LibertyVoice

Today, Chief Judge Vaughn Walker of the federal district court in San Francisco found that the government illegally wiretapped an Islamic charity’s phone calls in 2004, granting summary judgment for the plaintiffs in Al-Haramain Islamic Foundation v. Obama. The court held the government liable for violating the Foreign Intelligence Surveillance Act (FISA).

Today’s order is the first decision since ACLU v. NSA to hold that warrantless wiretapping by the National Security Agency was illegal. The decision in ACLU v. NSA was overturned on other grounds in 2007, and the focus of the government’s litigation strategy since then has been to avoid having any court rule on the merits of the issue.

The court’s thorough decision is a strong rebuke to the government’s argument that only the Executive Branch may determine if a case against the government can proceed in the courts, by invoking state secrets. The Obama Administration adopted this “state secrets privilege” theory from the Bush Administration’s legal positions in this and other warrantless wiretapping cases.

The government’s overreaching claim of unbridled executive power finally backfired today in the Al-Haramain case. As the court wrote in its order, “Under defendants’ theory, executive branch officials may treat FISA as optional and freely employ the SSP [state secrets privilege] to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive branch abuses of surveillance authority.”

The court, although noting the government’s “impressive display of argumentative acrobatics,” flatly rejected this theory. “Defendants could readily have availed themselves of the court’s processes to present a single, case-dispositive item of evidence at one of a number of stages of this multi-year ligitation: a FISA warrant. They never did so.” Therefore, “for purposes of this litigation, there was no such warrant for the electronic surveillance of any of plaintiffs,” and the surveillance therefore violated FISA.

In his opinion, Judge Walker found that the plaintiffs had succeeded in making out a case based solely on non-classified public evidence that the government had eavesdropped on their phone calls. Because the government refused to confirm or deny that it had ever gotten a court order authorizing that wiretapping, Walker concluded that the government had failed to dispute the plaintiffs’ claims. Walker then held that the government violated FISA when it spied on the charity without first obtaining an order from the secretive Foreign Intelligence Surveillance Court to authorize the spying.

The plaintiffs also brought several other claims against the government based on the illegal wiretapping, including claims for violation of the First and Fourth Amendments to the Constitution. However, today’s order only granted summary judgment on the FISA claims. The next step is up to the plaintiffs, according to Judge Walker. Al Haramain can either voluntarily dismiss their non-FISA claims and obtain a final judgment, including damages, on their FISA claim, or they can continue to press their additional claims, in which case the court and the parties will have a case management conference to determine how to proceed. Regardless of which path the plaintiffs choose, the government is ultimately likely to appeal Judge Walker’s decision to the Ninth Circuit Court of Appeals, which will also be considering appeals in EFF’s NSA wiretapping lawsuits Hepting v. AT&T and Jewel v. NSA.

Pablo Soto, the 30 year-old brain behind the file-sharing applications Blubster, Piolet and Manolito is being sued by the Spanish RIAA, but that hasn’t stopped him from launching another P2P venture. This week his company launched the media search engine FooFind, allowing users to search the web for torrents, Ed2k links and more.

Atlanta – The Electronic Frontier Foundation (EFF) and attorney Bryan Vroon asked the U.S. Court of Appeals for the 11th Circuit today to reexamine a panel ruling that violated a whistleblower’s Fourth Amendment right to privacy in his email communications.

The whistleblower, Charles Rehberg, uncovered systematic mismanagement of funds at a Georgia public hospital. He alerted local politicians and others to the issue through a series of faxes. A local prosecutor in Dougherty County, Ken Hodges, conspired with the hospital and used a sham grand jury subpoena to obtain Mr. Rehberg’s personal email communications. The prosecutor then provided that information to private investigators for the hospital and indicted Mr. Rehberg for a burglary and assault that never actually occurred. All the criminal charges against Mr. Rehberg were eventually dismissed. Hodges is currently running for Attorney General of Georgia in the Democratic primary.

Mr. Rehberg filed a civil suit against the prosecutors and their investigator for their misconduct, but the appeals court erroneously ruled that he did not have a reasonable expectation of privacy in his private email.

