jared kushner – Techdirt (original) (raw)

Political Fiction vs. Reality: Twitter’s Alleged Help For Dems vs. Rupert Murdoch’s Real Help For Trump

from the every-accusation-a-confession dept

I know, I know, there are no room for facts in the modern GOP, just feelings. But, still, it’s kind of remarkable just how much they seem committed to the bit that Twitter was actively trying to suppress Republicans to help Joe Biden. There remains zero proof of this. Zero. Over the course of the various “Twitter Files” all we’ve seen is Twitter literally pushing back on anything that suggests political bias, and instead trying to review things based on whether or not they legitimately broke the rules.

But, still, Republicans are insisting that Twitter unfairly benefited Democrats, and they already held a ridiculous hearing on it (with more on the way!) that highlighted (repeatedly) that Twitter did not, in fact, try to help Democrats, but rather that they bent over backwards to give Republicans extra chances after they broke the rules, even when the Trump White House demanded Twitter block his critics.

During that hearing, Rep. Jamie Raskin highlighted something I’ve been saying for a while: that if Democrats had held the same kind of hearing regarding Fox News and its editorial choices, many people (and not just Republicans) would rightly be up in arms about the 1st Amendment implications of demanding a media company explain its editorial choices.

Separately (and this will become important in a moment), in 2021, the Federal Election Commission conducted an investigation to see if Twitter’s handling of the Hunter Biden laptop story represented an illegal “in-kind contribution” to the Biden campaign. The FEC concluded that here was no evidence, and specifically that there was no evidence of Twitter working with the Biden campaign:

As discussed below, Twitter has credibly explained that it acted with a commercial motivation in response to the New York Post articles rather than with an electoral purpose. With respect to its actions concerning Trump’s tweets, there is no evidence that Twitter coordinated its actions with the Biden Committee, and as such, the actions did not constitute contributions. Finally, the remaining allegations that Twitter limited the visibility of Republican users, suppressed distribution of an interview, and limited coverage of election lawsuits are vague, speculative, and unsupported by the available information. Therefore, the Commission finds no reason to believe that Twitter violated 52 U.S.C. § 30118(a) and 11 C.F.R. § 114.2(b) by making prohibited in-kind corporate contributions; finds no reason to believe that Jack Dorsey, Twitter’s CEO, and Brandon Borrman, Twitter’s Vice President, Global Communications, violated 52 U.S.C. § 30118(a) and 11 C.F.R. § 114.2(e) by consenting to prohibited corporate contributions; and finds no reason to believe that the Biden Committee knowingly accepted or received and failed to report such contributions in violation of 52 U.S.C. §§ 30104(b)(3)(A), 30118(a) and 11 C.F.R. §§ 104.3(a), 114.2(d).

I bet you can guess where this is going, right?

Last week in the ongoing lawsuit from Dominion Voting Systems against Fox News, among many other things that were in Dominion’s latest filing was this fascinating tidbit.

During Trump’s campaign, Rupert provided Trump’s son-in-law and senior advisor, Jared Kushner, with Fox confidential information about Biden’s ads, along with debate strategy. Ex.600, R.Murdoch 210:6-9; 213:17-20; Ex.603 (providing Kushner a preview of Biden’s ads before they were public)

In other words, for all the talk of Twitter supposedly helping the Biden campaign, Fox News, via the chairman of its parent company, Rupert Murdoch, was literally taking proprietary information regarding the Biden campaign, which it only obtained because of its position as a news channel on which the campaign was advertising, and feeding it directly to Trump’s campaign via one of Trump’s most trusted advisors.

It sure looks like Fox actually was potentially engaged in providing an illegal in-kind contribution to the Trump campaign. I’m assuming, though, that the House Judiciary Committee won’t be hosting a long series of day-long hearings about this?

This pattern is getting frustrating. Each and every time we see Republicans making nonsense, unsubstantiated claims about what companies are doing, it turns out it’s because it’s exactly what the GOP itself is doing. Each accusation is more of a confession, both about what levels they’ll stoop to, but also the inability to comprehend that the other side isn’t so lacking in ethics, and wouldn’t stoop to the same level.

