dnc – Techdirt (original) (raw)

DNC Sues Georgia Governor Over His Bullshit Claims Democrats Hacked The State's Voter Registration System

from the hope-you've-got-a-20-on-you,-Kempster dept

The never-ending amount of election related litigation keeps on coming. The Trump campaign is still heavily invested in lawsuits — a practice it started before the election and it hasn’t scaled back now that its boy has been handed an L.

Georgia remains a hotly contested state, thanks in part to pressure applied by the outbound President and his many minions. It will recount all five million votes, which Trump appears to believe will reverse Biden’s 14,000-vote lead.

Georgia has long been a victim of its Governor, dating back to his days as the Secretary of State. During Brian Kemp’s tenure as an elected official, voting in Georgia has been little more than his political plaything. Issues with the state’s voting tech were ignored in favor of Kemp’s indulgence in wild speculation, culminating with his baseless claims the Democratic National Committee had hacked the state’s voter registration system. A Georgia Bureau of Investigation investigation found no evidence supporting Kemp’s ridiculous assertions.

Now, as Courthouse News reports, the DNC is suing Kemp over his election related bullshit. This isn’t a defamation suit, even though it’s possible to see that claim being raised. Instead, the DNC alleges the then Secretary of State violated federal election laws with his claims of DNC hacking and his decision to air his speculation hours before the polls opened in 2018.

The lawsuit [PDF] opens with this stinging sentence, which highlights one the many problems with allowing Brian Kemp to oversee the 2018 election.

Kemp was also a candidate in the governor’s election that year. He claimed, however, that he could fairly manage an election at the same time as was running in it.

And how did he “manage” it? Like this:

Two days before the election, Kemp worked with others to release a statement on the Secretary of State’s website that said in all capital letters: “AFTER FAILED HACKING ATTEMPT, SOS LAUNCHES INVESTIGATION INTO GEORGIA DEMOCRATIC PARTY.”

The statement further claimed to “confirm that the Democratic Party of Georgia is under investigation for possible cyber crimes,” and noted that the FBI and Department of Homeland Security had been alerted.

The DNC never hacked the voter registration system. Instead, a private citizen reported security flaws in the Secretary of State’s website to a DC election lawyer. This report later made its way to the DNC local branch in Georgia. Eventually, news made its way back to Brian Kemp — via the DNC, FBI, and the DC election lawyer. It was this information Kemp spun into a fantastic tale of DNC hackery.

The lawsuit recounts Brian Kemp’s ineffectual run as Secretary of State, an era marked by multiple reports of serious flaws in the voting system he was supposed to be overseeing. Then, as he was running for a new post, he decided to broadcast unsupported claims about Democratic Party interference in the very election he was interfering with. This included Kemp’s bizarre anger over DHS penetration testing — testing he had apparently asked the DHS to perform.

He converted both of his fantasies into last-minute electioneering for his governor run, sending out emails to supporters claiming he had “intercepted” the Democrats’ “fourth quarter Hail Mary pass” and would be holding these “power-hungry radicals” accountable for their “criminal behavior.”

The lawsuit says many people and entities were informed about security flaws in the voting system, but Kemp chose a single target to attack with baseless claims of criminal behavior.

The DNC accuses Kemp of violating federal law by falsely targeting it with these accusations. It alleges this was done in retaliation for its efforts to unseat Kemp and support its own candidates.

Here, Defendant Kemp has shown a pattern of falsely accusing Democratic administrations and Democratic parties of “hacking.” In 2016, he accused President Obama’s Department of Homeland Security of a “large attack on our system.” Unsatisfied with the DHS explanation for why there was no attack, Defendant Kemp asked the incoming Trump administration to investigate further. Later, he conceded that there had never been any hacking.

[…]

Defendants accused the Democratic Party of Georgia even though the Democratic Party of Georgia’s only involvement was to (1) receive information from Richard Wright on a voter security hotline; (2) forward that information to two experts at Georgia Tech; and (3) inform the Secretary of State’s office.

[…]

Defendants conspired to accuse the Democratic Party of Georgia of cyber crimes without any basis.

[…]

Defendants’ choice to maintain the public statements on the Secretary of State website even after they found out that the Democratic Party of Georgia was not the source of the vulnerability information was and is an ongoing substantial step in furtherance of the conspiracy.

