12/08/2011 archive

Breaking News: Feds Falsely Censor Popular Blog For Over A Year, Deny All Due Process, Hide All Details…

by Mike Masnick, Tech Dirt

Thu, Dec 8th 2011 8:29am

Imagine if the US government, with no notice or warning, raided a small but popular magazine’s offices over a Thanksgiving weekend, seized the company’s printing presses, and told the world that the magazine was a criminal enterprise with a giant banner on their building. Then imagine that it never arrested anyone, never let a trial happen, and filed everything about the case under seal, not even letting the magazine’s lawyers talk to the judge presiding over the case. And it continued to deny any due process at all for over a year, before finally just handing everything back to the magazine and pretending nothing happened. I expect most people would be outraged. I expect that nearly all of you would say that’s a classic case of prior restraint, a massive First Amendment violation, and exactly the kind of thing that does not, or should not, happen in the United States.

…

The Dajaz1 case became particularly interesting to us, after we saw evidence showing that the songs that ICE used in its affidavit as “evidence” of criminal copyright infringement were songs sent by representatives of the copyright holder with the request that the site publicize the works — in one case, even coming from a VP at a major music label. Even worse, about the only evidence that ICE had that these songs were infringing was the word of the “VP of Anti-Piracy Legal Affairs for the RIAA,” Carlos Linares, who was simply not in a position to know if the songs were infringing or authorized. In fact, one of the songs involved an artist not even represented by an RIAA label, and Linares clearly had absolutely no right to speak on behalf of that artist.

Despite all of this, the government simply seized the domain, put up a big scary warning graphic on the site, suggesting its operators were criminals, and then refused to comment at all about the case. Defenders of the seizures insisted that this was all perfectly legal and nothing to be worried about. They promised us that the government had every right to do this and plenty of additional evidence to back up its claims. They promised us that the government would allow for plenty of due process within a reasonable amount of time. They also insisted that, after hearing nothing happening in the case for many months, it meant that no attempt to object to the seizure had occurred. Turns out… none of that was true.

…

Under the seizure laws, the government has 60 days from seizure to “notify” those whose property it seized (imagine having the government swoop in and take away your property, and not even being told why for two whole months). Once notified, the property owner has 35 days to file a claim to request the return of the property. If that doesn’t happen, the government can effectively just keep the property, so it tends to rely on intimidation and threats towards anyone who indicates plans to ask for their property back (usually in the form of threatening to file charges). However, if such a claim is filed, the government then has 90 days to start the full “forfeiture” process, which would allow the government to keep the seized property and never have to give it back. If the claim to return the property is filed and the government does not file for forfeiture, it is required to return the property. Thus seizures are supposedly used as a temporary part of the investigation, to stop criminal activity or to prevent the destruction of evidence. However, that’s not how things always play out in real life.

As we’d heard with a number of domain names that had been seized, the government began stalling like mad when contacted by representatives for domain holders seeking to get their domains back. ICE even flat out lied to the public, stating that no one was challenging the seizures, when it knew full well that some sites were, in fact, challenging. Out of that came the Rojadirecta case, but what of Dajaz1?

After continuing to stall and refusing to respond to Dajaz1’s filing requesting the domain be returned, the government told Dajaz1’s lawyer, Andrew P. Bridges, that it would begin forfeiture procedures (as required by law if it wanted to keep the domain). Bridges made clear that Dajaz1 would challenge the forfeiture procedure and seek to get the domain name back at that time. Then, the deadline for the government to file for forfeiture came and went and nothing apparently happened. Absolutely nothing. Bridges contacted the government to ask what was going on, and was told that the government had received an extension from the court. Bridges, quite reasonably, asked how that was possible without him, as counsel for the site, being informed of it or given a chance to make the case for why such an extension was improper.

He also asked for a copy of the the court’s order allowing the extension. The government told him no and that the extension was filed under seal and could not be released, even in redacted form.

He asked for the motion papers asking for the extension. The government told him no and that the papers were filed under seal and could not be released, even in redacted form.

He again asked whether he would be notified about further filings for extensions. The government told him no.

He then asked the US attorney to inform the court that, if the government made another request for an extension, the domain owner opposed the extension and would like the opportunity to be heard. The government would not agree.

And file further extensions the government did. Repeatedly. Or, at least that’s what Bridges was told. He sent someone to investigate the docket at the court, but the docket itself was secret, meaning there was no record of any of this available.

The government was required to file for forfeiture by May. The initial (supposed) secret extension was until July. Then it got another one that went until September. And then another one until November… or so the government said. When Bridges asked the government for some proof that it had actually obtained the extensions in question, the government attorney told Bridges that he would just have “trust” him.

