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Nevada Is In Court This Morning Looking To Get A Temporary Restraining Order Blocking Meta From Using End-To-End Encryption

from the protect-encryption-now dept

There have been plenty of silly lawsuits against tech companies over the last few years, but a new one from Nevada against Meta may be the most crazy — and most dangerous — that we’ve seen so far. While heavily redacted, the basics fit the pattern of all of these lawsuits. Vague claims of harms to children from social media, with lots of vague handwaving and conclusory statements with no basis in insisting that certain harms are directly traceable back to choices Meta made (despite a near total lack of evidence to support those claims).

But, rather than go through the many, many, many problems of the lawsuit (you can read it yourself at the link above or embedded below), let’s jump ahead to a hearing that is happening today. Nevada has asked the court to issue a temporary restraining order, blocking Meta from using end-to-end encryption on messages, claiming that such encryption is harmful to children.

That sounds hyperbolic, but it’s exactly what’s happening:

With this Motion, the State seeks to enjoin Meta from using end-to-end encryption (also called “E2EE”) on Young Users’ Messenger communications within the State of Nevada. 1 This conduct—which renders it impossible for anyone other than a private message’s sender and recipient to know what information the message contains—serves as an essential tool of child predators and drastically impedes law enforcement efforts to protect children from heinous online crimes, including human trafficking, predation, and other forms of dangerous exploitation. Under such circumstances, the Nevada Supreme Court makes clear that to obtain the injunctive relief sought by this Motion, the State need only show “a reasonable likelihood that the statute was violated and that the statute specifically allows injunctive relief.” State ex rel. Off. of Att’y Gen., Bureau of Consumer Prot. v. NOS Commc’ns, Inc., 120 Nev. 65, 69, 84 P.3d 1052, 1055 (2004) (emphasis added). The State’s Complaint is replete with indisputable factual allegations detailing this harm and explaining—with specificity—how Meta’s conduct in this matter violates the Nevada Unfair and Deceptive Trade Practices Act, N.R.S. §§ 598.0903 through 598.0999 (“NDTPA”). And, because the NDTPA expressly authorizes the Attorney General to seek, inter alia, injunctive relief, the State’s Motion should be granted.

It’s no secret that lazy cops like the FBI’s Chris Wray (and before him, James Comey) have always hated encryption and wanted it banned for making it just slightly more difficult to read everyone’s messages, but at least they spoke mostly about just requiring magic backdoors that would allow encryption to work for normal people, but have it break when the cops came asking (this is not a thing, of course, as it would break for everyone if you did that).

Here, the state of Nevada is literally just saying “fuck it, ban all encryption, because it might make it harder for us to spy on people.”

The TRO request is full of fearmongering language. I mean:

And, as of December 2023, Meta reconfigured Messenger to make E2EE—child predators’ main preferred feature—the default for all communications.

The TRO request also more or less admits that Nevada cops are too fucking lazy to go through basic due process, and the fact that the 4th Amendment, combined with encryption, means they have to take an extra step to spy on people is simply a bridge too far:

As set forth in the Declaration Anthony Gonzales, the use of end-to-end encryption in Messenger makes it impossible to obtain the content of a suspect’s (or defendant’s) messages via search warrant served on Meta. See Ex. 2 (Gonzales Decl.) at ¶¶ 9-16. Instead, investigators are only able to obtain “information provided [that] has been limited to general account information about a given suspect and/or metadata and/or log information about the Messenger communications of that suspect.” Id. at ¶ 14. Once again, this is the equivalent of trying to divine the substance of a letter between two parties by only using the visible information on the outside of a sealed envelope.

Instead, the State is forced to try to obtain the device that the suspect used to send communications via Messenger—which itself requires separate legal process—and then attempt to forensically extract the data using sophisticated software. See Ex. 1 (Defonseka Decl.) at ¶¶ 5- 8. Even this time-consuming technique has its limits. For example, it is not possible to obtain the critical evidence if the device is “locked,” or if the suspect has deleted data prior to relinquishing his phone. Id. at ¶ 8; see also Ex. 2 (Gonzales Decl.) at ¶ 19 (describing commonplace “destruction of the evidence sought by investigators” when trying to acquire Messenger communications).

Just because you’re a cop does not mean you automatically get access to all communications.

As for the actual legal issues at play, the state claims that Meta using encryption to protect everyone is a “deceptive trade practice.” I shit you not. Apparently Nevada has a newish state law (from 2022) that makes it an additional crime to engage in “unlawful use of encryption.” And the state’s argument is that because Meta has turned on encryption for messages, and some people may use that to commit crimes, then Meta has engaged in a deceptive trade practice in enabling the unlawful use of encryption. Really.

As a threshold matter, the State alleges that Meta “willfully committed . . . deceptive trade practices by violating one or more laws relating to the sale or lease of goods or services” in violation of NRS § 598.0923(1)(c). Compl. ¶ 473. Nevada law states that “[a] person shall not willfully use or attempt to use encryption, directly or indirectly, to: (a) Commit, facilitate, further or promote any criminal offense; (b) Aid, assist or encourage another person to commit any criminal offense; (c) Conceal the commission of any criminal offense; (d) Conceal or protect the identity of a person who has committed any criminal offense; or (e) Delay, hinder or obstruct the administration of the law.”…. This amounts to both direct and indirect aiding and abetting of child predators, via the use of E2EE, in violation of NRS § 205.486(1)(a)-(d). And, as demonstrated in the Gonzales Declaration, Meta knows that E2EE drastically limits the ability of law enforcement to obtain critical evidence in their investigations—namely, the substance of a suspect’s Messenger communications—which is in violation of NRS § 205.486(1)(e).

Furthermore, Nevada claims that Meta engaged in deceptive trade practices by promoting encryption as a tool to keep people safer.

Meta “represent[ed] that Messenger was safe and not harmful to Young Users’ wellbeing when such representations were untrue, false, and misleading…..

Similarly, Meta publicly touted its use of end-to-end encryption as a positive for users, meant to protect them from harm—going so far as to call it an “extra layer of security” for users

This is a full-on attack on encryption. If Nevada succeeds here, then it’s opening up courts across the country to outlaw encryption entirely. This is a massive, dangerous attack on security and deserves much more attention.

Meta’s response to the motion is worth reading as well, if only for the near exasperation of the company’s lawyers as to why suddenly, now, end-to-end encryption for messaging — a technology that has been available for many, many years — has become so scary and so problematic that it needs to be stopped immediately.

