog)

Posted on June 16, 2017 by Danzig

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WATCH: The View Lies About the Second Amendment, Wishes We ...
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The View, ABC's morning talk program that elevated Raven-Symone to political punditry, engaged in one of its more oafish rants Thursday on one of the many ...

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WATCH: The View Lies About the Second Amendment, Wishes We ... - NewsBusters (blog)

‘The View’ Explodes Over Second Amendment Debate, Goldberg … – Washington Free Beacon

Posted on June 16, 2017 by Danzig

BY: David Rutz June 15, 2017 12:21 pm

The liberal hosts of "The View" were well-armed with dubious talking points about gun control and the Second Amendment during a fierce debate Thursday in the wake of Wednesday's shooting that left House Majority Steve Scalise (R., La.) and four others wounded.

Host Sunny Hostin said "more guns is not the answer." Fellow host Joy Behar boasted of living in New York State with its strict gun laws, claiming that she would be afraid to live in an open-carry state and would never take public transportation.

"I'd be afraid that some guy on the subway would have a fit, just go mad because he was upset somebody took his seat and shoot somebody else," she said, not noting that the exact same thing could happen in New York.

Non-liberal hostJedediah Bila countered, however, saying she felt safe in states like Arizona and Texas.

"I'm not worried about law-abiding citizens carrying guns," Bila said. "They don't make me nervous."

Host Whoopi Goldberg cut over Bila to ask her if she had been around "afraid people with guns."

"I have," Bila said.

"I don't believe you, Jed. I don't believe you," Goldberg said.

"I'm a conservative! They're a very pro-gun, pro-Second Amendment [group]," Bila said, laughing.

Goldberg said that when assailants start shooting, people run, and the police may not know how to shoot if there were multiple people carrying guns. She did not point out that citizens bearing arms may be able to defend themselves against an attacker before the police arrived.

"The problem is, if the Capitol Police weren't there there would have been a massacre there," Bila said.

Told that's "their job," Bila was incredulous.

"If you live in a society where only the police have guns, that's called a police state," she said. "That is not the United States of America."

Goldberg then offered a dubious examination of the Second Amendment.

"The Second Amendment is about a militia," she said. "That's what it says."

It actually says more than that. Its full text reads, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

"It's the right to bear arms, to protect yourself and your family," Bila said.

Hostin said quietly that being able to defend one's self and family was "not what the Second Amendment is about."

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'The View' Explodes Over Second Amendment Debate, Goldberg ... - Washington Free Beacon

Second Amendment: An American tragedy | Local | azdailysun.com – Arizona Daily Sun

Posted on June 16, 2017 by Danzig

A year ago, Democratic members of the U.S. House of Representatives staged a sit-in demanding a vote on federal gun-safety bills following the shootings at the Pulse nightclub in Orlando. The National Rifle Associations lobbying was largely blamed for no vote happening. But looking deeper, the Second Amendment, with the unique American individualism wrapped around it, underlies all. It is Americas fundamental gun problem.

As Michael Waldman at the Brennan Center for Justice suggests in Politico Magazine, the NRAs construing of the Second Amendment as an unconditional right to own and carry guns (a right beyond actual constitutional law in Supreme Court rulings) is why it thrives and has clout.

Without clout derived from Second Amendment hyperbole, we might not have, for instance, stand your ground laws in more than 20 states starting with Florida in 2005, laws that professors Cheng Cheng and Mark Hoekstra report in the Journal of Human Resources do not deter crime and are associated with more killing.

Pockets of America were waiting for the NRAs Second Amendment fertilizer.

For many gun advocates, the gun is an important aspect of ones identity and self-worth, a symbol of power and prowess in their cultural groups. Dan Kahan at Yale University with co-investigators studied gun-safety perceptions and wrote in the Journal of Empirical Legal Studies how those most likely to see guns as safest of all were the persons who need guns the most in order to occupy social roles and display individual virtues within their cultural communities.

Or, as the essayist Alec Wilkinson writes more starkly on The New Yorkers website, although the (gun) issue is treated as a right and a matter of democracy underlying all is that a gun is the most powerful device there is to accessorize the ego.

A gun owner carrying his semiautomatic long rifle into a family department store, like Target, in a state permitting such if asked why will likely say because it is his right. He is unlikely to reveal the self-gratification gained from demonstrating the prowess and power of his identity, gained from using the gun to accessorize the ego. The Second Amendment here is convenient clothing to cover deeper unspoken needs, needs that go beyond the understandable pleasures and functions of typical hunting, for instance.

