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I recently posted a diary about Justice Department attempts to use US Attorneys to establish Patriot II through precedent. I noted then that independent journalist Josh Wolf had been jailed by a USA for failing to produce his footage of a demonstation, even though it was available on his website. I wondered if the USA firings might be an attempt to "encourage" reluctant US Attorneys to chip away at Constitutional protections through precedent-setting cases.

Today, while attention is focussed on allegations about the politicization of the indictment process, TPM links to a CNET article by Declan McCollogh.

The article details Gonzales' efforts to force ISPs to retain internet use data for up to two years for law enforcement purposes.

This diary examines the proposed data retention "Safety Act" in light of its potential impact on citizen-journalists like you and me.

In my last diary, I quoted some particularly frightening bits and pieces of Patriot 2, a draft of legislation produced by Ashcroft, shared with Hastert and Cheney, and then leaked to the press.

While the legislation was scuttled, the Bush Administration has continued to push for passage of pieces of the proposed bill.

One aspect of the "Domestic Security Enhancement Act" that still concerns me, is the attempt to change the definition of terrorism to include vaguely defined "computer crime."

Section 125: Nationwide Search Warrants in Terrorism Investigations.

Federal Rule of Criminal Procedure 41(a)(3) currently authorizes judges in one district to issue search warrants that are valid in another district, if the crime being investigated is "domestic terrorism or international terrorism" as defined in 18 U.S.C. § 2331. But § 2331 sets forth an extremely narrow definition of terrorism, as it is limited to "violent acts or acts dangerous to human life..." .

This provision would expand the types of terrorism crimes for which judges may issue search warrants that are valid nationwide. Specifically, it would authorize nationwide search warrants in investigations of the offenses listed in 18 U.S.C. § 2332b(g)(5)(B), including computer crimes, attacks on communications infrastructure, and providing material support to terrorists or terrorist organizations.

This passage would have enabled the Justice Department to detain citizen-journalists such as Wolf, for "terrorism." (For more on Wolf, see here and here).

It appears that Gonzales is continuing his underhanded backdoor attempts to turn Section 125 of Patriot II (or the Domestic Security Enhancement Act of 2003) into law, this time, ostensibly to battle child pornography. I guess the terrorism mantra was wearing a little thin and he was running out of allies. (We should not forget his recent, highly publicized attempt to change the rules for appointment of US Attorneys by sneaking them into an "anti-terrorism" bill without the knowledge of Congress).

Proponents want internet providers to retain records of images sent and received for up to two years. However, the bill would also require ISP's to retain identifying information on all users in case it is required for law enforcement purposes. By switching his focus from terrorism to child porn, Gonzales is gaining new support for his constitutional invasions.

According to CNET's ISP Snooping Timeline (with a few small editions of my own):

    Gonzales first quietly proposed data retention rules for ISPs in June of 2005.

    European Parlaiment voted for data retention for up to two years in December of 2005;

    In April of 2006, data retention proposals surfaced simultaneously in Colorado and in Congress. (According to CNET, Diana DeGette, an otherwise Democratic Representative from Colorado, has been the most vocal proponent of retention laws. She hopes they will help to combat child pornography.)  A few days later, Attorney General Gonzales stated that data retention "must be addressed."

    In May of 2006, Gonzales began to pressure specific ISPs to retain data.

    Wolf was jailed for failure to turn over his video by a US Attorney in August of 2006.

    In September of 2006, politicians began floating the idea that ISP hosts and search engines might have to begin retaining data for law enforcement purposes.

    On December 7th, 2007, eight US Attorneys were fired with no explanation. (Yesterday we learned they were purportedly fired after a policy-related performance review.)

    In January of 2007, Gonzales announced he would be seeking legislation to force data retention.

    On February 6, 2007, the Republicans introduced the mandatory data retention (Stopping Adults Facilitating the Exploitation of Youth) "Safety Act," slipping a provision about ISP data retention into a bill addressing child pornagraphy, predation and money laundering.

One wonders why the Justice Department had Josh Wolf arrested since he was not in possession of, or involved with, child pornography.

Specifically, he filmed demonstrators vandalizing a police car. The US Attorney is arguing that, because the police car was purchased through a federal grant, its vandalism is a federal crime.

There are three dangerous potential precedents at work:

  1. It would make it a federal crime subject to prosecution by the US Attorney to vandalize an object bought with federal money.
  1. It would enable the US Attorney to override state shield laws in broadly defined federal cases; and
  1. It would exempt independent journalists from state shield laws.

