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