Defendants’ choice not to remove the public statements on the Secretary of State website even after they found out that the supposed “intrusion” was the Department of Homeland Security acting at the request of the Secretary of State was and is an ongoing substantial step in furtherance of the conspiracy.

That’s one potential federal law violation. There’s another one listed in the lawsuit. Section 11(b) of the Voting Rights Act forbids anyone from intimidating voters or coercing votes. The DNC alleges Kemp’s actions and statements were meant to intimidate the DNC and divert its resources towards responding to baseless accusations during the final days of the state election.

The DNC isn’t asking for much. The damage request is limited to $20.00. But it does want an injunction in place requiring the removal of Kemp’s disproven accusations from the state’s Secretary of State website.

This lawsuit is one of what will likely be several postscripts appended to the 2020 elections. Claims of hacking, fraud, and other voting related misconduct have been delivered by a number of Republicans over the past several weeks. But baseless claims of election malfeasance aren’t a recent development.

They’ve been a permanent fixture of the Republican party since Trump took office — urged on by a president who lost the popular vote in 2016 but ended up with the most Electoral College votes. Ever since then, the Republican Party has waged war on the democratic process, having realized allowing the voting process to go unfucked could possibly result in fewer Republicans being elected.

Filed Under: brian kemp, elections, georgia, voting, voting machines
Companies: dnc

Court Dismisses Democrats' Nutty Lawsuit Against Russia, Wikileaks And Trump Associates

from the phew dept

A little over a year ago we wrote about a truly ridiculous lawsuit filed by the Democratic National Committee against the country of Russia, Wikileaks, the GRU, Julian Assange, the Donald Trump campaign, and a long list of Donald Trump associates, including Paul Manafort, Roger Stone, Jared Kushner, Donald Trump Jr. and more. As we discussed in great detail, this was a pro se-level lawsuit full of absolutely crazy legal theories that stood no chance in court, ostensibly over the hacking of the DNC’s computers that occurred during the 2016 election. The complaint was mostly a conspiracy theory wrapped in a legal complaint, tossing in absolutely silly CFAA claims, SCA claims, DMCA claims and (because why not?) a RICO claim, despite the fact that it’s never RICO.

We predicted that this lawsuit would go nowhere fast, and separately noted that many of the theories the DNC put into the lawsuit represented a very real threat to basic press freedoms. Thankfully, though not surprisingly, federal Judge John Koeltl, has dismissed the case. The order runs over 80 pages, but the judge does a nice job summarizing the many, many faults of the complaint upfront. Let’s start with suing Russia. That’s not how any of this works.

The primary wrongdoer in this alleged criminal enterprise is undoubtably the Russian Federation, the first named defendant in the case and the entity that surreptitiously and illegally hacked into the computers and thereafter disseminated the results of its theft. But, as explained below, under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq. (“FISA”),the Russian Federation cannot be sued in the courts of the United States for governmental actions, subject to certain limited exceptions not present in this case, just as the United States government generally cannot be sued in courts abroad for its actions. The remedies for hostile actions by foreign governments are state actions, including sanctions imposed by the executive and legislative branches of government.

I mean, this seems like basic lawyering 101. You can’t just randomly sue foreign governments in the US for state actions. How about all those other defendants? Well, they’re not the ones who did anything. And the things they did — publishing or sharing documents — is so obviously protected under the First Amendment:

The DNC seeks to hold the second-level participants in this alleged activity — the Campaign, the Campaign defendants, WikiLeaks, Assange, the Agalarovs, Mifsud, and Stone — liable for dissemination of the stolen materials. But, as also explained below, the First Amendment prevents such liability in the same way it would preclude liability for press outlets that publish materials of public interest despite defects in the way the materials were obtained so long as the disseminator did not participate in any wrongdoing in obtaining the materials in the first place. The plausible allegations against the remaining defendants are insufficient to hold them liable for the illegality that occurred in obtaining the materials from the DNC. Therefore, for the reasons explained below, the defendants’ motion to dismiss the Second Amended Complaint is granted.

The judge did reject a request by the Trump Campaign for Rule 11 sanctions against the DNC’s lawyers, and even if this was obviously a frivolous lawsuit, courts are very, very reluctant to ever issue Rule 11 sanctions unless the activity is incredibly egregious. This dumb lawsuit was just everyday egregious.