What happens if the US Attorney prevails, if Gonzales succeeds in appointing a bunch of hacks in place of good USAs, and if the SAFETY Act passes? Can internet service providers be compelled to provide information on users who are not pornographers? Are the new "non-journalists" subject to arrest for images in their possession?

It is easy to ignore this stuff because it is complicated and boring, especially for those of us who are not lawyers. But if we want to continue to enjoy the freedom to investigate infractions of our constitution as patriotic citizen-journalists, we had better remain tediously vigilant!!!!

Originally posted to TheFatLadySings on Sat Mar 10, 2007 at 05:25 AM PST.

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Comment Preferences

  •  Tip Jar (22+ / 0-)

    Thanks for reading! We need to put an end to the creeping fascism that is infecting our government.

    Big boss ain't so big, just tall, that's all.

    by TheFatLadySings on Sat Mar 10, 2007 at 05:24:50 AM PST

    •  Creeping? (3+ / 0-)
      Recommended by:
      rktect, Rogneid, TheFatLadySings

      With Abu, he's just plodding along quite out there as much as Crisco Ashcroft did.

      "Future archaeologists will be able to identify a `[Windows] Vista Upgrade Layer' when they go through our landfill sites." - from the UK Green Party

      by Ari Mistral on Sat Mar 10, 2007 at 06:54:28 AM PST

      [ Parent ]

      •  Gonzales has no credibility (2+ / 0-)
        Recommended by:
        Ari Mistral, TheFatLadySings

        hence no power. People aren't going to go down with this ship. Libby won't have anyoone left to pardon him if they don't act soon...

        Live Free or Die --- Investigate, Incarcerate

        by rktect on Sat Mar 10, 2007 at 08:46:26 AM PST

        [ Parent ]

        •  Yeah, but (1+ / 0-)
          Recommended by:
          Ari Mistral

          we can't count on that. As you say in your signature line--investigate, incarcerate!

          Big boss ain't so big, just tall, that's all.

          by TheFatLadySings on Sat Mar 10, 2007 at 01:26:07 PM PST

          [ Parent ]

          •  The more action now the better (1+ / 0-)
            Recommended by:

            Why wait for Congress to go after him? Why not just begin filling our own civil cases against him. NSA warrentless surveilance for example, compounded by all the criminal charges for example, the  obstruction of justice with the US attorney's cases,

            Government entities and their insurance carriers should take note of a sea change in qualified immunity jurisprudence.

            The defense of qualified immunity to constitutional rights violations is increasingly and, in many instances, appropriately coming under attack since the U.S. Supreme Court ruled against defendant officials last June in a case involving a prisoner punished by being lashed to a hitching post.

            Just last week, the First, Fifth, Sixth, Eighth and Eleventh Circuits each decided cases involving constitutional rights claims, and in each such case where the affirmative defense of qualified immunity was raised, the "state actor" was not entitled to its protection.

            If that statistic isn’t enough to raise the neck hairs of an insurance executive, there’s more. Also, last week, the U.S. Supreme Court shipped back to the Eleventh Circuit a civil rights case against two police officers and the largely self-insured city of Boynton Beach, Florida with instructions to reconsider the case in light of its June ruling.

            In that ruling, Hope v. Pelzer, the Supreme Court held that the critical issue concerning qualified immunity is whether the defendant official had "fair notice" that his conduct was unconstitutional. (For more about the ruling, click here).

            Prior to the Hope ruling, the Eleventh Circuit had reversed a federal jury award of $6 million to a shooting victim, ruling that the police officers were entitled to qualified immunity for their actions because no similar case had been tried.

            As a result, the officers could not have known what they were doing was wrong, the Eleventh Circuit reasoned in granting them qualified immunity. The Supreme Court’s order effectively puts the officers and the city back on the liability hook.

            Section 1983 is the federal statutory cause of action that allows a person to sue a government officer or entity for a deprivation of federal constitutional rights.

            Section 1983 states that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 42 U.S.C. § 1983 (1994).

            As a practical matter, qualified immunity led to the dismissal of a significant percentage of civil rights cases against public officials, until the Hope decision threw up its major roadblock.