Filed Under: bias, donald trump, favoritism, fec, gop, in-kind contribution, jared kushner, rupert murdoch, twitter files
Companies: dominion, fox news, news corp., twitter

Ivanka Trump, Jared Kushner Threaten Defamation Suit Over Lincoln Project's Non-Defamatory Billboards

from the Trump,-Kushner:-give-this-entity-we-dislike-more-attention-please,-fellow-Americ dept

Donald Trump’s offspring are as thin-skinned as the President himself. And, like him, they apparently have access to the worst legal counsel money can buy. First Daughter Ivanka Trump and her husband, Jared Kushner, apparently can’t handle being criticized for their involvement in the mishandling of the COVID-19 pandemic.

The Lincoln Project — formed by Republicans who’ve distanced themselves from Trump and the current Republican party — has been routinely and harshly critical of Trump and his presidency. Recently, the group purchased billboards in Time Square that feature Ivanka Trump gesturing towards COVID-19 death counts in the US and New York State, along with a quote from Jared Kushner — the head of Trump’s business-facing COVID-19 response task force — stating that anything New Yorkers suffer is their own problem.

Here’s a photo of the billboard as posted by the Lincoln Project’s Twitter account:

The hand gesture appears to be an approximation of the one used by Ivanka Trump when she tweeted a plug for Goya Beans earlier this year.

The Kushner quote comes from a Vanity Fair article published in September. It was attributed to him by an attendee of one of Kusher’s COVID task force meetings — ones in which he pushed the idea the “free market” would control the spread of the virus.

The same attendee explained that although he believed in open markets, he feared that the system was breaking. As evidence, he pointed to a CNN report about New York governor Andrew Cuomo and his desperate call for supplies.

“That’s the CNN bullshit,” Kushner snapped. “They lie.”

_According to another attendee, Kushner then began to rail against the governor: “Cuomo didn’t pound the phones hard enough to get PPE for his state…. His people are going to suffer and that’s their problem._”

There’s the factual background. Here’s the response from the couple’s lawyer, Marc Kasowitz, who seemingly has no idea how defamation law works.

We represent Mr. Jared Kushner and Ms. Ivanka Trump. I am writing concerning the false, malicious and defamatory ads that the Lincoln Project is displaying on billboards in Times Square. Those ads show Ms. Trump smiling and gesturing toward a death count of Americans and New Yorkers, and attribute to Mr. Kushner the statement that “[New Yorkers] are going to suffer and that’s their problem” (alteration in the original), with body bags underneath.

Of course, Mr. Kushner never made any such statement, Ms. Trump never made any such gesture, and the Lincoln Project’s representations that they did are an outrageous and shameful libel. If these billboard ads are not immediately removed, we will sue you for what will doubtless be enormous compensatory and punitive damages.

LOL. First off, Ivanka did make “such gesture,” even if it was to cradle an innocuous can of beans rather than proudly present the COVID death toll. Second, whether or not it’s ever proven Kushner made this statement, the Lincoln Project reasonably relied on reporting indicating he did. There’s nothing false, malicious, or defamatory about the quote posted on the billboard.

Finally, I have no doubt that Kasowitz is capable of writing a complaint demanding “enormous damages.” But writing a complaint is not the same thing as winning a lawsuit. And it’s not even in the same area code, nevermind ballpark, of collecting any damages of any amount.

The Lincoln Project has responded appropriately to this idiotic attempt to silence it with legal threats.

The level of indignant outrage Jared Kushner and Ivanka Trump have shown towards the Lincoln Project for exposing their indifference for the more than 223,000 people who have lost their lives due to their reckless mismanagement of COVID-19 is comical. While we truly enjoy living rent free in their heads, their empty threats will not be taken more seriously than we take Ivanka and Jared.

[…]

Jared and Ivanka have always been entitled, out-of-touch bullies who have never given the slightest indication they have any regard for the American people. We plan on showing them the same level of respect.

The billboards will stay up.

The Lincoln Project issued a longer “go fuck yourselves” via their legal representation a few hours later. It’s just as caustic as its first riposte.

