Thursday, September 30, 2004

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The Cyberlaw Clinic at Stanford Law School, which I run, won a landmark free speech ruling in OPG v. Diebold today. Diebold, the evoting machine manufacturer, erroneously claimed that our clients, two Swarthmore college students, and the Electronic Frontier Foundation's client, local ISP Online Policy Group, had infringed the company's copyrights by hosting or publishing internal memos that showed that the company knew its evoting machines did not work properly and were hiding this fact from county elections officials around the country. The court held that copyright owners will be penalized for using the Digital Millennium Copyright Act (DMCA) to essentially get a prior restraint against speech that the owner knows is not copyright infringing. This is the first ruling interpreting section 512(f) of the notice and takedown provisions of the DMCA. Click here for the press release. This is an unbelievable win that protects against using false claims of copyright infringment to squelch important public debate. Special thanks to my students who worked on this, our brave clients, Nelson and Luke who took risks to stand up for what they believed in, and to the EFF, for being great, especially Cindy Cohn, who masterfully argued the case.
Jennifer | 5:28 PM
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Wednesday, September 29, 2004

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Part of the Patriot Act, a central plank of the Bush Administration's war on terror, was ruled unconstitutional by a federal
judge on Wednesday.

U.S. District Judge Victor Marreo ruled in favor of the American Civil Liberties Union, which challenged the power the FBI has to demand confidential financial records from companies as part of terrorism investigations.

More after I read the opinion.



Jennifer | 11:42 AM
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Thursday, September 23, 2004

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The Department of Justice is accusing innocent people of terrorism. Its only a matter of time before innocent people are convicted for the offense, but the lives of the ones who have been exonerated are irreparably harmed. Meanwhile, how do we know that actual criminals aren't escaping detection by an Administration that doesn't seem to know what criminal activity really looks like?
Jennifer | 10:41 PM
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Wednesday, September 22, 2004

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A year from now, I'll be very surprised if there is not some grand square in Baghdad that is named after President Bush. -- September 22, 2003 remarks by Bush advisor Richard Perle
Jennifer | 3:46 PM
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Early this month, Cheney said that if Kerry wins the presidency, the country is in danger of another terrorist attack. Many people decried this assertion as beyond the bounds of appropriate politicking. It was certainly false. The statement implies that we are safe from terrorist attack now, and that a Kerry win would change that. And it was inflammatory, certainly. But was it beyond the bounds? Why is that sentiment any different from those put forward by proponents of the theory that we are safer under Bush or safer under Kerry? Why is it any different from the article on Salon this week, Whom Would Al-Qaida Vote For? which argues that Bush has been the best recruiter the group has ever had?

I think that by arguing that its "un-American" to say certain things (a view I think itself is un-American), and leaving it at that, we are missing the opportunity to address the underlying substantive question of safety. There are two visions here: an America that is safe because it is the only superpower in the world and will not hesitate to use that might in service of its perceived interests, or an America that is safe because it is the only superpower in the world and will not hesitate to work together with its friends and allies to bring economic prosperity, democracy and liberty to our fellow nations. Are we safer as the neighborhood bully, or as a good neighbor? People who think the bullies have it best will vote for Bush. I fear that might be the majority these days. But at least we will have offered a compelling counter-ideal.


Jennifer | 8:32 AM
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Tuesday, September 21, 2004

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Two weekends ago, I was in Cleveland, Ohio, which a careful demographic survey has revealed to be solidly Kerry country (one Bush bumpersticker to 8 for Kerry and several Kerry house signs.) Apparently the Southern part of the state, more religious, leans towards the more socially conservative Bush. Yet the entire state is relatively poor, and the Republican policies favor the rich. Is voting based on religious affiliation a vote on social issues, or a vote based on perceived "character"? Why aren't voters more willing to vote for economic policies that will favor them? Or are people fooled into thinking that the Bush plan to "cut taxes" helps the little guy? Is the attraction to Republicans a pervasive false consciousness as to one's own material economic reality?
Jennifer | 10:55 AM
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Monday, September 13, 2004