“Mr. Rehberg did the right thing and blew the whistle on financial mismanagement,” said EFF Civil Liberties Director Jennifer Granick. “In response, he was persecuted by local authorities and his constitutional rights were violated. It’s well established that individuals have a right to privacy in the content of their communications, electronic or otherwise. We’re asking the court to look at this again and follow the law.”

Also at issue in EFF’s request for rehearing is the panel’s decision to give immunity to county prosecutors and their investigators for manipulating and fabricating “evidence” and defaming Mr. Rehberg as a felon in comments to the press.

“The Supreme Court has ruled that prosecutors are not entitled to immunity when they fabricate evidence during the course of an investigation, knowingly defame an innocent man as a felon to the press, or collude with private parties to retaliate against a critic, as they did here,” said Mr. Vroon, who has represented Mr. Rehberg since the beginning of his lawsuit. “This case involves a gross misuse of power which damaged an innocent man who never committed a burglary or assault on anyone.”

For the full brief:
http://www.eff.org/files/filenode/rehberg_v_hodges/rehbergmotion.pdf

For more on this case:
http://www.eff.org/cases/rehberg-v-hodges

Contacts:

Jennifer Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

Bryan A. Vroon
Attorney
Law Offices of Bryan A. Vroon, LLC
bvroon@vclawfirm.com

The plague of mass litigation “pay up or else” letters has now hit the shores of the United States. 20,000 BitTorrent users are to be targeted soon, with 30,000 in the months to follow. According to new information, 300 movies are set for enforcement action, with their rightsholders receiving just 30% of the spoils.

Reproduced from Boing Boing”UK Labour MP Austin Mitchell has had a change of heart on the dread Digital Economy Bill and has produced a nearly day motion asking to have all 24,000+ words of it subjected to scrutiny and debate, rather than being hidd…

The reform of British libel law has been something of a will o’ the wisp in recent years.  Every few months it seems, the issue jumps to the fore, either through international pressure, a judicial decision, or a domestic campaign.  But just as quickly, it disappears back into the legal morass.

But finally, it looks like Britain’s legal heavy hitters are getting involved.  Last week, British Justice Minister Jack Straw rolled out the Labour government’s outline for a long-needed libel reform bill.  The Independent reports:

Mr Straw said ministers were now "convinced" that reform of the law in
England
and Wales was necessary, amid concerns that existing legislation was
having
a "chilling effect" on freedom of expression. . . .

"On the basis of all the views that have been submitted, the Government
is
convinced that reform of the law on libel is needed, and that action
should
be taken on a number of aspects and procedures," Mr Straw said.

"The Government believes that the programme of work which it intends to
take
forward represents an effective and practical way to ensure that our
libel
laws achieve a fair and just balance which enables people to protect
their
reputations against defamatory allegations without having a harmful
effect
on freedom of expression."

This is no small thing.  Previous pushes for libel reform have been largely by soft powers—non-governmental bodies and lower court judges who have tried to distinguish the cases that earned London its "libel capital of the world" title.  But Mr. Straw’s statement indicates that Labour is finally throwing its weight behind libel reform, and a considerable weight it is too.  As British legal website The Lawyer writes, "the deeper problems [of libel law] are really such that primary legislation is
necessary."  And primary legislation is finally possible with Labour’s commitment.

Straw outlines the reform plans in more detail in an article he wrote for The Guardian:

The main areas we are looking at are threefold. Firstly, we’ll be
introducing a single publication rule, under which a defamation claim
will have to be brought within one year from the date of the original
publication. The interests of people who are defamed will be protected
by giving the court the power to extend this period where necessary.

This
element will specifically tackle the problem of internet publishing,
and the way the law currently allows defendants to be
taken to court every time allegedly libellous content is accessed
online. This causes great uncertainty, as publishers are effectively
subject to open-ended liability. Clearly, our current laws are not fit
to handle the realities of the 21st century media landscape and internet
use—this change will address that.

Secondly, the Bill will
include provisions to prevent the growth of so-called "libel tourism",
which some believe has been increasing rapidly in recent years. I’m
asking the Civil Procedure Rule to consider tightening the rules where
the court’s permission is required to serve defamation cases outside
England and Wales. This will help head off inappropriate claims at the
earliest stage and stop them from reaching court.