            Live Free or Die --- Investigate, Incarcerate

            by rktect on Sat Mar 10, 2007 at 02:58:56 PM PST

            [ Parent ]

  •  Gonzales probably has a (6+ / 0-)

    portable incinerator that he takes around to demonstrate what he doesn't want others to do. Does anyone think we'll ever see his office's records and communications?

    "I count him braver who overcomes his desires than him who conquers his enemies; for the hardest victory is over self." --Aristotle

    by java4every1 on Sat Mar 10, 2007 at 06:21:03 AM PST

  •  Prospects of retention legislation (3+ / 0-)
    Recommended by:
    grrr, Rogneid, TheFatLadySings

    Discussed this with my Representative, Tammy Baldwin a couple weeks ago. with a seat on both Commerce and judiciary, she'll be influential.

    Her take is that some sort of retention bill will pass, and that it's more important at this point to fight for limiting language.

    Democratic Candidate for US Senator, Wisconsin, in 2012

    by ben masel on Sat Mar 10, 2007 at 06:39:51 AM PST

    •  It should be VERY limiting (4+ / 0-)
      Recommended by:
      Cho, grrr, Ari Mistral, Rogneid

      in that case. But more than anything, I think we should be paying better attention to the issue.

      Big boss ain't so big, just tall, that's all.

      by TheFatLadySings on Sat Mar 10, 2007 at 06:47:19 AM PST

      [ Parent ]

      •  Limits (3+ / 0-)
        Recommended by:
        paige, Rogneid, TheFatLadySings

        Once the data's retained, it becomes available, upon subpoena, not just for criminal cases, but for such matters as contested divorces.

        The industry's not happy with initial bills, as they'll be forced to pay for storage, and potentially to appear in courts to confirm that a file indeed was generated by a particular user. Likely, by the time a retention bill passes, it'll include some sort of grant to fund storage.

        Democratic Candidate for US Senator, Wisconsin, in 2012

        by ben masel on Sat Mar 10, 2007 at 06:58:59 AM PST

        [ Parent ]

  •  To any DoJ people working under Abu. (3+ / 0-)

    Fuck you and your fucking boss! I'm sorry, I'd had it with this asshole Gonzáles. I'd be inclined to use the epithet "Bush's Tejano," a la Mike Malloy, but that would insult all the wonderful Tejanos out there, including Kos-head pinche tejano.

    His ass can't be fired quickly enough!

    "Future archaeologists will be able to identify a `[Windows] Vista Upgrade Layer' when they go through our landfill sites." - from the UK Green Party

    by Ari Mistral on Sat Mar 10, 2007 at 06:54:01 AM PST

  •  Retain this! (0+ / 0-)


    "Future archaeologists will be able to identify a `[Windows] Vista Upgrade Layer' when they go through our landfill sites." - from the UK Green Party

    by Ari Mistral on Sat Mar 10, 2007 at 06:54:49 AM PST

  •  If they want to spread out such a large net (2+ / 0-)

    they should know that the larger the net, the more things slip through.  They don't seem to be targeting data, just collecting it and storing it.  That just sounds fishy and stupid.  It's the "we'll know what looks like child porn/terrorism when they see it" mentality.

    Abbey Bartlet for President '08 7.50, -7.79

    by Rogneid on Sat Mar 10, 2007 at 07:19:07 AM PST

    •  I don't believe they actually give a hoot (4+ / 0-)
      Recommended by:
      Cho, paige, Halcyon, anonymousredvest18

      about child porn. That's just way to get access to internet usage records in order to put an end to open communication.

      This is sort of like their trumpeting of Christianity and nationalism. They are not religious and they don't care about building a strong nation or strong communities. It's more like a senseless game of King of the Hill where the bully gets to stand on top until it starts raining.

      I think their real religions are egotism and nihilism. Nothing is real except for ME!

      Big boss ain't so big, just tall, that's all.

      by TheFatLadySings on Sat Mar 10, 2007 at 07:24:21 AM PST

      [ Parent ]

  •  I agree, it is not about child porn. It is about (3+ / 0-)

    control - being able to shut down information that damages the neocons' and Cheney's take-over (take-down)of our democracy.

    No doubt, we have many career government employees on every level who are doing heroic work combatting this administration.

  •  Oh damn... (2+ / 0-)
    Recommended by:
    Cho, TheFatLadySings

    the servers crashed again. Who knew that having that electromagnet so close to the servers would crash everything.

    "Computer. End holographic program...Computer? Computer?"

    by kredwyn on Sat Mar 10, 2007 at 08:59:23 AM PST

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