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Are the memos about Bush's National Guard record forged? What a disaster. The underlying argument is powerful and true; Bush pulled strings to get himself out of going to Vietnam but casually sends other peoples' children to their deaths in his inept war now. We didn't need these documents to make this point, but now that they are here, and possibly forged, this point gets buried. Conspiracy theorists, which I am not, might ask " qui bono?" Only Bush.
Jennifer | 3:51 PM
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Thursday, September 09, 2004

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Bush defied a direct order while in the National Guard. He hoped to get out of the Guard because he "didn't have time". The media is reporting this story as "Guard Records Found" or "Guard Service an Issue Again". Actually, its far more serious than that. The New York Times reports:

One document, a "memo to file" dated May 1972 , refers to a conversation between Colonel Killian and Lieutenant Bush when they "discussed options of how Bush can get out of coming to drill from now through November," because the lieutenant "may not have time."

May not have time? To serve his country? The documents also show that Bush pulled strings to get out of service, and refused direct orders:

Colonel Killian wrote in another report, dated Aug. 1, 1972, that he ordered Lieutenant Bush "suspended from flight status" because he failed to perform to standards of the Air Force and Texas Air National Guard and "failure to meet annual physical examination (flight) as ordered."

Colonel Killian also wrote in a memo that his superiors were forcing him to give Lieutenant Bush a favorable review, but that he refused.

"I'm having trouble running interference and doing my job," he wrote.

At this crucial juncture, the Democrats need to ask themselves "What would Karl Rove do?"

Karl Rove doesn't go for his opponent's weak points, he goes for their strengths. And Bush's strength is his character, his straight-talk, his trustability, his "you may not agree with me, but at least you know where I stand." The Democrats must use this incident to show that Bush is untrustworthy, not that he took advantage of Daddy's connections, but that for the past 30 years, he's been lying to cover that fact up. Once the American public realizes that this is true, the Democrats can argue that Bush lies to get his way on a lot of things. He lied about WMD in Iraq, he lied about an Iraq Al-Qaeda connection, he lied about Iraq seeking uranium in Niger, he lied about the toxicity of ground zero, he lied about the cost of the prescription drug benefit. Mary Beth Cahill, are you listening?

Jennifer | 11:51 AM
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Tuesday, September 07, 2004

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Brad's Newsweek story about a future holy alliance between Netflix and TiVo is here. The Internet is abuzz with the news: BoingBoing and /.
Jennifer | 4:53 PM
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Are our computer crime laws insane? Any sane person has to respond, "yes". Here's a post about the madness of "unauthorized access" as applied to wireless networks. Patrick Ryan has written an interesting law review article on the subject. Meanwhile, Representative Goodlatte has introduced a new spyware bill that builds on the "unauthorized access" language of the Computer Fraud and Abuse Act. But history shows that distinguishing on line legal activity from on line criminal activity by whether the user has express permission or not is folly. I argued this in my comments to the United States Sentencing Commission about sentencing under the CFAA, but you don't have to take my word for it. Even former DOJ attorney Orin Kerr agrees.


Jennifer | 1:50 PM
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Wednesday, September 01, 2004

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The DOJ is asking a federal court to reverse convictions for several Detroit men charged with being a "sleeper operational combat cell'' conspiring to launch attacks in the United States, Jordan and Turkey. Apparently, they aren't terrorists at all.

Following the convictions, read what John Ashcroft said here. Far from "bring[ing] us closer to our ultimate goal of victory in the war on terrorism", this case is a tragedy for the men who were convicted, and faced multiple years in prison. This is not the first time that the DOJ has taken the usually unheard of step of asking the court to reverse terrorism convictions it has already obtained. (The DOJ did this recently in one of my cases, U.S. v. McDanel, as well. But there, it was even more surprising because McDanel had already served his full sentence.) But here, it calls into question the competance of the DOJ. And, despite this epic mistake, the government insists on pursuing document fraud charges for forged immigration papers found during the terrorist investigation search.

Convictions for document fraud should not mask the larger problem here. The DOJ is overzealously pursuing weak or non-existent terrorism cases, and committing misconduct to get convictions. This means three things. A: Innocent people are being convicted of serious charges. B: The DOJ can't tell the difference between a real case and a bullshit case, so C: real terrorists are probably going free. In a world of limited resources, if you are convicting innocents, you are not convicting real perpetrators.