You boldy predict that the result of your lawsuit “will doubtless be enormous compensatory and punitive damages.”

Please peddle your scare tactics elsewhere. The Lincoln Project will not be intimidated by such empty bluster.

[…]

Contrary to your claim that “Mr. Kushner never made any such statement,” Vanity Fair reported in a widely circulated article that Mr. Kushner did indeed say that New Yorkers “are going to suffer and that’s their problem” during the time that he was entrusted to lead our nation’s COVID-19 response. The Lincoln Project explicitly cited Vanity Fair as the source for Mr. Kushner’s featured statement. Please contact us again if at some point you somehow succeed in convincing Vanity Fair to retract its article, but I trust this supplemental explanation settles the matter for now as to Mr. Kushner’s remark.

[…]

The Lincoln Project would welcome the opportunity to further establish the truthfulness of its Time Square billboards through litigation and discovery, so sue if you must. In the meantime, may I suggest that if Mr. Kushner and Ms. Trump are genuinely concerned about salvaging their reputations, they would do well to stop suppressing truthful criticism and instead turn their attention to the COVID-19 crisis that is still unfolding under their inept watch. These billboards are not causing Mr. Kushner and Ms. Trump’s standing with the public to plummet. Their incompetence is.

I’d like to say I’d be very surprised if this legal threat actually becomes a lawsuit. But it’s been four extremely long years and it feels like nothing Trump or his offspring do is still capable of surprising me. If the power couple wants to pay Marc Kasowitz an enormous amount of money to waste everyone’s time, that’s up to them. But the Lincoln Project shouldn’t be forced to waste its own time and money just because Ivanka and Jared feel like wasting theirs. So, for that reason, I hope this is the last we hear from Jared and Ivanka about the Times Square billboards.

Filed Under: 1st amendment, billboards, defamation, free speech, ivanka trump, jared kushner, lincoln project, marc kasowitz, slapp, streisand effect

Kushner's COVID Task Force Is Looking To Expand The Government's Surveillance Of Private Healthcare Companies

from the move-fast-and-break-privacy dept

Jared Kushner’s shadowy coronavirus task force is still at work behind the scenes, bringing this country back to health by leveraging Kushner’s innate ability to marry into the right family. Very little is known about it and very little will be known about thanks to the task force’s decision to run communications through private email accounts.

Kushner’s focus appears to be the private sector — the same area his father-in-law appears to be most worried about. The curve has yet to flatten, but Trump and Kushner want to make sure companies remain healthy even if their employees aren’t.

It appears Kushner is now branching out into the public sector. The private sector will be involved, but as the target for a new strain of surveillance, as Adam Cancryn reports for Politico.

White House senior adviser Jared Kushner’s task force has reached out to a range of health technology companies about creating a national coronavirus surveillance system to give the government a near real-time view of where patients are seeking treatment and for what, and whether hospitals can accommodate them, according to four people with knowledge of the discussions.

This information will be used to determine where resources might need to be allocated. It will also be used to make judgment calls for social distancing and “stay at home” orders, with an eye on getting companies back up and running as quickly as possible.

What the task force is pushing for is relaxed rules on data sharing by private health companies.

[T]he Trump administration has sought to ease data-sharing rules and assure health data companies they won’t be penalized for sharing information with state and federal officials — a move driven in part by Kushner’s push to assemble the national network, according to an individual with knowledge of the decision.

To do this, the administration is likely to lean on its favorite weapon against privacy: national security. There are exceptions built into health privacy laws that make it easier for the federal government to demand access to this data. If the task force can sell the pandemic as a national security crisis, the government will be able to peer into multiple databases and do whatever it wants with that data. And it will be able to do so for as long as it wants, so long as it can claim the threat is still present.

The thing is there’s no need to reinvent the surveillance wheel… unless the additional layer of surveillance is actually what the administration wants, rather than a targeted response to health care needs.

Some public health experts, meanwhile, suggested that the administration might instead build out and reorient an existing surveillance system housed within the Centers for Disease Control and Prevention that aided the response to prior epidemics. The system, called the National Syndromic Surveillance Program, is a voluntary collaboration between the CDC and various state and local health departments that draws data from more than 4,000 health care facilities.

