Topic: Law and Civil Liberties

DoJ’s Public Lobbying - A Legal Violation?

Here’s the language of 18 U.S.C. § 1913 (“Lobbying with appropriated moneys”):

No part of the money appropriated by any enactment of Congress shall, in the absence of express authorization by Congress, be used directly or indirectly to pay for any personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device, intended or designed to influence in any manner a Member of Congress, a jurisdiction, or an official of any government, to favor, adopt, or oppose, by vote or otherwise, any legislation, law, ratification, policy, or appropriation, whether before or after the introduction of any bill, measure, or resolution proposing such legislation, law, ratification, policy, or appropriation; but this shall not prevent officers or employees of the United States or of its departments or agencies from communicating to any such Member or official, at his request, or to Congress or such official, through the proper official channels, requests for any legislation, law, ratification, policy, or appropriations which they deem necessary for the efficient conduct of the public business, or from making any communication whose prohibition by this section might, in the opinion of the Attorney General, violate the Constitution or interfere with the conduct of foreign policy, counter-intelligence, intelligence, or national security activities. Violations of this section shall constitute violations of section 1352 (a) of title 31.

Now here is some language from a Department of Justice Web site called lifeandliberty.gov:

FISA 101: Why FISA Modernization Amendments Must Be Made Permanent
FISA Amendments In The Protect America Act Of 2007 Remain Necessary To Keep Our Nation Safe

The Protect America Act modernized the Foreign Intelligence Surveillance Act (FISA) to provide our intelligence community essential tools to acquire important information about terrorists who want to harm America. The Act, which passed with bipartisan support in the House and Senate and was signed into law by President Bush on August 5, 2007, restores FISA to its original focus of protecting the rights of persons in the United States, while not acting as an obstacle to gathering foreign intelligence on targets located in foreign countries. By enabling our intelligence community to close a critical intelligence gap that existed before the Act became law, the Protect America Act has already made our Nation safer.

The tools provided by the Protect America Act are scheduled to expire in early February 2008 – it is essential that Congress act to make the legislation permanent. Congress must also pass legislation to provide meaningful liability protection to those alleged to have assisted our Nation following the 9/11 attacks.

A public DoJ Web site that says “it is essential that Congress act to make the legislation permanent” seems designed to influence Members of Congress. It was probably created and is maintained through the expenditure of appropriated funds. Did Congress expressly authorize this? Is a public Web site “proper official channels”? Did the Attorney General find that failing to advocate for this law would interfere with national security?

It looks like this Web site violates the law, but it’s hard bein’ a country lawyer here in the big city.

Privacy Advocacy Overreach

I originally started studying and writing about privacy policy because I thought the advocates in Washington, and Congress itself, didn’t have a full grasp of the issues. They were treating privacy as a political football, and grinding their political, ideological, and self-interest axes on “the privacy issue.”

Illustrating how that problem may persist, Declan McCullagh has a strong rip on the Electronic Privacy Information Center on his Iconoclast blog. It seems that EPIC and some of its allies recently filed a strongly worded complaint with the Federal Trade Commission about problems with AskEraser that no longer exist.

The AskEraser cookie originally had a time-stamp that could act like a unique identifier, so Ask.com changed it. Nonetheless, in went EPIC’s “Complaint and Request for Injunction, Request for Investigation and for Other Relief.”

The government’s undirected, surveillance-heavy overreaction to the 9/11 terrorist attacks brought me together with lots of folks with whom I disagree on lesser issues like private-sector regulation and privacy practices. I often joke that people will know their privacy is pretty well protected when I’m back to fighting with EPIC and the ACLU. Well, I don’t intend to pick a fight now, because there’s still too much to be done, but a privacy advocacy group shouldn’t just be an FTC-complaint mill.

Declan speculates that EPIC files with the FTC rather than suing (there are some arguable causes of action) because courts would sanction them for frivolous filings. Prospectively calling EPIC’s future bluffs, he says: “The next time you see them complaining to the FTC about some alleged wrongdoing, remember these attorneys’ odd reluctance to litigate.”