Moreover, we can't trust the DOJ to protect innocent people or catch terrorists if they commit misconduct. The DOJ's own internal investigation showed that the prosecutors in the case lied to improve their changes. How does this happen? I will read the internal investigation report, but I'm sure, as with the Abu Ghraib scandal, they will blame the local office and try to insulate Ashcroft and other higher ups from responsibility. In this investigative report from the Detroit Free Press, Robert Precht, an assistant dean at the University of Michigan said, “I most blame the win-at-all-costs atmosphere that (U.S. Attorney General John) Ashcroft has created.” I hope that the investigation looks to see whether there's more to it than that. The DOJ must have some oversight over its offices, especially in important cases like this.

In the meanwhile, its worthwhile reading what the lies were, and seeing how the adversarial system is a poor check on dishonest prosecutors, whether they be rogues in the Detroit office or the Attorney General himself. This is not a case where the lawyers were inept or under zealous. This is a case where the jury bought the fear mongering arguments of lead prosecutor Convertino (who is now suing the DOJ, which should be interesting) against the defense who told the jury, “Their witnesses have outright lied. (The government) has hidden evidence from you."

But what are defense attorneys to do when the government withholds relevant evidence from them? For example, the government's lead witness, Hmimssa, a "self described scam artist" under criminal indictment himself in an unrelated matter, was the source of most of the claims against these men. The following is from the Detroit Free Press article:

In November, after a change in the prosecution team, the government disclosed that Milton “Butch” Jones, a notorious drug dealer, told prosecutors in a letter more than a year before the trial that Hmimssa told him he had lied to investigators. ... Jones, who is awaiting trial in a federal death penalty case, kept detailed notes of conversations with Hmimssa he made while they shared adjoining cells in the Wayne County Jail. He said Hmimssa scoffed at an assertion by Ashcroft that the Detroit men had ties to September 11. ...

Convertino said he did not notify the judge or the defense of Jones’ statements because the letter “struck me as absurd on its face.” Jones wrote that Hmimssa called President Bush a drug dealer in one passage.

“That’s not a decision you get to make,” [Judge] Rosen scolded Convertino in a December hearing into the matter.

After listening to Jones and noting that he had knowledge of obscure facts about Hmimssa, Rosen said he found Jones credible. Hmimssa swore under oath he never talked to Jones about his case.

Precht said that because the case centered around Hmimssa’s credibility, the failure to turn over evidence related to him demands a retrial. “It’s hard to imagine a clearer case where the evidence may have made a difference,” he said.

The defense never would have found Jones on its own.

The S.F. Chronicle reports other lies:

In the new court papers, the Justice Department also divulged testimony from a recently retired CIA officer who directly called into question another of the government's key conclusions at trial -- that the alleged Detroit terror cell had made a surveillance sketch of a Turkish air base used by American fighter jets.

The retired CIA officer, William McNair, told the Justice Department he told Convertino during five to 10 conversations that CIA experts "did not believe the sketch conveyed any useful information" and was probably created by "someone who was not very well-trained."

The filing also noted that the government uncovered new evidence, recently reported by the AP, that FBI agents in Las Vegas and Detroit disagreed over whether a videotape found in the Detroit terror cell's apartment was surveillance footage of American landmarks, as jurors were told.

And a Tunisian man who appeared in the videotape of landmarks in New York, Las Vegas and California has told investigators the tape was amateur footage from a university student trip, not surveillance as prosecutors claimed.

How does the defense counter these arguments? You need resources to get experts to testify that the sketch is not useful. Where do you get these resources? Where do you find these experts? Does the jury believe them when they are told that the investigator with the FBI thinks the sketch is for surveillance, but the guy the defendant paid does not?

How does the defense find the Tunisian man? Especially when the DOJ is deporting people who challenge their case?

As the Bush Administration touts its record on terrorism at the RNC this week, "missteps" like this should be front page news.

Jennifer | 11:29 AM
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