The judge here clearly understood all of the myriad problems with the lawsuit, and the long ruling is a masterclass in pointing out how each of the DNC’s theories is crazy. Let’s start with the First Amendment/freedom of the press issues. It seems clear that the court understood how dangerous this kind of precedent would be. The judge cites the key cases on this issue which are pretty damn well established: the NYTimes v. the United States, which decided that it was protected by the 1st Amendment for the Times to publish the Pentagon Papers, and the more recent Bartnicki v. Vopper, which made it clear that even illegally obtained materials can be released by journalists, so long as the journalists did not participate in the illegal activities to obtain the materials. As the court notes:

As Bartnicki makes clear, there is a significant legal distinction between stealing documents and disclosing documents that someone else had stolen previously.

The DNC tried to get around this by playing the “but RICO!” card, and arguing that there was a grand conspiracy at work, that magically meant that the Trump Campaign and all the associates did participate in the “stealing” of documents. The judge points out this is… not a sound legal theory.

However, the DNC has not alleged that any defendant other than the Russian Federation participated in the hack of the computers or theft of the DNC’s documents. The DNC argues that the various meetings and conversations between the defendants in this case and with persons connected to the Russian government during the time that Russian GRU agents were stealing the information show that the defendants conspired with the Russian Federation to steal and disseminate the materials…. That argument is entirely divorced from the facts actually alleged in the Second Amended Complaint.

The judge further points out that just showing certain people met with one another or worked with one another doesn’t automatically establish either a conspiracy or anything suggesting that they participated in the illegal obtaining of the DNC’s content.

For example, the DNC argues in its opposition to the current motions that the conspiracy between the Russian Federation and the other defendants to hack the computers and steal its electronic information began in March 2016…. However, the only events alleged to have taken place in March 2016 are that Manafort was hired as the Campaign’s convention manager, Papadopoulos was hired as a foreign policy advisor, and Papadopoulos met with Mifsud on March 14 and 24. The entirety of the allegations regarding the March meetings between Mifsud and Papadopoulos are that “[o]n March 14, 2016, Mifsud met with Papadopoulos in Italy,” and “[o]n March 24, 2016, Mifsud met again with Papadopoulos, this time bringing along a Russian national who was introduced as a relative of Putin.” … Papadoponlos reported back to the Campaign that “his conversation was to arrange a meeting between us and the Russian leadership to discuss U.S.-Russia ties under President Trump.” These vague references to meetings between Papadopoulos, a foreign policy advisor to the Campaign, and Mifsud, a London-based academic not officially affiliated with the Russian Federation, do not raise a plausible inference that the defendants agreed to participate with the Russian Federation in hacking the computers and stealing its documents…. To the contrary, Mifsud is alleged to have told Papadapoulos about emails harmful to the Hillary Clinton campaign only after the Russian Federation had hacked the DNC and had those emails in its possession.

The section on Wikileaks shows just how awful the DNC’s case really was — as their own complaint undermined their own argument.

The DNC also repeatedly argues in its brief that WikiLeaks participated in the theft of the DNC documents…. But in the Second Amended Complaint the DNC alleges that WikiLeaks first requested stolen DNC materials from Guccifer 2.0 only after the Russian Federation had already stolen them and after Russian agents began disseminating them through Guccifer 2.0…. The Second Amended Complaint does not allege that WikiLeaks agreed to participate in the theft or that it had any advance knowledge that the Russian Federation was planning to hack the DNC.

The court also points out that the infamous “meeting at Trump Tower” that has been subject to much speculation, happened after the DNC hacking had already occurred, meaning that it couldn’t possibly have been held to establish a conspiracy to hack the DNC (and, of course, the DNC has no evidence to suggest, and thus, no allegations, to say that there was any discussion at that meeting of hacking the DNC). In other areas the judge points out that allegations “are even more threadbare.” As we said, this is a conspiracy theory disguised as a legal complaint.

In short, the DNC raises a number of connections and communications between the defendants and with people loosely connected to the Russian Federation, but at no point does the DNC allege any facts in the Second Amended Complaint to show that any of the defendants other than the Russian Federation participated in the theft of the information. Nor does the DNC allege that the defendants ever agreed to help the Russian Federation steal the documents. Indeed, the DNC does not raise a factual allegation that suggests that any of the defendants were even aware that the Russian Federation was planning to hack the DNC’s computers until after it had already done so. At most, the DNC has alleged that after the Russian Federation stole the documents, Mifsud and the Agalarovs told campaign members about the stolen documents (although it is unclear whether the communications were about stolen DNC documents or generally about documents harmful to Hillary Clinton), WikiLeaks requested the stolen documents and published them, and some of the other defendants welcomed the publication of the documents at times helpful to the Campaign.