Australia is often mentioned as an example of nationwide gun-safety legislation reducing gun violence. Following the 1996 massacre of 35 people in Port Arthur, Australia, the government swiftly passed substantial gun-safety legislation. And as Professors Simon Chapman, Philip Alpers and Michael Jones wrote in JAMAs June 2016 issue, (F)rom 1979-1996 (before gun law reforms), 13 fatal mass shootings occurred in Australia, whereas from 1997 through May 2016 (after gun-law reforms), no fatal mass shootings occurred.

But Australia also has nothing akin to the Second Amendment.

Anthropologist Abigail Kohn studied gun owners in the U.S. and Australia who were engaged in sport shooting. She describes in the Journal of Firearms and Public Policy (2004) how it is immediately apparent when speaking to American shooters that they find it impossible to separate their gun ownership, even their interest in sport shooting, from a particular moral discourse around self, home, family, and national identity.

And thus, American shooters are hostile to gun control because just as guns represent freedom, independence the best of American core values gun control represents trampling on those core values.

In contrast, the Australians view guns as inseparable from shooting sports. And perhaps most importantly, Australian shooters believe that attending to gun laws, respecting the concept of gun laws, is a crucial part of being a good shooter; this is the essence of civic duty that Australian shooters conflate with being a good Australian. While the Australian shooters thought some gun-safety policies were useless and stupid, they thought that overall gun-safety measures were a legitimate means by which the government can control the potential violence that guns can do.

Unlike Australia (itself an individualist-oriented country), America has the Second Amendment. And that amendment has fostered a unique individualism around the gun, an individualism perpetrating more harm than safety.

Maybe someday the Second Amendment will no longer reign as a prop serving other purposes and, thus, substantive federal gun-safety legislation happens. But as Professor Charles Collier wrote in Dissent Magazine: Unlimited gun violence is, for the foreseeable future, our (Americas) fate and our doom (and, in a sense, our punishment for (Second Amendment) rights-based hubris).

The Second Amendment, today, is a song of many distorted verses. A song of a uniquely American tragedy.

Fred Decker is a sociologist in Bowie, Md., with a background in health and social policy research. He wrote this for the Orlando Sentinel.

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Second Amendment: An American tragedy | Local | azdailysun.com - Arizona Daily Sun

Joe Arpaio, former Arizona sheriff, to speak at Second Amendment rally in Belchertown – Amherst Bulletin

Posted on June 16, 2017 by Danzig

BELCHERTOWN Joe Arpaio, former sheriff of Arizonas Maricopa County who has styled himself Americas Toughest Sheriff, will be a guest speaker this weekend at a Second Amendment rally in town.

Arpaio, who turns 85 this week, will speak at Belchertowns 4th Annual Flag Day Second Amendment Rally, which starts at 10 a.m. Saturday at the Swift River Sportsman Club.

Dave Kopacz, organizer of the rally, said Arpaio will probably speak around noon, though the official schedule for the event is still in the works.

Arpaio is a Massachusetts native, born in Springfield. He became nationally known in the last 15 years for his hardline stances on immigration, for battling findings of racial profiling in his sheriffs department, and for his campaign to prove that President Obamas birth certificate was forged, which he continued to wage as recently as last fall.

After 24 years in office, Arpaio lost his latest re-election bid in November. His trial in federal court on a criminal contempt charge in connection with racial profiling is pending.

The Belchertown rally will also feature several other speakers, including Jeanette Finicum, the widow of Robert LaVoy Finicum, one of the occupiers at the Malheur National Wildlife Refuge in Oregon who was shot and killed during the armed standoff in January 2016.

Kopacz said he sees gun rights and property rights as connected. He believes the issues surrounding federal land use that came to a head in Oregon are similar to issues surrounding land trusts in Massachusetts.

We want to make sure we connect and parallel that with what is going on here, he said of the Oregon occupation.

Local Second Amendment activists will speak at the rally, too. Kopacz said both national and local speakers are important for the event.

I use the national guys to bring in the crowds, and the local guys to put them to work after, Kopacz said.

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Joe Arpaio, former Arizona sheriff, to speak at Second Amendment rally in Belchertown - Amherst Bulletin

First Amendment – constitution | Laws.com

Posted on June 16, 2017 by Danzig

The First Amendment of the United States Constitution is contained in the Bill of Rights. The First Amendment has proven to be one of the most fundamental and important in respects to the rights attributed to the populace of the United States. Originally, the First Amendment was implemented and applied solely to Congress. However, by the beginning of the twentieth century, it was upheld that the First Amendment is to apply to all forms of government, including state and local levels. The Supreme Court decided that the Fourteenth Amendment Due Process Clause would apply to the 1st Amendment, and thus rendering such a decision.