Finally—and
perhaps most importantly for the media—we’ll be looking at whether to
introduce a statutory defence to protect publications that are in the
public interest. A statutory public interest test which is clearly and
simply expressed could help ensure that the work done by journalists,
scientists and NGOs to investigate and inform the public can continue—while also preserving the right we all have to protect our reputations.

This is all excellent news.  A statutory confinement on "publishing" is welcome—the idea that a website is "published" every time it’s downloaded is as ludicrous as saying a book is "published" every time it’s opened.  And putting an end to libel tourism is huge—the British libel laws have produced some outrageous results, highlighted by the case of Rachel Ehrenfeld, which spurred legislation from New York, California, Illinois, and Florida, as well as efforts on the federal level, to stop the enforcement of such rulings in the US. 

And indeed, the "public interest" defense is sorely needed, though the concept needs further fleshing out.  Based on Straw’s description, it doesn’t seem quite the powerhouse that the First Amendment is, and it may be similar to the common law public interest defense found in the law of many U.S. states.  One wonders who decides just what’s in the "public interest"—is it categorical, based on the type of publisher?  Straw’s statement about "a statutory defence to protect publications that are in the public interest" could be read that way.  Hopefully it’s less about "publication" as the organization than as the article—surely, a blog post or a forum comment about an issue of the day is as much "in the public interest" as a newspaper article or NGO report.  Still, at first blush, Straw’s proposal holds promise.  Hopefully, the parliamentarians can fulfill that promise.

Naturally, the various proponents of libel reform in Britain are pretty pleased.  The Times of London (a paper not known for its support of Labour) wrote in an editorial that "the Justice
Secretary’s proposed reforms are right," and the Libel Reform Campaign, a British NGO that espouses, well, libel reform, "welcomed" Straw’s commitment.  And while The Guardian did not weigh in with an editorial on the subject, that may just be because its support is so obvious that it needs no mention. 

Of course, Labour support is all well and good, but the soonest such a reform bill could be considered is in the next parliament, which will be elected this spring. The knowledgeable reader is likely aware that the current Labour government may well be ousted in elections, in which case it wouldn’t matter much what Straw thinks.  So what says his counterpart in the Tories, who are favored to take over the government? 

Good news!  The Conservative shadow minister, Henry Bellingham, has also come out in support of libel reform, reports journalism.co.uk.  Citing word from the Libel Reform campaign, journalism.co.uk writes that Mr. Bellingham would make libel reform a priority.  The Conservatives had been the last remaining major party that had yet to support libel reform, until Bellingham’s commitment.  Not exactly as encouraging a commitment as Straw’s, but they’ve spoken out in favor of libel reform now, which they hadn’t before.

So it’s finally looking like a matter of "when," not "if," libel reform comes to pass in Britain.  Given the embarrassment that is British libel law, hopefully that "when" is sooner than later.

(Arthur Bright is a third-year law student at the Boston
University
School of Law
and a former CMLP Legal Intern. Before attending law school, Arthur was
the online news editor at The Christian Science Monitor.)

Photo courtesy of Flickr user Jerome Briot (http://www.flickr.com/photos/briot/),
licensed under a CC Attribution-Noncommercial-No Derivative Works 2.0
Generic license (CC
BY-NC-ND 2.0).

The New Jersey supreme court has held that emails an employee sent to her lawyer using her company-issued computer and a personal Yahoo account are protected by the attorney-client privilege.
Stengart v. Loving Care Agency, Inc., — A.2d —, 2010 WL 1189458 (N.J. March 30, 2010)
The New Jersey courts have a reputation of being protective [...]

That’s the title of my Slaw post for today.   It reads as follows:
Tom Jenkins of Open Text spoke at the London TechAlliance “Gearing Up For Growth” conference yesterday about digital media in Canada.    He likened the current position of traditional media (TV, newspapers) to town criers at the advent of the printing press.  Here’s one [...]

A United States court wants isoHunt to stop inducing copyright infringement via torrents that can be found through the popular BitTorrent search engine. The proposed injunction would require isoHunt to censor its site based on a list of keywords. A similar measure led to the quasi-shutdown of Mininova last year.

Pangloss is back from Vienna where she hugely enjoyed BILETA 2010, courtesy of Erich Shweighofer and the Vienna Law Faculty and was amazed at the palatial Hapsburg museum they work in :-) More on BILETA later, I hope.However first, because several peop…