And thus, the actions of the others in passing around or publishing those documents later is quite clearly protected under the 1st Amendment.

The judge does separately deal with the issue of Wikileaks. This was the one that most concerned press freedom advocates, and the judge clearly understands the issues:

The argument for liability is strongest against WikiLeaks because it is the only defendant other than the Russian Federation that is alleged to have published the stolen information. The DNC alleges that WikiLeaks solicited stolen documents from the GRU and then coordinated with the GRU and the Campaign defendants to publish the stolen documents at times helpful to the Trump Campaign. Like the defendant in Bartnicki, WikiLeaks did not play any role in the theft of the documents and it is undisputed that the stolen materials involve matters of public concern. However, the DNC argues that this case is distinguishable from Bartnicki because WikiLeaks solicited the documents from the GRU knowing that they were stolen and coordinated with the GRU and the Campaign to disseminate the documents at times favorable to the Trump Campaign. The DNC argues that WikiLeaks should be considered an after-the-fact coconspirator for the theft based on its coordination to obtain and distribute the stolen materials.

As an initial matter, it is constitutionally insignificant that WikiLeaks knew the Russian Federation had stolen the documents when it published them. Indeed, in Bartnicki the Supreme Court noted that the radio host either did know, or at least had reason to know, that the communication at issue was unlawfully intercepted….

And, contrary to the argument, it is also irrelevant that WikiLeaks solicited the stolen documents from Russian agents. A person is entitled publish stolen documents that the publisher requested from a source so long as the publisher did not participate in the theft…. Indeed, the DNC acknowledges that this is a common journalistic practice.

The argument that WikiLeaks can be held liable for the theft as an after-the-fact coconspirator of the stolen documents is also unpersuasive. That argument would eviscerate Bartnicki; such a rule would render any journalist who publishes an article based on stolen information a coconspirator in the theft….

WikiLeaks and its amici argue that holding WikiLeaks liable in this situation would also threaten freedom of the press. The DNC responds that this case does not threaten freedom of the press because WikiLeaks did not engage in normal journalistic practices by, for example, “asking foreign intelligence services to steal ‘new material’ from American targets.” … The argument misconstrues its own allegations in the Second Amended Complaint. In the Second Amended Complaint, the DNC states that “WikiLeaks sent GRU operatives using the screenname Guccifer 2.0 a private message, asking the operatives to “[s]end any new material [stolen from the DNC] here for us to review.'” … This was not a solicitation to steal documents but a request for material that had been stolen. Journalists are allowed to request documents that have been stolen and to publish those documents…. Therefore, the DNC cannot hold WikiLeaks or Assange liable for publishing the information that Russian agents stole.

The court then rejects the DNC’s argument that “trade secrets” (by which it meant donor lists) are somehow excluded from Bartnicki, and therefore publishing them is not protected by the 1st Amendment. As the court explains, this is a pretty blatant misreading of Bartnicki, which acknowledged that there could be a different calculus when it involved things like trade secrets — whereas the DNC pretended that Barnicki outright excluded them. Either way, the court says that in this case, the publishing of donor lists is obviously protected by the 1st Amendment:

In this case it is plain that the conclusory allegations that “donor lists” and “fundraising strategies” were among those documents published by WikiLeaks does not provide a basis to overcome the First Amendment. The interest in keeping “donor lists” and “fundraising strategies” secret is dwarfed by the newsworthiness of the documents as whole….

If WikiLeaks could be held liable for publishing documents concerning the political financial and voter-engagement strategies simply because the DNC labels them “secret” and trade secrets, then so could any newspaper or other media outlet. But that would impermissibly elevate a purely private privacy interest to override the First Amendment interest in the publication of matters of the highest public concern. The published internal communications allowed the American electorate to look behind the curtain of one of the two major political parties in the United States during a presidential election. This type of information is plainly of the type entitled to the strongest protection that the First Amendment offers….

And, as basically anyone with a passing familiarity with how RICO works expected, the court also explicitly rejects the whole RICO nonsense:

The allegations provide no basis to infer either that the alleged AIF members formed an ongoing organization or that the defendants formed a coherent entity that was separate and apart from the predicate acts that allegedly comprise the alleged fraudulent scheme….