As stated in the United States Constitution, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, of of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances. Though a relatively short and concise assertion, the text provides for quite an encompassing set of rights that protect the citizens of the United States, and some of the most important and basic human rights. The First Amendment has many clauses that relate to each of the concepts that it sets out to protect. Religion is discussed in two clauses, one regarding the establishment of religion, and the other the free exercise of religion.

This proves to be one of the most important rights to secure by the Fathers of the Constitution, for so many people of European descent immigrated to the American Colonies to avoid religious persecution, and to find a safe haven to practice their religion of choice without any dire consequences. The First Amendment prohibits the government to establish a formal or national religion for the nation. It also addresses that there will be no preference of any particular religion, including the practice of no religion, or non religion.

The 1st Amendment guarantees the people of the United States the free exercise of religion, without interference from governmental factions. This right would also extend to any organization or individual infringing on such right, and would be deemed as unconstitutional.

One of the most commonly referred to clauses under the 1st Amendment is the freedom of speech. This clause has proven to be of great importance, particularly in the twentieth century and continues on with such regard in our lifetime. Under the text of the First Amendment, many issues are addressed regarding Freedom of Speech, and restrictions to exist in which such a practice may prove to be harmful to the general population or public. An example is the concept of sedition, and how this conduct can lead to insurrection against the government.

Other concepts also addressed include commercial speech, political speech, obscenity, libel, slander, and symbolic speech, such as the desecration of the American Flag. Under the First Amendment, there have been important and key court cases that have established a form precedence in how to apply the Amendment to these kinds of circumstances. The Freedom of the press is also included, and subject to similar restrictions as the freedom of speech.

The rights to petition and assembly often seem to be overlooked, for freedom of religion and speech are most commonly associated with the 1st Amendment. The right to petition is important because it gives citizens the opportunity to address their government in issues that have relevance and importance to the commonwealth. The formulation of an assembly, under the First Amendment, can be interpreted as citizens gathering and unifying for the purpose of communicating views or opinions on national issues, and for the relaying of pertinent information. The right to assembly is often related to that of petition, in such a way where citizens may assemble in the process of petitioning the government.

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First Amendment - constitution | Laws.com

The Brooklyn Machine vs. the First Amendment – Daily Beast

Posted on June 16, 2017 by Danzig

Donald Trump memorably threatened to open up libel laws as president, yet such an attack on the First Amendment would need to happen in the courts. And given a recent ruling in his favor in a defamation suit aimed at him, Trump knows full well that most judges maintain a very high bar for libel cases.

Even so, a libel suit can provide powerful interests with a potent weapon against intrepid reporters. Such a conflict is currently playing out in Brooklyn, and the drama features a notable cast of characters.

In October 2015, ProPublica published an investigative report on nursing home licensing in New York, which focused on the states largest for-profit network of such facilities, SentosaCare. The story questioned why, despite a record of repeat fines, violations and complaints for deficient care, SentosaCare continued to receive state approval when purchasing new nursing homes.

In March 2016, Jennifer Lehman, one of the two freelance reporters who wrote the piece, sent a letter to SentosaCares attorney, Howard Fensterman, requesting information for a follow-up story focused on the companys Medicare billing. Six days later, Fensterman filed a defamation suit in response to the October 2015 story.

Rather than target ProPublica, the complaint names Lehman and her fellow freelancer, Allegra Abramo. If the suit was intended to win damages, it would have made sense to target an established publisher with a sizable libel-insurance policy. Instead, the goal here appears to be stopping the reporters in their tracks.

Fensterman, a leading player in Nassau County Democratic politics, gained notoriety in 2014 for his aggressive defense of a nursing home on the Island after it brought in a male stripper to entertain the seniors. He is also counsel for (and a business partner of) SentosaCare, which is owned by Brooklyn resident Benjamin Landa, a central figure in Clifford Levys Pulitzer Prize-winning 2002 series in the New York Times exposing the harsh conditions faced by mentally ill residents in New York nursing homes.

Fensterman has been assisted in the case by his law partner Frank Seddio, the Brooklyn Democratic boss and president of the boroughs Bar Association. In New York City, the county machine typically hand-picks most of the State Supreme Court judges, but the one presiding in this case, Paul Wooten, was transferred from Manhattan, and is not a Seddio ally. Moreover, he has a strong track record of ruling in favor of defendants in defamation cases.

