Category Archives: Law: Free Speech

I’m on EFF’s Advisory Board, but I have nothing to do with this fine project.

EFF Sues for Information on Electronic Surveillance Systems

FBI Withholds Records on Tools to Intercept Personal Communications

Washington, D.C. – The FLAG Project at the Electronic Frontier Foundation (EFF) filed its first lawsuit against the Department of Justice Tuesday after the FBI failed to respond to a Freedom of Information Act (FOIA) request for records concerning DCS-3000 and Red Hook — tools the FBI has spent millions of dollars developing for electronic surveillance.

DCS-3000 is an interception system that apparently evolved out of “Carnivore,” a controversial surveillance system the FBI used several years ago to monitor online traffic through Internet service providers. One Department of Justice report said DCS-3000 was developed to “intercept personal communication services delivered via emerging digital technologies” and that it was used “as carriers continue to introduce new features and services.” According to the same report, Red Hook is a system to “collect voice and data calls and then process and display the intercepted information.”

The FLAG Project first filed its FOIA request for information about the surveillance systems on August 11, 2006. The FBI acknowledged receipt of the request, but the agency has not responded within the time limit required by law.

“Recent allegations of domestic spying by the U.S. government already have both lawmakers and the general public up in arms. Americans have a right to know whether the FBI is using new technology to further violate their privacy,” said EFF Staff Attorney Marcia Hofmann. “The Department of Justice needs to abide by the law and publicly release information about these surveillance tools.”

EFF’s FLAG Project, launched last month, uses FOIA requests and litigation to expose the government’s expanding use of technologies that invade privacy.

“Transparency is critical to the functioning of our democracy, especially when the government seeks to hide activities that affect the rights of citizens,” EFF Senior Counsel David Sobel, who directs the FLAG Project. “We have recently seen numerous instances where federal agencies have sought to conceal surveillance activities that raise serious legal issues.”

For the full FOIA suit filed against the Department of Justice:

http://www.eff.org/flag/dcs/dcs_complaint.pdf

For more on the FLAG Project:

http://www.eff.org/flag/

On Sunday NPR ran an item on the prosecution of Javed Iqbal for allegedly providing supposedly illegal access to al-Manar, Hezbollah’s satellite channel. The item summarized remarks from a spokesman for the Coalition Against Terrorist Media as follows:

He says the most dangerous thing aired are the calls to send money to Hezbollah. Al-Manar, he says, sometimes broadcasts Hezbollah bank account numbers to make wire transfers easier. That, he says, is when Al-Manar stops being a media outlet protected by First Amendment rights and becomes an active operational component of a terrorist group.

And, depending on the facts, he may have a point: If indeed the station isn’t just a news channel but a fundraising conduit for transactions prohibited by IEEPA, then it’s an open question whether it falls under the news exception to IEEPA. I doubt that one example of flashing a bank account number on screen would suffice to pollute the entire station (although the law in this area is so uncertain that I can’t even be absolutely certain of that); but it is very plausbile there is some level of regular and routinized fundraising conduct that would suffice to take al-Manar outside the news exception to IEEPA.

Convicting Mr. Iqbal on a conspiracy charge based on these facts ought to require that he know about the illegal conduct — otherwise he’s a bit like the rental car agency that rents to a bank robber — but this is the first account of the case I’ve hear that makes the government’s case sound like it might be going somewhere.

The NY Times had a story a story on Javed Iqbal, the al-Manar ‘Terrorist TV’ Case, with a stunning photo of the defendant’s back yard. With eight big satellite dishes, it’s safe to say this wasn’t a covert operation!

There’s a follow-on today, which notes that Mr. Iqbal is a Pakistani who has lived here for two decades.

I’ve been sent a copy of the indictment. It’s quite a surprising read: the sole charge is conspiracy to violate IEEPA, with the providing of the TV services being charged as the overt acts in furtherance of the conspiracy. This is either desperate or clever on the government’s part, or maybe just evil. Let me explain.