While there may be some short-terms gains from adding another level of health care surveillance, the inherent problem is rolling back that surveillance once it’s no longer needed. Americans may be more agreeable to additional government snooping during a short-term crisis, but they’re less willing to look the other way when the threat to the nation has passed. The government, however, generally doesn’t care what the people want. If it has found some self-serving uses for this increased access, it will keep the access and say enough stuff about national security threats to defeat attempts to scale things back to their pre-COVID levels. We saw this with the 9/11 attacks. And we may see it again with this unprecedented pandemic.

Filed Under: covid-19, healthcare, jared kushner, surveillance

Jared Kushner's Coronavirus Task Force Is Using Private Email Accounts To Conduct Official Business

from the only-illegal-if-Democrats-do-it dept

If you’re a public official, your communications and documents are supposed to be accessible by the public. That’s not me being an absolutist on open government. That’s the law. And yet, here we are, watching an administration that rode into office on chants of “Lock her up!” once again conducting government business off the grid, using the same sort of private email accounts Trump repeatedly declared should have landed Hillary Clinton in the slammer.

Citizens for Responsibility and Ethics in Washington (CREW) has taken note of the latest violation of multiple laws by the Trump Administration and wants to know what the White House is going to do about it.

Jared Kushner’s shadow coronavirus task force appears to be violating both the Presidential Records Act (PRA) and Federal Advisory Committee Act (FACA) by using private email accounts with no assurance their communications are being preserved and by meeting in secret, according to a letter sent today by Citizens for Responsibility and Ethics in Washington (CREW). The failure of the White House to comply with any of the PRA and FACA requirements leaves the public in the dark about the work the shadow task force has done and the influence of private industries on the administration’s response to the coronavirus pandemic.

We the taxpaying people deserve to know what, if anything, Jared Kushner is doing to fight the spread of the virus. Kushner was put in charge of handling the business side of the pandemic response based on his impressive pandemic-fighting resume, which includes marrying Trump’s daughter and spending several years as a slumlord. Sure, this isn’t the first time important government work has been handed over to underqualified sycophants/relatives, but this time there’s actually life and death on the line.

What’s being done with our tax dollars by Kushner’s task force is being hidden from view through its members’ use of private email accounts. We all know history is written by the winners, but history can also remain unwritten by losers whose sole contribution to the effort appears to be making businesses feel better about endangering the lives of their employees and customers. Stashing away official communications on private email servers cuts the public out of the loop.

History is being unwritten as we speak. Here’s a senior White House official’s brutal summary of Kushner’s task force:

We don’t know who these people are. Who is this? We’re all getting these emails.

At least they’re getting the emails. It’s still unclear whether any of us in the general public will. That’s what CREW is trying to find out. Its letter to the White House’s legal rep, Pat Cipollone, reminds the lawyer of the law and the obligation the White House has to the American people.

We recognize the extraordinary emergency our nation faces and the need for the federal government to act quickly and decisively. At the same time, however, the need for transparency could not be greater. Americans need to know that our government is acting in our best interests; they need the kind of reassurance that full transparency in how and what the White House is doing brings. Of equal importance, we must have access in the future to a full record of how the President and his staff handled this crisis to learn from any mistakes made and improve on how we address future pandemics. Now, more than ever, we must be vigilant in complying with laws like the PRA and the FACA that were enacted to protect our nation’s interest in transparency and a full historic record. We therefore respectfully request that you ensure that the shadow task force complies immediately and fully with its statutory requirements under the PRA and FACA.

This is CREW basically telling the White House Counsel, “Hey, we don’t want to tell you how to do your job but, you know, do your damn job!” This would have been inexcusable even if the Trump administration hadn’t used “but her emails” as a platform plank. It’s unforgivable when it’s these hypocrites standing knee deep in a swamp they never intended to drain, running a behind-the-scenes corporate welfare effort under the guise of keeping the nation’s citizens alive and healthy.