Such a cast made for lively theater at a late April appearance in Wootens courtroom, with the two sides debating the defendants motion to dismiss the case. Other than enter his name into the record, Seddio said nothing during the proceeding. According to one spectator (whos not involved in the case), the party boss appeared to be leering at Judge Wooten.

The crux of Fenstermans complaint concerns not whats in Lehman and Abramos ProPublica story, but what they left out (or whats known as libel by omission). When the story mentions investigations by New York State agencies into incidents of neglect at SentosaCare facilities, it does not include the fact that those same facilities had self-reported the incidents to the relevant agencies.

In advance of the first story, Fensterman had provided that information to the reporters, so he contends that the omission shows that the reporters intended to create reputational harm for SentosaCare. To drive home the point, he mentioned self-reporting five times in his short presentation at the dismissal hearing.

Laura Handman, retained by ProPublica to defend Lehman and Abramo, stressed to Judge Wooten that the piece is not a cover-up story. Instead, she explained, the reporters examined how nursing homes with track records of harmful incidents continue to gain new licensing, thus negating the importance of the self-reporting. According to defamation case law, Handman argued, unless omitted information changes the gist, or the meaning, or makes it false, then the decision of what to include or not to include are left to the wisdom of the journalist and publisher.

Trevor Timm of the Freedom of the Press Foundation tells the Beast that in general, The First Amendment allows for broad editorial discretion on what is and isnt reported on stories of public importance. And if public figures and institutions were allowed to sue every time they thought one ancillary alleged fact or another was left out of an article, it would grind journalism on any subject to a halt.

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In order to deter such a flood of retaliatory lawsuits, many statesincluding New Yorkhave enacted anti-SLAPP (strategic lawsuits against public participation) legislation, which allows for judges to award damages to defendants and force plaintiffs to pay for their legal costs. As Handman stated at the April hearing, This suit is a classic example of a well-financed company using a defamation suit to basically censor their critics. In short, a classic SLAPP action.

Wootens ruling on whether the case will go to trialor if not, whether he will impose anti-SLAPP penalties on the plaintiffsis expected sometime in the next few months. Rest assured that the stakes are high for everyone involved, from the lowly freelance investigative reporters to the mighty Brooklyn Democratic Party boss.

The Brooklyn Machine vs. the First Amendment - Daily Beast

Letter: First Amendment rights defense of Alex Jones is outrageous – INFORUM

Posted on June 16, 2017 by Danzig

His belief that the Sandy Hook elementary school shooting of 2012 was a hoax perpetrated by false flag government agents for the purpose of inhibiting gun ownership in the United States goes beyond distaste. This is a man who has looked parents in the eye and declared their dead children to have never existed.

Free speech is a freedom we enjoy despite the right's continued attacks against the free press (see Republican attempts to prevent congressional interviews during Jeff Sessions' testimony to Congress earlier this week) and to portray Alex Jones as a victim in this context is outright repugnant.

Let us not forget that it was Alex Jones's right-wing website that pushed the "Pizzagate" conspiracy that led to a member of the alt-right threatening the institution with a firearm. As LaVenuta doubtless knows, speech considered to be inciting violence is not protected under the First Amendment.

This goes beyond simply portraying Alex Jones as a "bad guy." His website affords him his First Amendment rights and to give him a platform on a nationwide network is irresponsible and dangerous. The right's consistent self-victimization is hypocritical to the point of being ludicrous, and to push this narrative as an attack on the First Amendment is nothing short of outrageous.

Roth lives in Fargo.

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Letter: First Amendment rights defense of Alex Jones is outrageous - INFORUM

More on the First Amendment and @RealDonaldTrump – The … – Washington Post

Posted on June 16, 2017 by Danzig

Last week, I blogged about whether the First Amendment restricts President Trumps ability to block users from his @RealDonaldTrump Twitter account. The Knight First Amendment Institute said yes. I said probably not, because I thought Trumps actions with regard to @RealDonaldTrump an account that (unlike @POTUS) precedes the Trump presidency and that conveys Trumps individual voice would likely be viewed as not government action but rather his own individual decisions and thus not bound by the First Amendment. I said (and still think) that its a close call, but I noted that some cases had suggested that even speech on government matters by high government officials may be seen as their own speech, rather than the governments, and I thought this was so here.