The indictment doesn’t say what the government alleges the conspiracy’s actual ultimate plan might be other than that it violates IEEPA. The selling of access and actual provision are not alleged to be actual crimes, but are just described as the overt acts in furtherance of the underlying (unspecified) conspiracy. The co-conspirators are said to be “others known and unknown” but no actual names are provided save those of the people involved in what appear to me to be the legal acts — at least insofar as IEEPA is concerned –of providing TV signals.

I am not a criminal law expert, but it’s pretty basic crim law that you can’t be convicted of conspiring to do something legal. You don’t actually have to comimt a crime, but one of your co-conspirators has to have had illegal plans of which you were a part. And what that illegal thing might be other than the service provisioning and installation isn’t visible from this document.

The affidavit for the search warrant isn’t much better; indeed in some ways it is worse. As far asa I can tell, the affidavit has two main claims of illegality. First, that the defendant said the broadcasts were illegal (note that the affiant himself never comes out and says they’re illegal in so many words himself — the affidavit is very artful in this regard; he sure makes it sound bad though). I don’t know if the defendant was misinformed, intimidated by the listing of al-Manar as a terrorist groupl, or if he was just puffing the goods by trying to make them sound illicit, but even honest error about crime does not a conspirator make.

In fact, to my admittedly untrained eye the affidavit has “shopping expedition” written all over it — it hints hard that there may be all sorts of secret, dangerous, encrypted messages hiding in the terrorist broadcasts or in the defendant’s computers that the government wishes to seize and hold for a long time. Yet it doesn’t give much in the way of specific reason for that belief except that there sure are a lot of computers, USB sticks, hard drives and other gear in there, and there are terrorists on the other end, and our experience says they must be up to something nasty.

Unlike the indictment, the search affidavit mentions that there might be a charge of material support under 18 USC sec. 2339b. On its face that would seem a potentially more plausible charge than the IEEPA allegation, for sec. 2239 provides in part:

Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d) (2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).

It’s a real stretch to say that just providing access to TV shows is “material support” but if money changed hands that might do it. Of course, finding a statutory hook for the government’s case only brings us back to the First Amendment issues I mentioned earlier, but this time more directly. It’s quite odd, therefore, that the indictment didn’t mention the material support charge at all, and I wouldn’t be surprised if this gets fixed in a superceding indictment.

But let’s back up a bit first: Other than alleging the re-sale of al-Manera TV — which it doesn’t clearly say is illegal — the indictment’s only other fact of substance is the defendant’s foreign travel to arab countries. I know that judges are pretty free and easy sometimes on warrants; I know that this is most likely to be true in a case where the government shouts ‘terrorism’. But I have to wonder — and would love to hear from someone more expert than me — whether this affidavit when stripped of all the heavy breathing and filler actually would survive a suppression montion. I’m guessing that one issue will be what the DA’s investigator believed or could have believed: did he have a good-faith reasonable belief that the transmissions were illegal, even if they were not?

Let’s back up some more. Suppose — just suppose — that the US Attorney’s office understood the First Amendment issue real well, and indeed have actually read IEEPA. I would expect nothing less from the office in the Southern District. Then either they are playing their cards real close to the chest, which remains possible, or this was a shopping expedition, which is also possible — or this was just a conscious abuse of the system to shut down something hateful. If it should turn out that the operation was conceived as a means of shutting down access to these broadcasts by seizing the equipment (return of which will take months if not years … and they usually don’t come back undamaged either…) then that would be a serious First Amendment violation. But it would be one that our legal system tends to ignore: it neither punishes the perpetrators nor well compensates the vicitms.

In the end, most of this is speculation. The only certain fact is that indictment is very vague on the key point of what exactly the crime might be. From reading it, it’s not clear to me whether the government claims that there was some further future plan of which these (legal) actions were but a part, or if the ultimate claim is only that these (in my opinion almost certainly legal) acts took place? If the claim is of some grander plan, it is awful vague — perhaps because the government knows or hopes that it’s seized the evidence or because they’re hoping to catch a bigger fish. If on the other hand the claim is that this indictment has the whole story, it’s a very worrying attempt to extend IEEPA where I don’t think it will go.