Meta Platforms, Inc. (“Meta”)1 has offered end-to-end encryption (“E2EE”) as an option on its Messenger app since 2016. Compl. ¶ 202. E2EE technology is commonplace and has been hailed as “vital” by privacy advocates for protecting users’ communications with each other.2 The only change Meta made in December 2023 was to announce that the Messenger app would transition all messages to E2EE (rather than an option), id.—which is what Apple iMessage, Signal and numerous other messaging services already do.

These facts completely disprove the State’s assertion that it is entitled to temporary injunctive relief. E2EE has been available as an option on Meta’s Messenger app for eight years, and Meta began rolling out E2EE for all messages on Messenger months ago. The State cannot properly assert that it requires emergency injunctive relief—on two days’ notice—blocking Meta’s use of E2EE, when that feature has been in use on Messenger for years and began to be rolled out for all messages more than two months ago. The State’s delay—for years—to bring any enforcement action related to Meta’s use of E2EE (or other providers’ use of E2EE) demonstrates why its request for the extraordinary relief of a TRO should be denied.

The response also points out that for the state to argue it’s in such a rush to ban Meta from using end-to-end encryption, it sure isn’t acting like it’s in a rush:

The State admits that E2EE has been available as feature on Messenger for eight years. See Mot. 10 (“Since 2016, Meta has allowed users the option of employing E2EE for any private messages they send via Messenger.” (emphasis added)). On December 6, 2023—ten weeks ago— Meta began making E2EE the standard for all messages on Messenger, rather than a setting to which users could opt in. 3 In doing so, Messenger joined other services, including Apple’s iMessage, which has deployed E2EE as a standard feature since 2011, 4 and FaceTime, for which E2EE has been standard since at least 2013. 5 Yet the State waited until January 20, 2024—six weeks after the new default setting was announced, and eight years after E2EE first became available on Messenger—to file its Complaint. It then inexplicably waited another three weeks to serve Meta with the Complaint.6 As such, before yesterday, Meta had not even been able to review the full scope of the State’s allegations.7 Mot. 14. Concurrently with its lengthy Complaint, the State served the present motion, along with two supporting declarations that purport to justify enjoining a practice that was announced two months ago (and was available for years as a nondefault setting and as a feature in other services, such as Apple’s iMessage).

The State’s delays demonstrate the fundamental unfairness of requiring Meta to prepare this Opposition on one day’s notice. There is no emergency that requires this accelerated timetable. Quiroga v. Chen, 735 F. Supp. 2d 1226, 1228 (D. Nev. 2010) (“The temporary restraining order should be restricted to serving its underlying purpose of preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer.” (cleaned up)). Meta has not been given sufficient time to identify and prepare responses to the myriad assertions and misstatements in the State’s Motion. Moreover, the State apparently seeks to present live testimony from its witnesses. See Mot. at 6. In this unfairly accelerated and truncated timetable, Meta has not been given a fair chance to develop responses to the State’s witnesses, nor to develop and present its own witnesses and evidence. In short, there is no exigency that warrants this highly accelerated and unfairly compressed timetable for Meta’s Opposition to the TRO motion—in contrast to a motion for preliminary injunction that can be noticed, briefed and heard under a reasonable schedule that allows Meta a fair opportunity to be heard.

Meta also points out that Nevada itself recognizes the value of encryption:

Indeed, Nevada law recognizes the value of encryption, requiring data collectors to encrypt personal information. See Nev. Rev. Stat. 603A.215. A seismic shift that would fundamentally challenge the use of E2EE should not be undertaken with a 24-hour turnaround on briefing that does not afford Meta a fair and reasonable opportunity to develop a full response to the State’s arguments.

Nevada’s position here, including the haste with which it is moving (after doing nothing about encryption for years) is astounding, dangerous, and disconnected from reality. Hopefully the court recognizes this.

Filed Under: encryption, end to end encryption, messenger, nevada, tro
Companies: meta

Microsoft/Activison TRO Granted, Everyone Says They’re Happy About It

from the the-FTC-won't-let-them-be dept

Well, that was fast. In the ongoing saga of Microsoft’s attempt to purchase Activision Blizzard, we just discussed the FTC’s petition to the court to have a temporary restraining order put in place preventing the two companies from finalizing the purchase while regulatory bodies were still doing their thing. Honestly, the most interesting part of that story were the hints within the request pointing to some of the arguments that the FTC is likely to make in court.

But it’s also not exactly unimportant that the court swiftly granted the FTC it’s TRO, for the moment preventing the two companies from finalizing the deal at all. And, whether real or mere pantomiming, both Microsoft and Activision are stating that this is all great. Preferred, even.

The temporary order issued by District Court Judge Jacqueline Corley doesn’t do much to suggest which way the court is leaning on the merits of the FTC’s case. A Microsoft spokesperson even acknowledged to the Associated Press that “a temporary restraining order makes sense until we can receive a decision from the Court, which is moving swiftly.”

The first hearing on the FTC’s preliminary injunction request is scheduled to start on June 22, giving Microsoft until Friday to file its initial response in the matter. That tight schedule might be to Microsoft’s overall benefit, as Activision CEO Bobby Kotick said Monday that the FTC’s federal injunction request “accelerates the legal process” and that their “excellent legal team has been preparing for this move for more than a year.”

There’s some truth to this. The hearing for the preliminary injunction set for later this month will be Microsoft and Activision’s first chance to clap back at the arguments that the FTC is making. In theory, both companies are also under a July 18th deadline to finalize the deal, though that is something both sides could easily renegotiate. Although, honestly, if it weren’t for the separation fee Microsoft would have to pay if it pulled out of the deal, I almost wonder if the FTC’s suit and the need to appeal the CMA’s block of the deal in the UK would be enough to make Microsoft reconsider all of this.

These are two major fronts on which Microsoft has to fight this legal war. The first hearing on the appeal in the UK isn’t even scheduled until the end of July. And now it has to fight the FTC and try to convince the court that it really intends to keep its games cross-platform, despite its blatant lies in the past.

In other words, good luck.

Filed Under: antitrust, ftc, tro
Companies: activision blizzard, microsoft

FTC Moves For A Restraining Order Stop Microsoft, Activision Blizzard Merger From Consummating

from the not-so-fast dept

We’ve been covering Microsoft’s attempt to acquire Activision Blizzard for months now and it just keeps getting more and more interesting. A very quick primer: Microsoft is seeking to acquire the company for a bonkers amount of money, the EU has already approved the deal, while the UK’s CMA has blocked it, and the FTC has filed suit to block it as well. The EU approval notwithstanding, the other two regulatory blocks represent serious challenges to this deal ever moving forward. Microsoft also made a point of stating previously that it would not finalize the deal while any pending litigation with the regulators was still going on.