Holly O'Reilly, a snarky Twitter critic of President Donald Trump, got blocked by him online. She says it's "a 21st-century violation of free speech." (Adriana Usero/The Washington Post)

Jameel Jaffer from the Knight Institute was kind enough to respond. Ill quote his entire response and then offer a few thoughts of my own. (Amanda Shanor (Take Care) and Robert Loeb (Lawfare) have posted analyses that are similar to the Knight Institutes, though more detailed and worth reading.)

First, Jaffers thought:

Does the First Amendment Restrict Trump on Twitter?

The First Amendment binds President Trump when he acts in his official capacity. How do we know, though, when hes acting in his official capacity, rather than his personal one?

Earlier this week, the Knight Institute sent President Trump a letter on behalf of people whom President Trump had blocked from his most-followed Twitter account, @realDonaldTrump. We argued that the account constitutes a designated public forum under the First Amendment and that consequently President Trump is barred from blocking people from it simply because they ridiculed or disagreed with him. But why does the First Amendment apply at all, one might ask, to @realDonaldTrump, an account that Trump opened long before he became president and that could be understood as the personal counterpart to @POTUS, the official presidential account?

Professor Volokh argues (tentatively) that @realDonaldTrump is the megaphone of Trump-the-man, not Trumpthe-president. Government officials, he points out, can operate in two different capacities on behalf of the government and expressing their own views. He writes that Trump opened @realDonaldTrump before he became president, that the account is understood as expressing [Trumps] own views apparently in his own words and with his own typos, and that the account does not express the institutional position[s] of the executive branch. He distinguishes @realDonaldTrump from @POTUS, which has a handle more focused on the presidents governmental role. He states that the question falls near a borderline that hasnt been mapped in detail, but he concludes (again, tentatively) that @realDonaldTrump is not a public forum.

Its of course true that public officials sometimes act in their personal capacities. A president probably has less latitude to act in a personal capacity than, say, a city councilor does, but even a presidents statements will sometimes be attributable to the president-as-citizen rather than the president-as-president. If President Trump established a private Facebook page to communicate with business acquaintances about golf, no one would contend that the First Amendment barred him from excluding people from the group based on their views.

But wherever the line between personal accounts and officials ones, @realDonaldTrump must be on the official side of it. Here are the facts, as I understand them:

If these are the facts, as I think they are, I dont think @realDonaldTrump can fairly be characterized as a project of Trump-the-man, even if it began as his project. Whatever the account once was, its now an important channel through which Trump-the-president communicates with Americans about his presidency. Its not a personal account; its an official one and consequently its an account to which the First Amendment applies.

Heres my thinking:

1. That Trump is talking about government-related matters to the public, including what he is doing and what he will do, doesnt make it government speech. As I mentioned in my earlier post, when an incumbent running for reelection gives a campaign speech, he is not acting on behalf of the government. Likewise, even Supreme Court justices who believe that the government may not endorse religion think that its fine for government officials to express religious views in their speeches here, for instance, is the view of Justices John Paul Stevens and Ruth Bader Ginsburg in Van Orden v. Perry:

Our leaders, when delivering public addresses, often express their blessings simultaneously in the service of God and their constituents. Thus, when public officials deliver public speeches, we recognize that their words are not exclusively a transmission from the government because those oratories have embedded within them the inherently personal views of the speaker as an individual member of the polity.

When I put up posts, or moderate comments, Im not acting on behalf of the state of California (even though blogging is part of my job, for which I get some modest credit in my job evaluations, much as professors who write op-eds are given some credit for such service to the public); likewise for Trump. To be sure, my powers stemming from my government job are small, and Trumps powers are vast. But the principle strikes me as quite similar.

For whatever its worth, the only case that has closely dealt with this, Davison v. Plowman, took the view that a government official may be speaking as a citizen and not as the government, even when he is mak[ing] public statements though social media to constituents though I should acknowledge that this is just a federal trial court case and not a binding precedent.

2. Sean Spicers statement that @RealDonaldTrump tweets are official statements doesnt count for much here, I think I dont think that a press secretary can bind the president, the executive branch or the judiciary on a legal question such as this.

3. That courts have given the presidents tweets weight in determining his motivations is not, I think, relevant: Indeed, the U.S. Court of Appeals for the 4th Circuits decision, cited by the Knight Institute, cited a tweet from when Trump was a candidate that certainly couldnt have been government speech. The theory behind the 4th Circuits use of the tweet is that Trumps motivations were relevant to whether he had a discriminatory intent at the time he created the policy, and for that the 4th Circuit didnt care whether the tweet was an official statement or just his views in 2015 as a private citizen.