One minor note: the affidavit attached to the indictment describes the defendant as having a Pakistani passport and a US alien registration card (a green card), which is consistent with the NYT account noted above. So Mr. Iqbal is probably a permanent resident. I hope that takes us out of Kleindienst v. Mandel territory, for that is indeed an ugly place to be.

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Pdf of Complaint, and pdf of Search Warrant Affidavit.

When I saw the headline New Yorker Arrested for Providing Hezbollah TV Channel, my first though was, how ironic that the US government is so worried about protecting TV companies against copyright violations that they would use criminal law to protect Hezbollah’s mouthpiece Al-Manar.

But, it seems, it’s nothing of the sort:

A New York man was arrested yesterday on charges that he conspired to support a terrorist group by providing U.S. residents with access to Hezbollah’s satellite channel, al-Manar.

Javed Iqbal runs HDTV Corp., a Brooklyn-based company registered with the Federal Communications Commission that provides satellite television transmissions to cable operators, private companies, government organizations and individual customers.

…

The U.S. Treasury Department in March designated al-Manar a “global terrorist entity” and a media arm of the Hezbollah terrorist network. The designation froze al-Manar’s assets in the United States and prohibited any transactions between Americans and al-Manar.

It is always possible that the news story left something out; the government could be alleging perhaps that the retransmissions are sort of front for illegal funding of Hezbollah or even al-Manar. Bans on moving money to groups labeled as terrorist are, in the main, fully within the powers that Congress has given the President. But for present purposes — and mindful that this is the Bush administration we are talking about here — I’m going to take the reported facts at face value and assume that either no money changed hands or only the fair market value for the right to rebroadcast.

There are two obvious questions here: does the statutory regime in fact ban redistribution by a US citizen of a so-called “terrorist” news channel, and even if it does, would such a ban be constitutional.

Let’s start with the statutory question.

According to the press release announcing the designation of al-Manar a “global terrorist entity”, the action is based on Executive Order 13224; al-Manar has also been on the U.S. Department of State added al Manar to the Terrorism Exclusion List since December 2004.

EO 13224 relies for its authority on the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (IEEPA), the National Emergencies Act (50 U.S.C. 1601 et seq.), section 5 of the United Nations Participation Act of 1945, as amended (22 U.S.C. 287c)(UNPA), and section 301 of title 3, United States Code — and on the President’s inherent constitutional powers.

IIEPA is the key statute here, and I’m going to focus on it. The Emergencies act deals with the procedures for declaring and ending emergencies; it doesn’t, if I recall, give the President substantive authority relevant to this issue although I haven’t gone back today to check. The UN Participation Act gives authority to punish violations of UN sanctions set by the Security Council. I don’t know of any sanctions order that could be relevant here, but am happy to be educated if there is one. 3 USC sec. 301 gives the President the power to delegate powers, but doesn’t give any independent statutory authority.

IEEPA gives the President very broad powers to block transactions and freeze assets in the event he declares an emergency requires it. There is, however, a critical and relevant exception in IEEPA, contained in 50 USC sec. 1702:

(b) Exceptions to grant of authority
The authority granted to the President by this section does not include the authority to regulate or prohibit, directly or indirectly–

…

(3) the importation from any country, or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds. The exports exempted from regulation or prohibition by this paragraph do not include those which are otherwise controlled for export under section 2404 of the Appendix to this title, or under section 2405 of the Appendix to this title to the extent that such controls promote the nonproliferation or antiterrorism policies of the United States, or with respect to which acts are prohibited by chapter 37 of title 18.

The exception to the export ban excludes information relating to nuclear secrets and things which might trigger the espionage statutes. It doesn’t apply to imports at all. So, it’s pretty clear that IEEPA itself does NOT prohibit retransmission of foreign broadcasts, and probably doesn’t even prohibit paying the station a reasonable fee for the right to rebroadcast (as that would be an “indirect” prohibition or regulation).