It appears that the FTC doesn’t believe that claim, however. The commission has just petitioned in court for a temporary restraining order that would bar the deal from being consummated until its suit is resolved. And within that petition are some interesting hints as to what the FTC’s argument against the deal is going to be.

But first, the petition.

The FTC filed its complaint (PDF) for a temporary restraining order and preliminary injunction against Microsoft and Activision Blizzard’s injunction. The complaint claims that the parties “may consummate the Proposed Acquisition at any time,” despite pending actions with both the FTC and the UK antitrust authority.

The complaint specifically cites the long success of the Call of Duty franchise, the instant success of Diablo IV, and Overwatch 2 as “a successful new title,” in suggesting why Microsoft’s ownership of both Activision and its own gaming platforms would be problematic. A merger, the FTC writes, would be “reasonably likely to substantially lessen competition and/or tend to create a monopoly” in “high-performance consoles, multi-game content library subscription services, and cloud gaming subscription services.”

The filing itself goes further than that, which is where we get into some of the specifics the FTC is going to bring to the table in its suit. There are the normal claims you would expect in a suit like this: it would reduce competition and harm consumers in terms of choice, pricing, etc. But unlike the CMA’s tacit focus on the cloud gaming space, the FTC specifically calls out the console market as among the primary concerns.

Microsoft and Sony control the market for high-performance video game consoles. The number of independent companies capable of developing standout video games for those consoles has contracted, with only a small group of firms commanding that space today. Microsoft now proposes to acquire Activision, one of the most valuable of those developers, in a vertical merger valued at nearly $70 billion (the “Proposed Acquisition”) that will increase Microsoft’s already considerable power in video games. If consummated, the Proposed Acquisition would be the largest in the history of the video game industry and the largest in Microsoft’s history. The Proposed Acquisition would continue Microsoft’s pattern of taking control of valuable gaming content. With control of Activision’s content, Microsoft would have the ability and increased incentive to withhold or degrade Activision’s content in ways that substantially lessen competition—including competition on product quality, price, and innovation. This loss of competition would likely result in significant harm to consumers in multiple markets at a pivotal time for the industry.

Microsoft, one of only two manufacturers of high-performance video game consoles, develops and sells Xbox gaming consoles. Microsoft is vertically integrated: through its in-house game studios, it develops and publishes popular video game titles such as Halo. Such in-house games are known as “first-party” titles in the industry.

And then it goes on into the cloud side of Microsoft’s business. But in those two paragraphs, the FTC does two things. First, it puts a spotlight on the console market instead of focusing solely on cloud-gaming. That will become important in a moment. Second… it sort of digs at Nintendo for not being on the same level as Sony and Microsoft. That isn’t really important for this post, but I like to imagine Nintendo execs reading this and feeling super insulted by it. Why? I don’t know, but it makes me happy.

So why is that focus on the console market important? Because another section of the filing makes it clear that the FTC is going to tell the court at trial that Microsoft simply isn’t to be believed as to its plans to keep titles from being pulled into exclusivity arrangements.

Microsoft’s past conduct provides a preview of the combined firm’s likely plans if it consummates the Proposed Acquisition, despite any assurances the company may offer regarding its plans. In March 2021, Microsoft acquired ZeniMax Media Inc. (“ZeniMax”), the parent company of the well-known game developer and publisher Bethesda Softworks LLC (“Bethesda”). Microsoft assured the European Commission (“EC”) during its antitrust review of the ZeniMax purchase that Microsoft would not have the incentive to withhold ZeniMax titles from rival consoles. But, shortly after the EC cleared the transaction, Microsoft made public its decision to make several of the newly acquired ZeniMax titles, including Starfield, Redfall, and Elder Scrolls VI, Microsoft exclusives.

Yup. Fool me once, shame on you. Fool me twice? Something about George Bush, if I’m recalling the saying correctly.

The TRO is being sought because the FTC doesn’t have the power to block the deal being signed during litigation without it. Instead, the suit, if successful, would have to un-ring that bell, in a manner of speaking. Whether it’s granted or not remains to be seen, but the request for the TRO is downright scathing.

Filed Under: antitrust, call of duty, ftc, merger, preliminary injunction, tro, video games
Companies: activision blizzard, microsoft

Judge Rejects Epic's Temporary Restraining Order Request For Fortnite (But Grants It For The Unreal Engine)

from the and-so-it-goes dept

On Monday there was a… shall we say… contentious first hearing in the antitrust fight/contract negotiation between Apple and Epic over what Apple charges (and what it charges for…) in the iOS app store. The issue for the hearing was Epic’s request for temporary restraining orders against Apple on two points: first, it wanted a restraining order that would force Apple to return Fortnite to the app store. Second, was a restraining order on Apple’s plan to basically pull Epic’s developer license for the wider Unreal Engine.

As the judge made pretty clear would happen during the hearing, she rejected the TRO for Fortnite, but allowed it for the Unreal Engine. The shortest explanation: Apple removed Fortnite because of a move by Epic. So Epic was the cause of the removal. The threat to pull access for the Unreal Engine, however, seemed punitive in response to the lawsuit, and not for any legitimate reason.

More specifically, for a TRO to issue, the key issue is irreparable harm (i.e., you can get one if you can show that without one there will be harm that can’t be easily repaired through monetary or other sanctions). But here, as the court notes, Epic, not Apple, created the first mess, and so it can fix it by complying with the contract. So there is no irreparable harm, since it can solve the issue. The opposite is true of the Unreal Engine, though:

The Court finds that with respect to Epic Games? motion as to its games, including Fortnite, Epic Games has not yet demonstrated irreparable harm. The current predicament appears of its own making. See Second City Music, 333 F.3d at 850 (?Only the injury inflicted by one?s adversary counts for this purpose.?). Epic Games remains free to maintain its agreements with Apple in breach status as this litigation continues, but as the Seventh Circuit recognized in Second City Music, ?[t]he sensible way to proceed is for [Epic to comply with the agreements and guidelines] and continue to operate while it builds a record.? Id. ?Any injury that [Epic Games] incurs by following a different course is of its own choosing.? Id. Epic Games admits that the technology exists to ?fix? the problem easily by deactivating the ?hotfix.? That Epic Games would prefer not to litigate in that context does not mean that ?irreparable harm? exists.