Padilla Gets 17 Years

Jose Padilla received a 17-year prison sentence today.  Padilla’s criminal trial and sentence were fairly straightforward.  It was Padilla’s imprisonment in a military brig between 2002 and 2005 that raised profoundly important questions concerning the power of the presidency.  Can the president lock up any person in the world and then deny that person access to family, defense counsel, and civilian court review?  And what about the use of “harsh conditions” and “environmental stresses”?  Can such techniques be employed against anyone once the president gives an order?  Those legal questions remain unsettled even today.  By abruptly moving Padilla from the military brig and into the ordinary criminal justice system, the Bush administration was able to forestall Supreme Court review of the president’s military powers.

For additional background, go here, here, and here.

The Corruption of Barack Obama

Barack Obama stands accused of moral shortcomings regarding money in politics: he has not invited the press to all of his fundraisers.

Obama has voluntarily disclosed his bundlers and opened some fundraisers to the media. But that is not enough. He is not inviting the media to all his fundraisers, probably to protect the privacy of his supporters. After all, Hillary may yet become president, and like most politicians, she is not known for forgiving and forgetting.

Obama might learn a lesson here. If you give the media what they want, they will only demand more. If you give them access to all your fundraisers, they will write stories about how big donors are corrupting the once-promising reformer.  On the other hand, if you don’t let them come to the fundraisers, they will write stories about how big donors are corrupting the once promising reformer.

The media have only one storyline about private money in politics: it corrupts the process. You don’t get a pass by supporting their crusade to restrict private money in elections (Obama does) or by giving in to their endless demands for access. They will write the same story.

Obama has shared that narrative until now. He has promised to move against big money when he has power. He is also famously open-minded. Perhaps his own “corruption” might occasion some rethinking about the politics of “reform.”

Wannabe Software and Movie Pirates: Hold Your Fire

A story from the Associated Press today suggests that WTO-sanctioned piracy is still a way off. Antiguan Finance Minister Errol Cort arrives in Washington today to discuss the internet gambling dispute with U.S. Trade Representative Susan Schwab, in hope of resolving the case.

Last month I reported that a WTO arbitration panel had agreed with Antigua that the U.S. restrictions on gambling over the internet entitled the Antiguans to retaliation – in this case by suspending its obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) to protect U.S. trademarks and copyrights, as well as suspending market access for some U.S. services firms. Antigua has long maintained that retaliation is not its preferred option, and would rather negotiate with the Americans to allow regulated access to the U.S. internet gambling market.

Antigua has strongly rejected the WTO arbitrators’ decision about the level of damages – a decision that is made especially controversial given that one of the three panelists dissented from the opinion, a rare occurrence in WTO jurisprudence, and by their own admission that they were on “shaky grounds” in determining the level of damages. According to Antigua, by basing their analysis on the “most likely scenario of compliance” by the United States rather than the export opportunities foregone, the arbitrators were showing unfair sympathy to the American case. The Americans were pleased that the $21 million in annual damages was well below the figure sought by Antigua ($3.4 billion), but expressed concern over the form of retaliation authorized. The United States had originally argued that their restrictions were worth only $500,000 in damages.

Notwithstanding the back-and-forth over the amount of sanctions, a couple of problems remain. First, who is to say how much it is worth to, say, download illegally a new CD or movie. Is it equivalent to the market value of buying a legal copy of the material? Or is it worth the cost of the download itself (less than a penny, I imagine). That is important because the WTO would limit Antigua to $21 million fairly strictly, and the U.S., under instruction from Hollywood and the software industry, would be expected to pounce if they saw the limit violated. There is also the question of whether Antigua would be able to export the fruits of its copyright violation to other countries and “earn” the $21 million that way.

While this is not the first time that the WTO has sanctioned violating intellectual property protections by suspending obligations under (that first came in March 2000, when the WTO gave Ecuador permission to suspend TRIPS obligations to the tune of $201 million in their dispute over European banana tariffs), the authorization has never been “actioned.” And, if the U.S. comes to its senses and begins to allow its citizens to gamble online freely, this case may not bring that to fruition either.

DHS: Require REAL ID for Prescriptions

C|Net News reports that DHS Assistant Secretary for Policy Stewart Baker called today for national ID checks when Americans buy prescription drugs. This is yet another in a growing list of activities that federal authorities would bring within their control should the national ID system created by the REAL ID Act be implemented.

The eminently savvy Baker was unintentionally ironic when he reportedly said he “doesn’t ‘understand’ the civil liberties objections to the plan.”