Finally, the government decided that it would not file a forfeiture complaint — because there was no probable cause — and it let the last (supposed) extension expire. Only after Bridges asked again for the status of the domain did the government indicate that it would return the domain to its owner — something that finally happened today. Dajaz1.com is finally back in the hands of its rightful owner. This is really quite incredible, considering the “rush” with which it seized these domain names, claiming the urgency in stopping a crime in progress. But, of course, after realizing that it had no evidence to suggest a crime was ever in progress – there was absolutely no urgency to correct the error.

The level of secrecy in this case makes it sound like a terrorist investigation, not the censorship of a popular music blog. Normally, when there’s a lawsuit, the docket is available on PACER. Even in cases where things are filed under seal or everything is redacted, there’s at least a placeholder for them in PACER. This case does not exist anywhere that anyone can find. The docket was apparently kept hidden in a judge’s office in Los Angeles the whole time. No one knew this was going on, other than the US Attorney and the representatives of Dajaz1 (who still never saw the docket or the extension orders).

Let’s just take stock here for a second. We have the government clearly censoring free speech in the form of a blog that discussed the music world and was widely recognized for its influence in promoting new acts. The government seized the blog with no adversarial hearing and no initial due process. Then, rather than actually provide some sort of belated due process in the form of an adversarial hearing, it continued to deny any and all due process by secretly (even to Dajaz1’s own lawyer) extending the seizure without any way to challenge those extensions. All in all, the government completely censored a popular web site for over a year, when it had no real evidence for probable cause of infringement, as it had falsely claimed in the original rubber stamped affidavit.

(h/t DCblogger @ Corrente)

The two of the lady state attorney generals took the stage on the talk shows discussing their actions to protect their constituents from the thousands of illegal foreclosures that are crushing their states economies. Massachusetts AG Martha Coakley joined Dylan Ratigan for a lively chat about her lawsuit against five major banks and MERS. Later, AG Kamala Harris explained to Lawrence O’Donnell on “The Last Word” her reasons for breaking from the not-50 State Agreement being brokered by the Obama administration.

The ladies are really on a roll. Just this week it was announced that Ms. Harris has teamed up with Nevada’s State Attorney General, Catherine Cortez Masto, to look into a wide array of abuses, including mishandled documents, shoddy loan servicing, and the questionable ways in which mortgages were bundled and sold to investors. Like New York’s AG Eric Schneiderman and AG Beau Biden of Delaware, the ladies see strength in numbers.

This is the hard work protecting consumers that the Obama administration refuses to do.  

Freedom’s Just another word for nothin’ left to lose. ~ Kris Kristofferson, “Me And Bobby Mcgee“

They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety. ~ Benjamin Franklin

“We’re going to destroy it before they can get their hands on it. You can take away out lives but only we can take away out freedom.“ ~ Jon Stewart

“Punting the Pundits” is an Open Thread. It is a selection of editorials and opinions from around the news medium and the internet blogs. The intent is to provide a forum for your reactions and opinions, not just to the opinions presented, but to what ever you find important.

Thanks to ek hornbeck, click on the link and you can access all the past “Punting the Pundits”.

Joseph E Stiglitz: What can save the euro?

Growth is needed in order to save the euro, not sermons and homilies, says Nobel Prize-winning economist.

New York, New York – Just when it seemed that things couldn’t get worse, it appears that they have. Even some of the ostensibly “responsible” members of the eurozone are facing higher interest rates. Economists on both sides of the Atlantic are now discussing not just whether the euro will survive, but how to ensure that its demise causes the least turmoil possible.

It is increasingly evident that Europe’s political leaders, for all their commitment to the euro’s survival, do not have a good grasp of what is required to make the single currency work. The prevailing view when the euro was established was that all that was required was fiscal discipline – no country’s fiscal deficit or public debt, relative to GDP, should be too large. But Ireland and Spain had budget surpluses and low debt before the crisis, which quickly turned into large deficits and high debt. So now, European leaders say that it is the current-account deficits of the eurozone’s member countries that must be kept in check.

New York Times Editorial: Hobbling the Fight Against Terrorism

Lawmakers from the House and Senate are working on provisions in the military budget bill that would take the most experienced and successful antiterrorism agencies – the F.B.I. and federal prosecutors – out of the business of interrogating, charging and trying most terrorism cases, and turn the job over to the military.

These new rules would harm the justice system and national security. They would hinder intelligence-gathering, make it harder to track down terrorists and make other countries less likely to cooperate.

Those are not our conclusions, although we strongly agree. They are the views of James Clapper, the director of national intelligence; Robert Mueller III, the director of the Federal Bureau of Investigation; and Lisa Monaco, the assistant attorney general for national security. The defense secretary, Leon Panetta, who used to run the intelligence services, has said that the military doesn’t want this responsibility. Lawmakers are ignoring them.