By contrast, Epic Games has made a preliminary showing of irreparable harm as to Apple?s actions related to the revocation of the developer tools (SDKs). The relevant agreement, the Apple Xcode and Apple SDKs Agreement, is a fully integrated document that explicitly walls off the developer program license agreement. (See Dkt. No. 41-21 at 16.) Apple?s reliance on its ?historical practice? of removing all ?affiliated? developer accounts in similar situations or on broad language in the operative contract at issue here can be better evaluated with full briefing. For now, Epic International appears to have separate developer program license agreements with Apple and those agreements have not been breached. Moreover, Apple is hard-pressed to dispute that even if Epic Games succeeded on the merits, it could be too late to save all the projects by third-party developers relying on the engine that were shelved while support was unavailable. Indeed, such a scenario would likely lead to nebulous, hard-to-quantify questions, such as, how successful these other projects might have been, and how much in royalties would have been generated, much less the collateral damage to the third-party developers themselves.

This same analysis effectively shows up on the other issues, such as the “balance of equities” question:

… the Court observes that Epic Games strategically chose to breach its agreements with Apple which changed the status quo. No equities have been identified suggesting that the Court should impose a new status quo in favor of Epic Games. By contrast, with respect to the Unreal Engine and the developer tools, the Court finds the opposite result. In this regard, the contracts related to those applications were not breached. Apple does not persuade that it will be harmed based on any restraint on removing the developer tools.

None of this is all that surprising, but it certainly suggests that the judge is not being distracted by Epic turning this whole thing into an anti-Apple marketing campaign.

Filed Under: antitrust, fortnite, temporary restraining order, tro
Companies: apple, epic

Portland Journalists Ask For Sanctions As Federal Agents Continue To Assault Reporters And Legal Observers

from the aaaaaand-I'm-proud-to-be-an-Americaaaan-where-at-least-I-[pepper-spray] dept

Protests related to the killing of George Floyd by Minneapolis police officer Derek Chauvin have passed the two-month mark in Portland, Oregon. In response to unfettered liberalism, the Trump administration has sent in the troops. Officers from ICE, CBP, US Marshals Service, and other federal agencies flooded into Portland with the ostensible aim of protecting federal property, like the courthouse targeted by protesters.

Instead of a measured response to defuse tensions, federal officers engaged in Gestapo tactics. Unidentified officers in unmarked vehicles began removing protesters from the streets, hauling them away to unknown locations for questioning. Those released after being detained were given no paperwork commemorating their interaction with America’s secret police, nor were they told why they had been detained.

This wasn’t the only broadside against Constitutional rights. Federal officers also attacked journalists and legal observers. This didn’t just violate social contracts. It violated the First Amendment. Local journalists and observers sued. And they obtained a restraining order from a federal court blocking federal agents from attacking clearly identified journalists and observers. The court noted that local law enforcement — which had been hit with an earlier restraining order — was able to abide by the court-ordered rules of engagement. The court said the federal government offered no plausible argument why it would be impossible to abide by the same restrictions.

The [federal] police are rioting.

The plaintiffs are back in court asking for sanctions to be brought against the federal government for refusing to abide by the restraining order. (h/t Mike Scarcella)

The opening of the motion [PDF] contains some invective, but it appears to be justified.

On July 23, 2020, the Court issued a temporary restraining order prohibiting federal agents from assaulting and dispersing journalists and legal observers. Within hours, federal agents began violating the Court’s TRO and have continued to do so every night since. These violations are not inadvertent. They are intentional acts by a lawless president, who has sent his paramilitary forces to shoot up the streets of Portland, choke downtown in a haze of toxic chemical fumes, and generate reelection soundbites—in blatant disdain of public safety, the rule of law, and the most fundamental principles of our Constitution.

The plaintiffs aren’t wrong. Trump has made it clear he’s only sending federal agents into “liberal” cities. This may score points with his voter base but it’s doing nothing for the rest of America, which has expressed its disdain for the tactics deployed in Portland.

These tactics are forbidden — not just by the Constitution, but by a court order directly addressing the targeting of journalists and protesters. And yet, the government persists.

On July 23, a federal agent shot reporter Jonathan Levinson while he was trying to take a photo. No protesters were near him. A federal agent also shot journalist Brian Conley, when he was trying to video an arrest. Later that night, federal agents tear-gassed Mr. Conley. The same night, federal agents shot reporter Rebecca Ellis and separately prevented her from documenting their dispersal of protesters.

On July 24, federal agents shot legal observer Haley Nicholson in her chest, just above her heart, from four feet away. Impact munitions should not be used at distances of less than 15 feet or above the waist.

On July 25, federal agents deliberately sprayed toxic chemicals into the faces of multiple legal observers, including Bruce Knivlia and Kat Mahoney, at point blank range. They were all clearly identified in blue ACLU vests and green NLG hats. They also shot photojournalist Kathryn Elsesser, who was also clearly marked with “PRESS” on her helmet.

On July 26, a federal agent temporarily left an advancing line of agents to kick a flaming tear-gas canister directly at a group of clearly marked journalists.

On July 27, Plaintiffs contacted government counsel to raise these blatant violations. (Declaration of Matthew Borden (“Borden Decl.”), Ex. 1.) Instead of investigating and providing information as promised, the federal defendants claimed that they were unaware of what agents and commanders were involved and offered nothing to extenuate their violations of the TRO. That night, the federal agents heaped on more acts of contempt.

Here are a couple of sworn declarations [PDF] by journalists and observers [PDF] who have been attacked by federal officers. More declarations can be found here.

If sworn declarations aren’t enough, there’s also video:

Here’s a copy [PDF] of the depressing communication the law firm representing the journalists had with DHS counsel Joshua Gardner. When asked for information about the agencies he represents, Gardner had almost nothing useful to say.

First, Gardner said he had no idea what policies or directives were guiding agents’ actions. He promised to “check” on those. The DHS’s lawyer also claimed agents had seen protesters “masquerading” as journalists. When asked for proof of these claims, Gardner was unable to cite any such instance being observed by a federal officer. Finally, the government’s lawyer claimed he had no information about any officers observed violating the restraining order or any details about supervisors tasked with communicating the specifics of the order to federal agents.

Chances are, very few agents have been formally made aware of the order’s specifics. Ignorance is, at least for the moment, bliss. Those who don’t know can’t be blamed for their actions. Or, at least, not as easily. Plausible deniability in all things, including the continued violations of rights in contempt of a court order. But this ignorance may be less blissful than usual. The restraining order made it clear officers were to be made aware as soon as possible because the usual lawsuit escape hatch was being removed by the court issuing the order.

Because the Court considers any willful violation of this Order, or any express direction by a supervisor or commander to disregard or violate this Order, to be a violation of a clearly established constitutional right and thus not subject to qualified immunity in any action brought against any individual employee, officer, or agent of the Federal Defendants under Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971), notice of this Order must be widely disseminated.

If you’re paying close attention, you can see the loophole being exploited. “Willful violations” are tough to prove when no one has received updated instructions. And if no one orders anyone to violate the court order, supervisors can’t be held accountable either. It’s a perfect storm of non-accountability. And that’s what appears to be going on in Portland.