As a result, at as described in the news article, this prosecution appears to be for conduct which is not in fact in violation of IEEPA, nor of Executive Order 13224 — unless the President has inherent constitutional power to block the importation of foreign speech. [Note that this entire discussion is separate from a different line of cases upholding the government’s right to require that some imported speech (Canadian evironmentalism, cf. Meese v. Keene, 481 U.S. 465 (1987)) be labeled “political propaganda”. That was about labels, not about importation.]

The constitutional question has two parts: First, if the President has any relevant inherent authority to criminalize speech on national security grounds; Second, whether the First Amendment would trump this authority if it even exists (and whether the First Amendment would trump whatever relevant statutory authority Congress might have granted that I might have failed to detect).

I have read a lot of pretty far-out stuff defending the President-as-King theory of the US Constitution, including some that appear to suggest the President could grab any of us off the street, call us enemy combatants, and lock us up in secret military prisons for all eternity and that courts might for some reason lack the jurisdiction, authority, or expertise to object, but I have yet to see anyone serious suggest that the President could create new types of criminal liability that would enforceable in actual courts where the Bill of Rights applies. I could waste a lot of time explaining why this is a ludicrous idea, but it’s really too silly to bother. (See my The Imperial Presidency’s New Vestments, 88 Nw. L. Rev. 1346 (1994) and Still Naked After All These Words, 88 Nw. L. Rev. 1420 (1994) if you want to know about how I approach these issues.)

Suppose, however, that I’m wrong about the statutory regime and Congress has purported to give the President the power to criminalize the importation of a foreign TV show or feed. Does the First Amendment allow that? I think the answer is that it does not, but here one proceeds with a slight degree of caution, as the final answer might depend on the content of the imported speech. At some point there is no question that Congress can criminalize foreign (or even domestic) speech: Imagine, for example, that the speech consisted of a series of targets, and the times that they should be bombed. Re-transmitting that sort of speech would undoubtedly create criminal liability (although the prior restraint problem could be much more complex). I am not as expert as some others in the intricacies of First Amendment law, but the standard answer is that in the absence of incitement to violence on fairly specific targets the speech cannot be criminalized. Thus, for example, “Kill Fred Smith” is a problem; “Death to America” or “Kill the people who oppose our just cause” might not be sufficient to overcome the test set out in Brandenburg v. Ohio, 395 U.S. 444 (1969) and many subsequent cases, depending on the full context.

None of the above seems that poorly understood or controversial; it is all stuff you would expect any federal prosecutor to know. Which really makes me wonder if I’ve missed a statute, or if there’s something else in the indictment.

I’ve written this all rather hurriedly, so I welcome comments and corrections and will update as needed.

First Update: The seller is not a US citizen: Mr. Iqbal is in America on a visa, his lawyer said. If the visa doesn’t include the right to work, and he’s selling access, that could be an immigration violation.

Secrecy News has the scoop at Recipients of “Leaks” May Be Prosecuted, Court Rules.

Basically — for the first time and I’d argue contrary to the First Amendment and legislative intent — the a US court has held in US v. Rosen (the AIPAC case), that private citizens who have no contractual obligations to keep government secrets, and no security clearances, can nonetheless be prosecuted under the Espionage Act for sharing classified information they receive.

Judge T.S. Ellis, III (ED Va – where else?) argues in his opinion that this ruling is but a narrow one since it requires that the private citizen know the information is classified and that release would be potentially detrimental to national security, intend to share it, and do so knowing that this is illegal.

Seems to me that Nixon would have used this argument to prosecute newspapers for publishing the Pentagon papers; perhaps, given what we know now, they might have won on the merits, but surely the fear of jail (for Espionage) would have acted as a substantial deterrent to that and other important publications.

Indeed, it’s not hard to see this ruling as pushing us well down the slippery slope to a world in which in practice only Official Leaks, those giving the pro-administration side of a story will be published.

Don’t look for the 4th Circuit, the most statist in the nation, to overturn this. But I’ll bet even Scalia will vote to overturn it, as will the Supreme Court with at least six judges in the majority.