This is, in part, because the DNC alleges in conclusory fashion that various individuals and entities have committed acts to further the scheme despite not having any apparent connection to most of the other defendants. The DNC asserts only that there were scattered contacts between the alleged AIF members and does not assert any facts suggesting hierarchy or organization. For example, none of the asserted AIF members are alleged to have participated in the theft of the documents with the Russian Federation or to have even been aware that the Russian Federation was planning such a theft. The Russian Federation published at least some of the documents via Guccifer 2.0, and there is no allegation that any of the defendants participated in that publication. WikiLeaks contacted the GRU to obtain the stolen documents, but there is no indication that any of the other asserted AIF members were aware of this contact.

There’s also this:

Moreover, the alleged common goal of the AIF enterprise to get Donald Trump elected is not an unlawful or fraudulent goal.

The final claims in the complaint are dismissed pretty quickly as well. Wiretapping? Wha…? For it to be wiretapping, it has to involve recording something as it happens (“intercepted contemporaneously with transmission”) and that did not happen:

There is no allegation that any of the documents provided to WikiLeaks contained communications that were intercepted contemporaneously with transmission. The documents that the Russian Federation disclosed to WikiLeaks are described as reports and documents rather than items that would suggest electronic communications that were recorded simultaneously with their transmission…. In any event, there is no allegation that WikiLeaks was aware that any documents it published were intercepted contemporaneously with transmission.

The Defend Trade Secrets Act claim flops as well. The earlier discussion about publishing trade secrets being protected by the 1st Amendment mostly covers that, but the claim makes even less sense for the other defendants:

The DNC does not allege that any defendant other than the Russian Federation and WikiLeaks possessed or published its alleged trade secrets. However, the DNC argues that the remaining defendants are still liable under the DCUTSA because they “used” the documents after they had been published by WikiLeaks and the Russian Federation. This argument is untenable — a “trade secret that becomes public knowledge is no longer a trade secret.”… That the defendants might have used documents that had already been published by the Russian Federation and WikiLeaks is not an unlawful or improper use of the documents.

As for the computer hacking claims, again, only the Russians did that, and you can’t bring them into a US court. The DNC tried to argue that there was “aiding and abetting” by the others, but (1) they then “failed to allege facts showing any defendant aided or abetted the hack into the DNC computer systems,” and (2) it doesn’t appear that the Virginia Computer Crimes Act (the local state version of the CFAA) even includes liability for aiding and abetting. But, hey, why would that stop the DNC?

The court doesn’t even seem to bother with the rather insane copyright claim, which was based on DMCA 1201 — the anti-circumvention part of the DMCA, in which the DNC argued that the DMCA 1201 acted as a sort of mini-CFAA, because any activity to get around “technical protection measures” is automatically infringing under 1201. But, that theory is so nuts it looks like the court just skipped right over it.

Again, none of this is surprising, but it’s nice to see a clear and decisive ruling on this — and one hopes the DNC and its lawyers just let this one go rather than trying to appeal (a wish that seems unlikely to be fulfilled). It’s possible this case is more about politics than any legal theory (because there is no reasonable legal theory here), but if so that’s even more abusive of the federal judicial system.

Filed Under: 1st amendment, conspiracy, donald trump, free speech, freedom of the press, hacking, jared kushner, julian assange, paul manafort, rico, russia
Companies: dnc, wikileaks

Democratic National Committee's Lawsuit Against Russians, Wikileaks And Various Trump Associates Full Of Legally Nutty Arguments

from the slow-down-there-dnc dept

This morning I saw a lot of excitement and happiness from folks who greatly dislike President Trump over the fact that the Democratic National Committee had filed a giant lawsuit against Russia, the GRU, Guccifier 2, Wikileaks, Julian Assange, the Trump campaign, Donald Trump Jr., Jared Kushner, Paul Manafort, Roger Stone and a few other names you might recognize if you’ve followed the whole Trump / Russia soap opera over the past year and a half. My first reaction was that this was unlikely to be the kind of thing we’d cover on Techdirt, because it seemed like a typical political thing. But, then I looked at the actual complaint and it’s basically a laundry list of the laws that we regularly talk about (especially about how they’re abused in litigation). Seriously, look at the complaint. There’s a CFAA claim, an SCA claim, a DMCA claim, a “Trade Secrets Act” claim… and everyone’s favorite: a RICO claim.