The plaintiffs are asking for justice and respect for their rights. They’re asking for the federal government to play by the rules. Federal agents are responding with “Fuck you. Make me.” The federal government is priming the powder keg while pretending to care about buildings and statues. If a federal court can’t make federal agents play by the Constitutional rules, who can?

Filed Under: 1st amendment, arrests, attacks, dhs, journalists, legal observers, portland, protests, restraining order, tro

Judge To Art Licensing Agency: No, Your Stupid Unicorn Is Not More Important Than COVID-19 Right Now, Shut Up

from the slightly-paraphrased dept

Pretty much everyone by now should recognize that large parts of the world have needed to shutdown due to COVID-19 — and you would hope that most people would be understanding that certain things may need to be delayed for a bit. But apparently not lawyer Michael Hierl from the law firm of Hughes Socol Piers Resnick & Dym, and his client, a copyright licensing agency called Art Ask Agency, based in Spain. On March 9th, Art Ask Agency sued a bunch of unnamed defendants (their identity to be determined later), in US federal court in Illinois, over what it calls “counterfeit” images of a unicorn designed by artist Anne Stokes. Stokes apparently does brisk work in unicorn-related merchandise, as seen by her page on Art Agency’s website:

And, boy, is Art Agency ever so mad that there are “counterfeit” unicorns out there, which they claim violate Stokes trademark and copyright. Art Agency is so mad, that it’s tossing out totally random fantasy numbers that have nothing to do with the specific works in this case:

The success of Plaintiff?s brand has resulted in its counterfeiting. Plaintiff has identified numerous domain names linked to fully interactive websites and marketplace listings on platforms such as iOffer and Aliexpress, including the Defendants? Internet Stores, which were offering for sale, selling, and importing counterfeit products to consumers in this Judicial District and throughout the United States. Defendants have persisted in creating the Defendants? Internet Stores. Internet websites like the Defendant Internet Stores are estimated to receive tens of millions of visits per year and generate over 135billioninannualonlinesales.AccordingtoanintellectualpropertyrightsseizuresstatisticsreportissuedbyHomelandSecurity,themanufacturer?ssuggestedretailprice(MSRP)ofgoodsseizedbytheU.S.governmentin2013wasover135 billion in annual online sales. According to an intellectual property rights seizures statistics report issued by Homeland Security, the manufacturer?s suggested retail price (MSRP) of goods seized by the U.S. government in 2013 was over 135billioninannualonlinesales.AccordingtoanintellectualpropertyrightsseizuresstatisticsreportissuedbyHomelandSecurity,themanufacturer?ssuggestedretailprice(MSRP)ofgoodsseizedbytheU.S.governmentin2013wasover1.74 billion, up from $1.26 billion in 2012. Internet websites like the Defendants? Internet Stores are also estimated to contribute to tens of thousands of lost jobs for legitimate businesses and broader economic damages such as lost tax revenue.

Then there’s a lot of conspiracy theory stuff about how the defendants hide who they are and part of this lawsuit is to try to figure out who is selling those darn counterfeit unicorns. As the plaintiff admits, many of the sellers are likely in China, meaning it’s unlikely (1) they’ll be found or (2) that a federal court in the US can do much to people in China printing counterfeit t-shirts. It seems the real goal of the lawsuit is to get a court order that can be passed along to various internet merchants to pressure them to take down the listings. Part of the relief sought is:

Entry of an Order that, upon Plaintiff?s request, those in privity with Defendants and those with notice of the injunction, including any online marketplaces such as iOffer and Alibaba Group Holding Ltd., Alipay.com Co., Ltd. and any related Alibaba entities (collectively, ?Alibaba?), social media platforms, Facebook, YouTube, LinkedIn, Twitter, Internet search engines such as Google, Bing and Yahoo, web hosts for the Defendants? Domain Names, and domain name registrars, shall:

> a. disable and cease providing services for any accounts through which Defendants engage in the sale of counterfeit products using the Anne Stokes trademark or which are derived from the copyrighted artwork, including any accounts associated with the Defendants listed on Schedule A; > b. disable and cease displaying any advertisements used by or associated with Defendants in connection with the sale of counterfeit products using Plaintiff?s trademark or which are derived from the copyrighted artwork; and > c. take all steps necessary to prevent links to the Defendants? Domain Names identified on Schedule A from displaying in search results, including, but not limited to, removing links to the Defendants? Domain Names from any search index;

So, in short, Art Agency and Stokes want the court to issue an order that they can wave at various stores and search engines demanding they delist the various “counterfeit” unicorn merch. Indeed, a day after filing the complaint, the lawyer, Hierl, requested a temporary restraining order (TRO) on the still nameless defendants. He’s also filed a bunch of stuff under seal, which is a bit confusing in a case like this, but given some of the conspiratorial language in the complaint — and Hierl later also suggesting that if the defendants were to become aware that he was after them they may alter their tactics and hide — perhaps that’s all part of the plan.

As you might imagine, the court is a wee bit busy with everything else going on right now. So, it said rather than an immediate hearing, it needed to push off a hearing until April 13. In the grand scheme of things… not that long. Hierl, quickly filed an ex parte motion saying that it was really super duper important to have the hearing immediately, because counterfeit unicorns were at stake, dammit.

Due to the nature of Plaintiff’s claims and the existence of irreparable injury, Plaintiff respectfully requests this Court to re-set its Ex Parte Motion for Entry for a Temporary Restraining Order for presentment during the week of March 16, 2020. Plaintiff is willing to appear telephonically or otherwise make itself available for the presentment of Plaintiff’s motion.

Delay of entry of Plaintiff’s Ex Parte Motion for Temporary Restraining Order would result in significant irreparable injuries to Plaintiff, continue harm to the consuming public and denial of the protections that only this Court can afford.

Dude’s in quite a rush, it seems. The same day (last Monday) that Hierl made this request to have the hearing as quickly as possible, rather than waiting until April, the Court responded saying, in not so many words, “Dude, everyone’s impacted by COVID-19, all cases are impacted, including yours, and be a little patient.” More specifically, it pointed him to the following notice, which makes it clear that many things are getting pushed back and the court isn’t having any hearings for a few weeks due to COVID-19.

You would think that lawyer Hierl might get the message. But, no. UNICORNS are at stake. Counterfeit unicorns. He filed an emergency Ex Parte Motion, demanding a TRO as soon as possible.