(emphasis mine)

So is Obama. He requested the language

The thoroughly discredited Chicago (Freshwater) School of Economics denies that these even exist.

It’s not just a river in Egypt, it’s also faith based not science in contradiction of actual factual evidence-

Wikipedia–

A deflationary spiral is a situation where decreases in price lead to lower production, which in turn leads to lower wages and demand, which leads to further decreases in price. Since reductions in general price level are called deflation, a deflationary spiral is when reductions in price lead to a vicious circle, where a problem exacerbates its own cause. The Great Depression was regarded by some as a deflationary spiral. A deflationary spiral is the modern macroeconomic version of the general glut controversy of the 19th century. Another related idea is Irving Fisher’s theory that excess debt can cause a continuing deflation. Whether deflationary spirals can actually occur is controversial, with its possibility being disputed by freshwater economists (including the Chicago school of economics) and Austrian School economists.

In Japan–

Systemic reasons for deflation in Japan can be said to include:

• Tight monetary conditions. The Bank of Japan kept monetary policy loose only when inflation was below zero, tightening whenever deflation ends.

…

• Fallen asset prices. In the case of Japan asset price deflation was a mean reversion or correction back to the price level that prevailed before the asset bubble. There was a rather large price bubble in equities and especially real estate in Japan in the 1980s (peaking in late 1989).

• Insolvent companies:  Banks lent to companies and individuals that invested in real estate. When real estate values dropped, these loans could not be paid. The banks could try to collect on the collateral (land), but this wouldn’t pay off the loan. Banks delayed that decision, hoping asset prices would improve. These delays were allowed by national banking regulators. Some banks made even more loans to these companies that are used to service the debt they already had. This continuing process is known as maintaining an “unrealized loss”, and until the assets are completely revalued and/or sold off (and the loss realized), it will continue to be a deflationary force in the economy. Improving bankruptcy law, land transfer law, and tax law have been suggested (by The Economist) as methods to speed this process and thus end the deflation.

• Insolvent banks:  Banks with a larger percentage of their loans which are “non-performing”, that is to say, they are not receiving payments on them, but have not yet written them off, cannot lend more money; they must increase their cash reserves to cover the bad loans.

• Fear of insolvent banks:  Japanese people are afraid that banks will collapse so they prefer to buy (United States or Japanese) Treasury bonds instead of saving their money in a bank account. This likewise means the money is not available for lending and therefore economic growth. This means that the savings rate depresses consumption, but does not appear in the economy in an efficient form to spur new investment. People also save by owning real estate, further slowing growth, since it inflates land prices.

Sound familiar?  It should.

Anxious Greeks Emptying Their Bank Accounts

Many Greeks are draining their savings accounts because they are out of work, face rising taxes or are afraid the country will be forced to leave the euro zone. By withdrawing money, they are forcing banks to scale back their lending — and are inadvertently making the recession even worse.

By Ferry Batzoglou in Athens, Der Spiegel

12/06/2011

(T)he outflow of funds from Greek bank accounts has been accelerating rapidly. At the start of 2010, savings and time deposits held by private households in Greece totalled €237.7 billion — by the end of 2011, they had fallen by €49 billion. Since then, the decline has been gaining momentum. Savings fell by a further €5.4 billion in September and by an estimated €8.5 billion in October — the biggest monthly outflow of funds since the start of the debt crisis in late 2009.

…

The hemorrhaging of bank savings has had a disastrous impact on the economy. Many companies have had to tap into their reserves during the recession because banks have become more reluctant to lend. More Greek families are now living off their savings because they have lost their jobs or have had their salaries or pensions cut.

In August, unemployment reached 18.4 percent. Many Greeks now hoard their savings in their homes because they are worried the banking system may collapse.

Those who can are trying to shift their funds abroad. The Greek central bank estimates that around a fifth of the deposits withdrawn have been moved out of the country. “There is a lot of uncertainty,” says Panagiotis Nikoloudis, president of the National Agency for Combating Money Laundering.

…

Nikoloudis has detected a further trend. At first, it was just a few people trying to withdraw large sums of money. Now it’s large numbers of people moving small sums. Ypatia K., a 55-year-old bank worker from Athens, can confirm that. “The customers, especially small savers, have recently been withdrawing sums of €3,000, €4,000 or €5,000. That was panic,” she said.

…

The shrinking Greek bank deposits compare with bank loans totalling €253 million. Analysts say the share of bad loans could rise to 20 percent next year, or €50 billion, as a result of the recession. This in turn will worsen the already pressing liquidity problems faced by Greek banks.

Did I mention thoroughly discredited?

Germany next.