Most of the time when we see these laws used, they’re indications of pretty weak lawsuits, and going through this one, that definitely seems to be the case here. Indeed, some of the claims made by the DNC here are so outrageous that they would effectively make some fairly basic reporting illegal. One would have hoped that the DNC wouldn’t seek to set a precedent that reporting on leaked documents is against the law — especially given how reliant the DNC now is on leaks being reported on in their effort to bring down the existing president. I’m not going to go through the whole lawsuit, but let’s touch on a few of the more nutty claims here.

The crux of the complaint is that these groups / individuals worked together in a conspiracy to leak DNC emails and documents. And, there’s little doubt at this point that the Russians were behind the hack and leak of the documents, and that Wikileaks published them. Similarly there’s little doubt that the Trump campaign was happy about these things, and that a few Trump-connected people had some contacts with some Russians. Does that add up to a conspiracy? My gut reaction is to always rely on Ken “Popehat” White’s IT’S NOT RICO, DAMMIT line, but I’ll leave that analysis to folks who are more familiar with RICO.

But let’s look at parts we are familiar with, starting with the DMCA claim, since that’s the one that caught my eye first. A DMCA claim? What the hell does copyright have to do with any of this? Well…

Plaintiff’s computer networks and files contained information subject to protection under the copyright laws of the United States, including campaign strategy documents and opposition research that were illegally accessed without authorization by Russia and the GRU.

Access to copyrighted material contained on Plaintiff’s computer networks and email was controlled by technological measures, including measures restricting remote access, firewalls, and measures restricting acess to users with valid credentials and passwords.

In violation of 17 U.S.C. § 1201(a), Russia, the GRU, and GRU Operative #1 circumvented these technological protection measures by stealing credentials from authorized users, condcting a “password dump” to unlawfully obtain passwords to the system controlling access to the DNC’s domain, and installing malware on Plaintiff’s computer systems.

Holy shit. This is the DNC trying to use DMCA 1201 as a mini-CFAA. They’re not supposed to do that. 1201 is the anti-circumvention part of the DMCA and is supposed to be about stopping people from hacking around DRM to free copyright-covered material. Of course, 1201 has been used in all sorts of other ways — like trying to stop the sale of printer cartridges and garage door openers — but this seems like a real stretch. Russia hacking into the DNC had literally nothing to do with copyright or DRM. Squeezing a copyright claim in here is just silly and could set an awful precedent about using 1201 as an alternate CFAA (we’ll get to the CFAA claims in a moment). If this holds, nearly any computer break-in to copy content would also lead to DMCA claims. That’s just silly.

Onto the CFAA part. As we’ve noted over the years, the Computer Fraud and Abuse Act is quite frequently abused. Written in response to the movie War Games to target “hacking,” the law has been used for basically any “this person did something we dislike on a computer” type issues. It’s been dubbed “the law that sticks” because in absence of any other claims that one always sticks because of how broad it is.

At least this case does involve actual hacking. I mean, someone hacked into the DNC’s network, so it actually feels (amazingly) that this may be one case where the CFAA claims are legit. Those claims are just targeting the Russians, who were the only ones who actually hacked the DNC. So, I’m actually fine with those claims. Other than the fact that they’re useless. It’s not like the Russian Federation or the GRU is going to show up in court to defend this. And they’re certainly not going to agree to discovery. I doubt they’ll acknowledge the lawsuit at all, frankly. So… reasonable claims, impossible target.

Then there’s the Stored Communications Act (SCA), which is a part of ECPA, the Electronic Communications Privacy Act, which we’ve written about a ton and it does have lots of its own problems. These claims are also just against Russia, the GRU and Guccifer 2.0, and like the DMCA claims appear to be highly repetitive with the CFAA claims. Instead of just unauthorized access, it’s now unauthorized access… to communications.

It’s then when we get into the trade secrets part where things get… much more problematic. These claims are brought against not just the Russians, but also Wikileaks and Julian Assange. Even if you absolutely hate and / or distrust Assange, these claims are incredibly problematic against Wikileaks.

Defendants Russia, the GRU, GRU Operative #1, WikiLeaks, and Assange disclosed Plaintiff’s trade secrets without consent, on multiple dates, discussed herein, knowing or having reason to know that trade secrets were acquired by improper means.

If that violates the law, then the law is unconstitutional. The press regularly publishes trade secrets that may have been acquired by improper means by others and handed to the press (as is the case with this content being handed to Wikileaks). Saying that merely disclosing the information is a violation of the law raises serious First Amendment issues for the press.