On Wednesday, Judge Steven Seeger, who’s only been on the bench for a few months, denied the motion two days later, and was, uh, pretty clear to Hierl that unicorns, counterfeit are not, are not exactly the most pressing matter at this moment:

This case involves counterfeit unicorn drawings. The complaint includes a few examples of products that allegedly infringe Plaintiff?s trademarks, which offer ?striking designs and lifelike portrayals of fantasy subjects.?… One example is a puzzle of an elf-like creature embracing the head of a unicorn on a beach…. Another is a hand purse with a large purple heart, filled with the interlocking heads of two amorous-looking unicorns… There are phone cases featuring elves and unicorns, and a unicorn running beneath a castle lit by a full moon….

Meanwhile, the world is in the midst of a global pandemic. The President has declared a national emergency. The Governor has issued a state-wide health emergency. As things stand, the government has forced all restaurants and bars in Chicago to shut their doors, and the schools are closed, too. The government has encouraged everyone to stay home, to keep infections to a minimum and help contain the fast-developing public health emergency.

The United States District Court for the Northern District of Illinois took action last week to protect the public, issuing General Order No. 20-0012 entitled IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY. See www.ilnd.uscourts.gov (last visited March 16, 2020) (bold and all caps in original). On March 16, the Executive Committee issued an amended Order that, among other things, holds all civil litigation in abeyance.

Judge Seeger is just warming up.

Last week, Plaintiff filed a motion for a temporary restraining order (Dckt. No. 11) against the Defendants (who are located abroad) and requested a hearing…. This Court thought that it was a bad time to hold a hearing on the motion. So, this Court moved the hearing by a few weeks to protect the health and safety of our community, including counsel and this Court?s staff. See Dckt. No. 19. Waiting a few weeks seemed prudent.

Plaintiff has not demonstrated that it will suffer an irreparable injury from waiting a few weeks. At worst, Defendants might sell a few more counterfeit products in the meantime. But Plaintiff makes no showing about the anticipated loss of sales. One wonders if the fake fantasy products are experiencing brisk sales at the moment.

Uh oh, Hierl. This ain’t going well.

On the flipside, a hearing ? even a telephonic one ? would take time and consume valuable court resources, especially given the girth of Plaintiff?s filings. See Dckt. Nos. 1, 6-7, 11-18. And the proposed temporary restraining order would require the attention of innocent third parties, and create a cascade of obligations. Plaintiff wants to force financial institutions to lock down accounts, and require domain name registries to shut down websites, for example. See Dckt. No. 12. Plaintiff requests an order forcing innocent third parties ? such as Amazon, eBay, PayPal, Alibaba, Western Union, plus social media platforms such as ?Facebook, YouTube, LinkedIn, [and] Twitter,? plus internet search engines such as ?Google, Bing and Yahoo,? among others ? to spring into action within two or three days. Either the order would be a nullity, or it would distract people who may have bigger problems on their hands right now.

The judge ain’t done yet.

Plaintiff recognizes that the community is in the midst of a ?coronavirus pandemic.?… **But Plaintiff argues that it will suffer an ?irreparable injury? if this Court does not hold a hearing this week and immediately put a stop to the infringing unicorns and the knock-off elves.**… To top it off, Plaintiff noticed the motion for a hearing on March 19, 2020, a day that has been blocked off on the Court?s calendar ? as revealed on its webpage ? for several weeks….

Meanwhile, the Clerk?s Office is operating with ?limited staff.?… ?[P]hone conferencing? is available ?in emergency situations and where resources permit.? … The Court can still hear emergency motions, but resources are stretched and time is at a premium… If there?s ever a time when emergency motions should be limited to genuine emergencies, now?s the time.

And, to be clear, at this point, Judge Seeger is still talking about the original Ex Parte motion to move the hearing up. Now we get to the “Emergency” Ex Parte Motion.

Thirty minutes ago, this Court learned that Plaintiff filed yet another emergency motion. They teed it up in front of the designated emergency judge, and thus consumed the attention of the Chief Judge…. The filing calls to mind the sage words of Elihu Root: ?About half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop.? …

The world is facing a real emergency. Plaintiff is not. The motion to reconsider the scheduling order is denied.

Yeah, take your fake unicorns and shut the fuck up right now.

Oh, and then just a bit later, Judge Seeger denied the Temporary Restraining Order, and once again, tries to put things in perspective for Hierl and his client.

Plaintiff’s Ex Parte Motion for Entry of a Temporary Restraining Order (Dckt. No. [11]) is denied without prejudice. Injunctive relief is an “extraordinary remedy,” and it is “not granted routinely.”… Here, Plaintiff makes next to no showing that it will suffer irreparable harm unless this Court issues emergency relief. The gist of the motion is that Plaintiff will suffer harm from the sale (and the offer for sale) of counterfeit unicorn products on the internet. But Plaintiff gives this Court no information about the anticipated loss of sales. Not even an estimate. Plaintiff doesn’t even tell this Court anything about its own sales, let alone anything about the volume of sales that it will lose without immediate Court action. Maybe the loss of sales is de minimis, or maybe not. But the point is that Plaintiff has made no such showing. A generic allegation of harm, without more, does not weigh heavily in the balance. On the flipside, one of the most important considerations before awarding equitable relief is the public interest. Here, Plaintiff proposes a bloated order that imposes extraordinary demands on third parties, including a wide array of technology companies and financial institutions. (Dckt. No. [30]) Plaintiff’s proposed order would require immediate action, in a matter of days, from firms that have nothing to do with this case. In the meantime, the country is in the midst of a crisis from the coronavirus, and it is not a good time to put significant demands on innocent third parties. See generally General Order 20?0012 (as amended on March 17, 2020). All of them undoubtedly have (more) pressing matters on their plates right now. To put it bluntly, Plaintiff’s proposed order seems insensitive to others in the current environment. Simply put, trademark infringement is an important consideration, but so is the strain that the rest of country is facing, too. It is important to keep in perspective the costs and benefits of forcing everyone to drop what they’re doing to stop the sale of knock?off unicorn products, in the midst of a pandemic. Without a showing of immediate, real?world harm, this Court cannot impose significant demands on third parties in the current environment. That said, this Court denies the motion without prejudice. Later, perhaps Plaintiff will make a better showing. But for now, Plaintiff has come up short (by a wide margin). As a reminder, the Court expects Plaintiff and its counsel to follow General Order 20?0012, including the admonition about emergency motions.

And, yes, this is our second story about potential unicorn infringement in just about a month, but these are the times we live in.