4. To the extent that the presidents aides regularly write tweets in his name (not certain, and the cited source is from the time when the president was just a candidate), the matter might be different, though that is not entirely clear.

* * *

While Im talking about this, let me briefly note one other post about this, from Noah Feldman (Bloomberg). Feldman focuses on the fact that Twitter is a privately owned platform and concludes that its highly likely that there is no state action when blocking the followers takes place on such a private platform.

I dont think thats quite the right inquiry, though: If, for instance, a government agency rents space in a privately owned building to hold a public meeting and then lets citizens speak during a public comment portion of the meeting, it has created a limited public forum in which it cant discriminate based on viewpoint.

The same is true if a government agency (and not just a single politician) runs a Facebook page and allows citizens to comment there that would indeed be a limited public forum, because its government-run even if it uses private property. (See the Davison cases cited in my original post.) Likewise with Twitter, the question is whether Trump is acting as Trump-the-man and not Trump-the-government-official in running the Twitter feed, not whether Twitter is a state actor.

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More on the First Amendment and @RealDonaldTrump - The ... - Washington Post

BRIEF-Rand Logistics Inc says co’s units enterS first amendment to amendment no. 4 and waiver to credit agreement – Reuters

Posted on June 16, 2017 by Danzig

June 15 Rand Logistics Inc:

* Rand Logistics Inc says effective as of June 14, co, co's units entered first amendment to amendment no. 4 and waiver to credit agreement

* Rand Logistics Inc - pursuant to amendment, waiver provided in previously disclosed May 31, 2017 first Lien Waiver, was extended to June 30, 2017

* Rand Logistics- effective June 14, co, units entered fifth amendment and waiver to credit agreement with guggenheim corporate funding, lightship capital

* Rand Logistics - pursuant to fifth amendment, waiver provided in previously disclosed May 31, 2017 second lien waiver, was extended to June 30, 2017 Source text: (bit.ly/2rlFNao) Further company coverage:

June 15 S&P Global Ratings warned on Thursday that Minnesota's credit ratings could be downgraded if the state fails to fund payments for some state debt that was left without an appropriation for the upcoming fiscal biennium.

WILMINGTON, Del., June 15 A clean energy group that has opposed a nuclear project in Georgia estimates the plant's cost has soared to $29 billion in the wake of the bankruptcy of half-finished plant's contractor, Westinghouse Electric Co, a unit of Toshiba Corp

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BRIEF-Rand Logistics Inc says co's units enterS first amendment to amendment no. 4 and waiver to credit agreement - Reuters

Female Genital Mutilation: 4th Person Charged In Historic 1st Amendment Case – Patch.com

Posted on June 16, 2017 by Danzig

Patch.com

Female Genital Mutilation: 4th Person Charged In Historic 1st Amendment Case
Patch.com
Female Genital Mutilation: 4th Person Charged In Historic 1st Amendment Case. Another individual has been charged in the historic Detroit federal court case, the first test of a U.S. law criminalizing FGM.
Female Genital Mutilation As a First Amendment Right? 5 Lawyers ...Glamour

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Female Genital Mutilation: 4th Person Charged In Historic 1st Amendment Case - Patch.com

Former People’s Bank of China Official to Give Cryptocurrency Lecture – CoinDesk

Posted on June 16, 2017 by Danzig

A former official of China's central bank is set to give a lecture on cryptocurrencies later this month.

Ping Xie wasthe first bureau chief of the People's Bank of China's Financial Stability Bureau. During his time at the PBoC, Xie worked inthe central bank'sNon-Banking Supervision Department andResearch Bureau, while also serving as the governor of its branch in Hunan Province, according to Bloomberg. He began his stint at the PBoC in 1985, departing in 2005.

Xie's lecture on cryptocurrencies is part of a series of nine lectures he plans to give on the topic of digitalfinance. The first lecture will beposted online on 23rd June, according to promotional materials.

It's a notable development for a long-time fixture in China's regulatory space who played a role in the economic reforms undertaken by China's government.

Beyond his work at the central bank, Xie served asgeneral manager ofCentral Huijin Investment Company, a state-owned company that manages state-owned assets and investments on behalf ofChina, where he focused on overseas investments.

Xie isalso the author ofthe book focused on digital finance entitled "Internet Finance in China: Introduction and Practical Approaches".

Image Credit:Southwestern University of Finance and Economics

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Former People's Bank of China Official to Give Cryptocurrency Lecture - CoinDesk

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