I mean, what’s to stop President Trump from using the very same argument against the press for revealing, say, his tax returns? Or reports about business deals gone bad, or the details of secretive contracts? These could all be considered “trade secrets” and if the press can’t publish them that would be a huge, huge problem.

In a later claim (under DC’s specific trade secrets laws), the claims are extended to all defendants, which again raises serious First Amendment issues. Donald Trump Jr. may be a jerk, but it’s not a violation of trade secrets if someone handed him secret DNC docs and he tweeted them or emailed them around.

There are also claims under Virginia’s version of the CFAA. The claims against the Russians may make sense, but the complaint also makes claims against everyone else by claiming they “knowingly aided, abetted, encouraged, induced, instigated, contributed to and assisted Russia.” Those seem like fairly extreme claims for many of the defendants, and again feel like the DNC very, very broadly interpreting a law to go way beyond what it should cover.

As noted above, there are some potentially legit claims in here around Russia hacking into the DNC’s network (though, again, it’s a useless defendant). But some of these other claims seem like incredible stretches, twisting laws like the DMCA for ridiculous purposes. And the trade secret claims against the non-Russians is highly suspect and almost certainly not a reasonable interpretation of the law under the First Amendment.

Filed Under: cfaa, conspiracy, dmca, dnc, donald trump junior, ecpa, gru, hack, hacking, jared kushner, julian assange, paul manafot, rico, roger stone, russia, sca, trade secrets
Companies: dnc, wikileaks

Democratic National Committee Punishes Bernie Sanders For Their Own Technical Mistake; Sanders Threatens To Sues

from the turmoil dept

There’s a bizarre story about potential computer hackery this morning, involving the Democratic National Committee and the campaigns of Bernie Sanders and Hillary Clinton — the two front runners on the Democratic side. Apparently, the DNC was doing some sort of upgrade to its computer systems, and in the process, there was a glitch that very briefly allowed a Sanders staffer, “data director” Josh Uretsky, to access confidential data from Hillary Clinton’s campaign — specifically confidential voter information gathered by Clinton’s campaign. Uretsky realized he was able to access the data and did so — and has apparently since been “fired.” In response, the DNC has completely cut off all access to its systems to the Sanders’ campaign, saying it won’t allow the campaign back in “until it provides an explanation as well as assurances that all Clinton data has been destroyed.”

And, now the Sanders campaign is threatening to sue the party, claiming that this move could undermine his entire political campaign.

Yes, accessing a competitor’s data seems questionable, but again remember that the mistake here appears to be because of the DNC itself — or, rather, its computer system vendor NGP VAN. If there’s a problem, the DNC should take it up with NGP VAN who fucked up and made the data available across campaigns. That’s a pretty big mistake, given the stakes. But to blame the Sanders campaign seems pretty questionable. Yet, the DNC apparently has decided to go full bore against the Sanders campaign instead of admitting to its own error:

DNC chair Debbie Wasserman Schultz weighed in with a statement of her own.

“Once the DNC became aware that the Sanders campaign had inappropriately and systematically accessed Clinton campaign data, and in doing so violated the agreement that all the presidential campaigns have signed with the DNC, as the agreement provides, we directed NGP VAN to suspend the Sanders campaign’s access to the system until the DNC is provided with a full accounting of whether or not this information was used and the way in which it was disposed,” she said.

In a separate interview, Wasserman Schultz further attacked the Sanders campaign:

?The Sanders campaign doesn?t have anything other than bluster at the moment that they can put out there,? she told CNN on Friday. ?It?s like if you found the front door of a house unlocked and someone decided to go into the house and take things that didn?t belong to them.?

To some extent, this sounds like the ridiculous legal fights over the CFAA, over what is and what is not “exceeds authorized access” (just wait until the DNC files CFAA claims against the Sanders campaign…). But separate from that, it really looks like the DNC is not just playing favorites with the Clinton campaign here, but so actively trying to blame its own technical failures on the Sanders campaign as to make itself look ridiculous.

Update: Well, that didn’t take long. The Sanders campaign has sued the DNC alleging breach of contract (Sanders and the DNC have a contract allowing the campaign access to the system) as well as negligence for letting NGP VAN screw things up so badly.

Filed Under: access, bernie sanders, campaigns, cfaa, debbie wasserman schultz, hillary clinton, voter info
Companies: democratic national committee, dnc