Filed Under: anne stokes, copyright, licensing, michael hierl, steven seeger, trademark, tro, unicorns
Companies: art ask agency

Exaggerated Claims And Out Of Context Tweets Used By Political Hopeful To Slap Restraining Order On Critic

from the free-speech? dept

We’ve written plenty of times about the chilling effects of abusing the legal system to silence critics. Most commonly, we highlight bogus defamation cases — as that seems to be the favored choice of those trying to shut someone up. Sometimes we’ve talked about abusing copyright law to silence people as well. But there are other mechanisms to use, and today we’ll be highlighting a local political fight in California that resulted in someone getting a “temporary restraining order” on a critic which was clearly little more than an attempt to silence that critic from calling attention to factual information in the past.

The story involves two individuals who were engaged in local politics in Santa Clarita, California. One is a guy named Sean Weber, who sought an open City Council seat earlier this year. The other is a guy named Brett Haddock, who also initially sought the same open City Council seat… and also happens to run a very amusing satirical Twitter account, @NSA_PR in which (you guessed it), he channels the satiric id of the NSA’s public relations team. (Full disclosure: I’ve interacted with that Twitter account a bunch online, and I believe that Haddock has purchased some of our t-shirts and backed some of our crowdfunding campaigns, though I haven’t gone back to check — so feel free to read this story with all of that in mind). Neither Weber nor Haddock obtained the open seat.

Either way, Haddock and Weber did not see eye to eye on things. The full nature of the dispute isn’t all that important, but for one key aspect. In running for City Council, during a radio interview, Weber made two key claims that Haddock felt were misleading. The first was that he volunteered at a local homeless shelter and the second was that he had been working with a local school district on an “active shooter” response system. Haddock, in response, posted a blog post detailing why both of these points were misleading.

There are lots of details in Haddock’s post, but the very quick summary is that the “volunteering” at a local homeless shelter was actually 192 hours of mandatory community service as part of his probation after being arrested for “dissuading a witness by force or threat.” So, yeah. He worked at a homeless shelter, but it’s a bit rich to hold that upt as “volunteering.”

As for the “active shooter” stuff, Haddock points out that it appears that Weber, as part of his job running a “managed service provider,” approached the school about selling them on some communications services that might be useful in emergencies. In an email that Haddock obtained from school district officials, it was noted that Weber “cold called” them in trying to sell them some services and the school met with him a few times, and were told that Weber would submit a proposal, which the official does not believe ever came. Whether or not you consider Weber’s claims in a radio interview to have met with the school to discuss such a system or to “provide guidance” on such a system to be accurate or not is a matter of your opinion. It certainly does seem that the fact that this was as a sales cold call provides some useful additional context that Weber was less than clear on.

All in all this doesn’t seem like a big deal. This is Haddock using his Constitutional right of expression to add potentially valuable context to statements made by an individual seeking public office. As you might guess, however, Weber did not appreciate Haddock’s blog post, or similar questions that Haddock had raised elsewhere. Haddock and Weber both appear to have participated, sometimes vehemently, in online discussions in a Facebook group, where Haddock felt that Weber was rude and threatening to other members of the group. At one point, the two engaged in a Facebook messaging conversation that appears — at least — to initiate with Haddock and Weber totally misunderstanding each other over the use of the common phrase “have you stopped beating your wife?”, and rather than resolving the misunderstanding things escalate (as they often do in online conversations). And, boy, do they escalate, with each one promising to leave the conversation multiple times only to see it continue. A few times Weber makes insinuations about Haddock’s girlfriend, while Haddock refers to Weber as a “con man.” Neither is pleased with what the other is saying. Weber continues to escalate, though, and threatens to inform Haddock’s employer about this… and, eventually, reacts the way lots of online bullies act when they get annoyed: with veiled threats of potential legal action (he talks about “tortious interference” and “punitive damages” but also says “not going to sue you as you don’t have any assets and it’s not my style.”)

If you’ve engaged in internet fights, it’s not all that different than probably tons you’ve seen before. That all came a few weeks before Haddock’s blog post described above. Immediately after that blog post, Weber filed for a restraining order. That… doesn’t make much sense. All there had been was some heated online discussions and a blog post that was clearly protected speech. Yet, in the paperwork for the restraining order, Weber’s lawyer said that Haddock had engaged in “a persistent pattern of online ‘cyber’ harassment that has been increasing in volume and a harassing course of action, including but not limited to posting of the private home address and telephone numbers.” It also claims that “the tone and volume of the messages have increased to the point where Petitioner is fearful for his safety and that of his family.”

As you look through the details most of this is not at all true. It does appear that they had that conversation on Facebook a few weeks earlier, but after that all conversation ceased. The issue of posting “home address and telephone numbers” was apparently a missed redaction in some of the court documents that Haddock posted as evidence. A family member of Weber’s asked Haddock to fix and Haddock noted that he had redacted the info and asked politely if any information that should have been redacted had been missed… and never heard back. Weber’s restraining order request claims that Haddock ignored the requests which does not appear to be true.

Even more ridiculous, Weber and his lawyer present a worker’s comp situation that Haddock is engaged with concerning his current employer as evidence that Haddock has psychological problems. That’s based on part of the worker’s comp claim where Haddock’s claim noted he has been having difficulty sleeping due to a back injury after his office chair broke.

Finally, after Haddock and his lawyer responded, pointing all this out, rather than prove the supposed increasing cyber harassment, Weber’s lawyer filed a truly bizarre response, that is the legal equivalent of “look, squirrel!” Rather than showing the supposed cyber harassment, the brief completely pivots and mostly focuses on combing through Haddock’s social media feeds and taking random tweets (usually joke tweets) completely out of context to suggest that Haddock is somehow mentally unstable and therefore dangerous. When put back into context it’s quite clear that nothing of the sort is true.

The use of the tweets is particularly ridiculous. Some are obvious jokes. Some are devoid of context, such as this one:

Beyond the fact that this is from two years ago (well before this dispute happened) and beyond the fact that it’s just a general exasperated statement using a Futurama meme, Weber’s lawyer ignores that YouTube link. What is it? It’s a twerking stuffed dog. Haddock isn’t suggesting that he’s going to kill himself or do damage. He’s mocking the fact that a twerking stuffed dog is the end of civilization. How that could possibly be evidence of either mental instability or “harassment” requiring a restraining order is beyond me. Over and over again, the tweets being used as evidence against Haddock are merely jokes or wry commentary on totally unrelated issues (bizarrely, a few of the tweets actually involve a wholly unrelated issue loosely involving Techdirt and someone who was very angry at one of our own stories).