This is your morning Open Thread. Pour your favorite beverage and review the past and comment on the future

Find the past “On This Day in History” here.

December 8 is the 342nd day of the year (343rd in leap years) in the Gregorian calendar. There are 23 days remaining until the end of the year.

John and I are in our Dakota kitchen in the middle of the night. Three cats – Sasha, Micha and Charo – are looking up at John, who is making tea for us two.

Sasha is all white, Micha is all black. They are both gorgeous, classy Persian cats. Charo, on the other hand, is a mutt. John used to have a special love for Charo. “You’ve got a funny face, Charo!” he would say, and pat her.

“Yoko, Yoko, you’re supposed to first put the tea bags in, and then the hot water.” John took the role of the tea maker, for being English. So I gave up doing it.

It was nice to be up in the middle of the night, when there was no sound in the house, and sip the tea John would make. One night, however, John said: “I was talking to Aunt Mimi this afternoon and she says you are supposed to put the hot water in first. Then the tea bag. I could swear she taught me to put the tea bag in first, but …”

“So all this time, we were doing it wrong?”

“Yeah …”

We both cracked up. That was in 1980. Neither of us knew that it was to be the last year of our life together.

Those of you that read this regular series know that I am from Hackett, Arkansas, just a mile or so from the Oklahoma border, and just about 10 miles south of the Arkansas River.  It was a redneck sort of place, and just zoom onto my previous posts to understand a bit about it.

Friday past, instead of posting Popular Culture I posted the first half of a tribute to my mum because that would have been her 90th birthday.  Tonight I post the second half of that tribute.

Since this the 70th anniversary of the bombing of the fleet at Pearl Harbor, I have a Pearl Harbor story about her and my dad as well.  I sort of jumped to 1957 last time, so we need to backtrack a little.

As per Sen. Karl Levin, Obama requested that the language barring the indefinite detention of US citizens be removed from the National Defense Authorization Bill. This doesn’t exonerate Levin or the other 93 Senators who voted “aye” on this travesty of legislation.

We have only a few days to speak up to Congress before the President signs NDAA Section 1031, permitting citizen imprisonment without evidence or a trial. Congress plans to give it to him to sign by Dec 9. But if we act urgently to raise awareness among our friends, family, and colleagues, we can still prevent this. Here is what we can do:

1) Americans must know about this to stop it. Urgently pass this petition as widely as possible: http://www.change.org/petition… … – Contact the media by any means available to you. ZERO news stories have covered this Chairman Levin clip yet!

2) Congress can still block the law before December 9. Write and call your Representative and Senator telling them to stop NDAA Section 1031.

Contact your Representative: http://writerep.house.gov/writ…

Contact your Senator: http://www.senate.gov/general/…

3) Write and call the White House to tell the President you won’t sit by and watch NDAA Section 1031 become law: http://www.whitehouse.gov/cont…

4) Stay smart — To slow down journalists and concerned citizens, it appears Section 1032 was deliberately crafted to distract from Section 1031. However, section 1032 is NOT the citizen imprisonment law. Disturbingly, this confusion is helping Section 1031 to slip by the American people. Do NOT fall for the misdirection, stay informed and urgently work to stop NDAA Section 1031.

We need to stop Obama and Congress from trashing the Constitution.

Up Date 12.8.2011: The web site Lawfare has an excellent two part analysis and side by side comparison of the House and Senate versions of NDAA. Written by Benjamin Wittes, it is an enlightening read on the flaws of both bills:

As the House of Representatives and the Senate head to conference on the NDAA, I thought it might be useful to analyze the similarities and differences between the counterterrorism provisions of the two versions of the bill. People sometimes talk about the NDAA as though both houses are on the same track. And there are some similar themes. But the two bills are also quite different. And these difference give rise to opportunities in conference: opportunities to emerge with far better policy than either bill presents on its own, and opportunities for mischief as well.

In this pair of posts, which is organized thematically and loosely according to the sequence of provisions in the House version of the bill, I am going to do a kind of side-by-side analysis. In each section that follows, I will start with a discussion of the House bill, which is longer and more involved, then describe how the analogous Senate provision (if one exists) differs. I will then discuss what I think the optimal realistic policy outcome looks like given the two versions. I am not going to rehash the merits or lack thereof of the specific provisions, all of which we have discussed elsewhere. My point is simply to highlight where the Congress has a clear position and where the houses are reading from different playbooks.

The Senate version of the bill is available here (pdf), with the relevant section running from pp. 426-445. The House version of the bill is available here (pdf) and runs from pp. 567-603. As this will get long, I will break it up into two posts.

House-Senate Side-by-Side of NDAA Provisions: Part I

House-Senate Side-by-Side of NDAA Provisions: Part II