Filed Under: coronavirus taskforce, email, jared kushner, pandemic response, secrecy, transparency

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

Well-Known Email Prankster Ends Up With Sensitive Document From Jared Kushner's Lawyer

from the sold-out-by-autocomplete? dept

Careless handling of sensitive emails isn’t just a problem for Trump’s top advisor, Jared Kushner. Having rolled into office on the echoing cries of “Lock her up!” Trump’s team nonetheless continued to use private email accounts for official correspondence. Kusher did this twice: using both a Republican National Committee account as well as another personal email address.

It’s a security issue as well as a transparency issue. Personal email accounts — while convenient (and conveniently opaque) — are little more than attack vectors for cybercriminals and state-sponsored hacking. Making this security problem worse are Trump team legal reps, who can’t seem to stop communicating with staffer-spoofing accounts.

A prankster known only by his Twitter handle (SINON_REBORN) has a few admin team trophies on his wall already. The prankster has already duped White House Special Counsel Ty Cobb with an impersonation of White House Media Director Dan Scavino. That followed successful pranking of Breitbart editors and White House Homeland Security Advisor Tom Bossett.

The latest victim is Jared Kushner’s lawyer, Abbe Lowell. He’s been stung twice, as the Verge’s Sarah Jeong reports.

This is the second time that Abbe Lowell, a partner at Norton Rose Fulbright LLP, who began representing Kushner in June, has fallen for a prankster who calls himself SINON_REBORN (a reference to the original legend of the Trojan Horse). Two days ago he corresponded with kushner.jared@mail.com, as the fake Jared Kushner asked for legal advice on whether to remove correspondence on his private email account that featured “adult content.” Fortunately for Lowell, the conversation didn’t go far, ending with, “Don’t delete. Don’t send to anyone. Let’s chat in a bit.”

This email exchange likely gave Kushner’s lawyer a few mental images he wished he’d never had. A more descriptive recounting of the email exchange at Business Insider shows Abbe Lowell tangling with possibly unfamiliar fetishes.

“I need to see I think all emails between you and WH (just for me and us),” Lowell wrote. “We need to send any officials emails to your WH account. Not stuff like you asked about. None of those are going anywhere.”

“But we can bury it?” the prankster responded. “I’m so embarrassed. It’s fairly specialist stuff, half naked women on a trampoline, standing on legoscenes, the tag for the movie was #standingOnTheLittlePeople :(“

That Lowell believed this was from his client raises questions about the frequency of emojis in Kushner’s communications. But this exchange wasn’t the end of it. The next email the prankster received from Kushner’s lawyer was unsolicited, but it contained a sensitive document.

We don’t know exactly what happened, but the most likely scenario is that Lowell’s mail client autocompleted to the fake Kushner email address, landing a sensitive letter right in the prankster’s inbox. SINON_REBORN then reposted the letter on Twitter.

The document is a committee-eyes-only letter from the Senate Intelligence Committee, ordering him to preserve emails from his personal account possibly related to the ongoing Russian election interference investigation. Presumably these emails wouldn’t include half-naked trampoline Lego porn, but Lowell’s response to take the discussion offline suggests there are still several ongoing discussions the Intelligence Committee won’t be able to access.

Is this administration’s operational security worse than the last one’s? There’s not enough data available to tell. But SINON-REBORN’s pranks were already well-known before this latest administration gaffe, suggesting a lack of detail orientation by admin members and their legal representation.

Filed Under: abbe lowell, email, jared kushner, prank

NSA Warned Trump Staffers Against Personal Email/Device Use; Were Ignored

from the biggest-phish dept

Blatant hypocrisy aside, the Trump Administration’s use of personal email accounts isn’t just a low-flying middle finger to public records laws. It’s also a stupidly insecure method for handling sensitive communications.

Senior adviser Jared Kushner continued to use his personal email account — albeit in a limited fashion — after taking his official position. He did this despite being warned by the nation’s professional spooks that doing so was a really bad idea. Josh Meyer reports for Politico:

The National Security Agency warned senior White House officials in classified briefings that improper use of personal cellphones and email could make them vulnerable to espionage by Russia, China, Iran and other adversaries, according to officials familiar with the briefings.