Here’s another example, where Weber’s filing takes things totally out of context. Weber’s filing shows the following two tweets as supposed evidence of Haddock being “disposed to erratic (and possibly violent) behavior”:

Even without context, neither of these tweets appear to be all that damning. They appear to be someone obviously venting frustration online in a hyperbolic manner, but with zero evidence of being “erratic” or disposed to violent behavior. But let’s put them back into context. If you looked at the full thread around Haddock’s statements, he’s talking about the frustration (one many people have experienced) of dealing with the bureaucratic mess involving the insurance company and his worker’s comp claim:

This is all… pretty terrible. And, it gets worse: the court granted the restraining order. At the last minute, Haddock brought in Ken “Popehat” White to handle the hearing, and White got the judge to say that Haddock can still blog about Weber, but there’s now a two year restraining order on Haddock saying that he needs to remain physically separate from Weber, keeping a distance of at least 100 yards in most cases, reduced to 20 yards at public gatherings.

Haddock and White have both made it clear that they are going to appeal this restraining order, which Haddock has argued effectively makes it impossible for him to engage in local political issues, as he’s done for years. The whole thing appears to be a clear attempt to stifle free speech through legal process. It’s difficult to see anything that Haddock has done that reaches a level of harassment or “stalking” that requires a temporary restraining order, and because of that his own speech is at the very least chilled.

Filed Under: brett haddock, chilling effects, first amendment, free speech, restraining order, santa clarita, sean weber, social media, tro

Roca Labs Quickly Agrees To (Temporarily) Stop Questionable Marketing Claims & Drop Gag Clause

from the that-was-quick dept

So that didn’t take long at all. Following the FTC officially taking Roca Labs to court over its deceptive marketing practices and its ridiculous gag clause barring anyone from complaining about Roca Labs, the company has already agreed to a temporary restraining order, saying that it will stop both things for now. Normally, if you have even half a case, you’d fight the temporary restraining order, but here it took basically a day for Roca Labs to say, “Okay, we’ll stop all that stuff.” That doesn’t mean the company won’t fight back going forward, but it certainly suggests that the company may realize how much trouble it’s in.

Filed Under: don juravin, false advertising, ftc, gag clause, temporary restraining order, tro
Companies: roca labs

DOJ Admits It's Still Destroying Evidence In NSA Case; Judge Orders Them (Again) To Stop; DOJ Flips Out

from the hey-you-guys dept

So, remember how we wrote about the big EFF filing in the Jewel v. NSA case, about how the NSA and DOJ had been knowingly destroying key evidence by pretending that they thought the preservation orders only applied to one kind of spying, and not the kind that was approved by the FISA Court (despite at other times admitting that the surveillance at issue in the case was approved by the FISA Court)? Yeah, so, yesterday, the EFF realized that despite the big kerfuffle this whole thing had caused, the NSA and DOJ were still destroying that evidence, and sprinted over to the court to file for an emergency temporary restraining order on the government.

In its TRO, the Court ordered the government to refrain from any further destruction of evidence pending final resolution of the parties’ dispute over the government’s evidence preservation obligations: “Accordingly, it is HEREBY ORDERED that Defendants, their officers, agents, servants, employees, and attorneys, and all those in active concert or participation with them are prohibited, enjoined, and restrained from destroying any potential evidence relevant to the claims at issue in this action, including but not limited to prohibiting the destruction of any telephone metadata or ‘call detail’ records, pending further order of the Court.” ECF No. 189 at 2 (emphasis added). In its Amended Minute Order, the Court reiterated that the TRO’s prohibition on any evidence destruction remains in effect until the Court has finally decided the evidence preservation dispute: “The Court extends the temporary restraining order issued on March 10, 2014 until a final order resolving the matter is issued.” ECF No. 206 at 1.

In communications with the government this week, plaintiffs learned to their surprise that the government is continuing to destroy evidence relating to the mass interception of Internet communications it is conducting under section 702 of the Foreign Intelligence Surveillance Act. This would include evidence relating to its use of “splitters” to conduct bulk interceptions of the content of Internet communications from the Internet “backbone” network of AT&T, as described in multiple FISC opinions and in the evidence of Mark Klein and J. Scott Marcus….

Ridiculously, the DOJ claimed that it did not believe the original TRO covered internet content interceptions, and thus was still destroying such evidence. It just said it believed the court was still determining if the TRO applied to such evidence. It took very little time for the court to respond, telling the DOJ to file an immediate response and in the meantime to stop destroying the freaking evidence.

On June 5, 2014, the Court received an emergency filing from Plaintiffs in which they contend that the government may be in violation of the Court’s restraining order. Defendants shall file a response to Plaintiffs’ emergency filing by no later than 12:00 noon PST on Friday, June 6, 2014. At that time, the Court shall decide whether and when to have a hearing on this matter. In the interim, the restraining order remains in effect: Defendants are ordered not to destroy any documents that may be relevant to the claims at issue in this action, including the Section 702 materials

This is pretty damn egregious. There is simply no way that the DOJ could properly read the original TRO to mean that it can continue to destroy this evidence. To pretend that’s a possible reading, especially given all the clear notifications of both EFF’s and the court’s concerns, is clearly the DOJ and NSA just playing dumb for the sake of being able to destroy more evidence.

And while the DOJ had until today to file its response, late yesterday it filed a very short response, demanding the judge issue an emergency stay on the TRO it had just issued, saying that complying with it would “cause severe operational consequences.”

Undersigned counsel have been advised by the National Security Agency that compliance with the June 5, 2014 Order would cause severe operational consequences for the National Security Agency (NSA’s) national security mission, including the possible suspension of the Section 702 program and potential loss of access to lawfully collected signals intelligence information on foreign intelligence targets that is vital to NSA’s foreign intelligence mission.

It also promises to file a more complete response today, which we’ll try to add here once it’s out. This response seems bizarre. It’s unclear why an order to not destroy evidence would mean that the Section 702 program would need to be suspended entirely. Either way, EFF lawyers had to stay up late last night, rushing out their own reply to the DOJ’s frantic freakout.

It is not credible that, as the government contends, simply refusing to destroy during the next 18 hours the communications it has intercepted will cause “the possible suspension of the Section 702 program.”… How can the preservation of these intercepted communications cause a “loss of access to lawfully collected signals intelligence information”? … That information will remain accessible even though it is being preserved.

More fundamentally, the unspoken but unmistakable foundation of the government’s position is a contention that it never understood before this afternoon that the Court’s TRO required it to preserve evidence relating to its interception of Internet communications. This, too, lacks any credibility, especially in light of the extensive discussions between Court and counsel at the March 19, 2014 hearing on the evidence preservation dispute. The government’s disregard for the past three months of its obligations under the Court’s TRO should not be retroactively blessed by granting a stay that permits the government to continue destroying evidence.

I imagine there will be more very soon.

Filed Under: destruction of evidence, doj, evidence, jewel v nsa, nsa, section 702, surveillance, tro
Companies: eff