The briefings came soon after President Donald Trump was sworn into office on Jan. 20, and before some top aides, including senior adviser Jared Kushner, used their personal email and phones to conduct official White House business, as disclosed by POLITICO this week.

As noted, the NSA also cautioned against the continued use of personal devices — something that makes every admin official who still insists on using their own laptops and phones attack vectors for cybercriminals and state-sponsored attacks from unfriendly governments.

But whatever, it’s just the nation’s top intelligence experts talking. Use of personal devices and email accounts continued, despite admin staff being told to assume these were already compromised. At this point — more than six months after that cautionary meeting — it’s likely bad guys are standing in line to access cycles on admin accounts and devices.

As Meyer notes, this isn’t necessarily just a Trump administration issue. It’s something that happens with every incoming president and their crew. No one wants to give up devices and email accounts and not many of them can be immediately convinced about the level of risk.

But the point remains: when the NSA explains what could possibly happen to insecure devices and accounts, its information is coming from a place of deep personal experience (as it were):

A second former U.S. intelligence official said that the NSA briefers understand how insidious the cyberespionage campaigns can be because they conduct similar operations against others.

So, it’s not the only administration to play it fast and loose for the first several post-inauguration months. But it’s the one that will (and should) take the most heat for it. For one, evidence is being amassed showing Russian interference and influence on the election run, if not on the administration itself. For another, it’s an administration that found its way into office using Hillary Clinton’s personal email server use as a springboard. The other problem is the Trump Team has decided to throw its energy into shutting down internal leaks rather than addressing its own security holes, which means info is probably being exfiltrated to state actors with something far more nefarious in mind than leaking docs to journalists.

Filed Under: jared kushner, nsa, security

Members Of Trump's Admin Team Using Private Email Accounts Because Of Course They Are

from the winning-streak-continues dept

Making American Political Hypocrisy Great Again:

President Trump’s son-in-law and senior adviser Jared Kushner has used a private email account to conduct and discuss official White House business dozens of times, his lawyer confirmed Sunday.

Kushner used the private account through his first nine months in government service, even as the president continued to criticize his opponent in the 2016 presidential election, Democrat Hillary Clinton, for her use of a private email account for government business.

And, because once is never enough:

Ivanka Trump used a personal email account to communicate with a member of President Trump’s administration, a watchdog group said Monday.

American Oversight obtained documents through the Freedom of Information Act (FOIA) that show Ivanka Trump, a senior White House adviser to her father, used a personal email account to contact Small Business Administration Administrator Linda McMahon in February.

It’s not as though anyone isn’t aware of their responsibility to use official government email accounts for official government business. There’s a duty to preserve records that goes hand-in-hand with FOIA law. Those who choose to do business this way are either lazy or devious. And it doesn’t necessarily have to be one or the other.

At this point, the criticisms that paved the way to Trump’s win can almost all be levied against the new administration. All we’re really waiting for is someone to show up with a birth certificate showing Donald Trump isn’t a natural-born US citizen.

Clinton’s excuse for her continuous use of a private email account was “convenience.” Guess what Kushner’s is:

Once in the White House, Kushner used his private account for convenience from time to time — especially when he was traveling or using a personal laptop, according to two people familiar with his practice.

As innocuous as the use appears to be — at least according to obtained documents and unidentified sources’ statements — the point is people in government positions know better than to continue using private email accounts for government business. There’s no excuse at this point — not with more than 25 years of mainstream email use and a half-century of federal public records law.

That officials continue to do this highlights a flaw in public records laws: the fact that they’re written by people with the most interest in keeping some communications secret. Private email accounts are used because there’s a good likelihood courts won’t force every email to be turned over in the event of a records request lawsuit. Even better, since the chance of an actual lawsuit being filed is low enough, many public figures feel these dice are safe to roll.

This isn’t solely a Trump Administration problem, but it’s definitely a case of double standards. We expect those from our politicians, sadly. But we don’t expect them on the level we’ve seen over the past several months, where political opponents are savaged by administration officials (including the president) for behavior Trump’s own team engages in.

Filed Under: convenience, email, foia, hillary clinton, ivanka trump, jared kushner, private email, transparency