Yahoo has disclosed receipt of three national security letters (FBI requests for data that Yahoo is typically barred from sharing) and published redacted copies of the letters online for anyone to see.
The company says that the move "marks the first time any company has publicly acknowledged receiving an NSL following the reforms of the USA Freedom Act."
The bill was created last year allowing companies to gag orders relating to National Security Letters.
Gag orders are a form of prior restraint that prohibit parties, lawyers, prosecutors, witnesses, law enforcement officials, jurors and others from talking to the press.
Frequently such orders are sought by one party in a case, although judges may issue gag orders on their own initiative.
Engadget reports:
It takes some doing to get permission to acknowledge the receipt of a letter, too -- Yahoo says that the FBI needs to review if the nondisclosure provision is still necessary for each specific NSL before allowing a company to publish it, and even then certain information needs to be redacted before being made available to the public.
Still, when companies do get these gag orders lifted, it allows them to notify the investigated parties that the FBI was looking into their data, and it's a big win for transparency overall.
***
So how did these few people get so much power over the many?
Gag orders on the press.
The Supreme Court
repeatedly has made clear that the courts may rarely, if ever, prevent
the press from reporting on court proceedings and documents.
The Court ruled in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976) that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” and are presumed to be unconstitutional.
Such an gag order is a “most extraordinary remedy” that may be used only in ”exceptional cases” where “the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures.”
CBS Inc. v. Davis 510 U.S. 1315, 1317 (1994) (Blackmun, J., in chambers) (citations omitted).
Prior restraints on covering court proceedings and records may indeed never be permissible, because “[w]hat transpires in the court room is public property …. Those who see and hear what transpired can report it with impunity.”
Craig v. Harney, 331 U.S. 367, 374 (1947).
Indeed, courts have refused to gag coverage of court proceedings even when a media organization is a party to the underlying case.
The court in Freedom Communications v. Superior Court, 167 Cal. App. 4th 150, 152 (2008) thus overturned “an order enjoining [a media company] from reporting on trial testimony in a case in which it is the defendant.”
But in Seattle Times Company v. Rhinehart, 467 U.S. 20, 33 (1984), the Supreme Court noted that a newspaper party could not publish information it obtained in discovery because “pretrial depositions and interrogatories are not public components of a civil trial.”
In an appeal of a gag order, the media must show either that it will probably succeed on the merits in its appeal or that it has presented a substantial case on the merits and that the balance of the equities weighs heavily in favor of granting a stay of the order.
U.S. v. McKenzie, 697 F.2d 1225, 1226 (5th Cir. 1983).
***
A person, named Timothy Graham, matching his profile robbed another bank in November.
The investigators, however, didn't have enough evidence to prove that Graham was indeed the same person who robbed the other bank as well.
The cops contacted Google and utilised a feature of Maps that builds a comprehensive history of where a user has been -- information that is proved valuable to police and advertisers alike.
The publication claims that in the past few months, police have used this Maps' feature in several other instances as well.
From the report: Investigators had already gone to Graham's wireless carrier, AT&T, but Google's data was more precise, potentially placing Graham inside the bank at the time the robbery was taking place.
"Based on my training and experience and in consultation with other agents," an investigator wrote, "I believe it is likely that Google can provide me with GPS data, cell site information and Wi-fi access points for Graham's phone."
It's not clear whether either of the public warrants were filled.
No Google-based evidence was presented in Graham's trial, and the other suspect plead guilty before a full case could be presented.
Still, there's no evidence of a legal challenge to either warrant.
There's also reason to think the investigators' legal tactic would have been successful, since Google's policy is to comply with lawful warrants for location data.
While the warrants are still rare, police appear to be catching on to the powerful new tactic, which allows them to collect a wealth of information on the movements and activities of Android users, available as soon as there's probable cause to search.
The Court ruled in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976) that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” and are presumed to be unconstitutional.
Such an gag order is a “most extraordinary remedy” that may be used only in ”exceptional cases” where “the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures.”
CBS Inc. v. Davis 510 U.S. 1315, 1317 (1994) (Blackmun, J., in chambers) (citations omitted).
Prior restraints on covering court proceedings and records may indeed never be permissible, because “[w]hat transpires in the court room is public property …. Those who see and hear what transpired can report it with impunity.”
Craig v. Harney, 331 U.S. 367, 374 (1947).
Indeed, courts have refused to gag coverage of court proceedings even when a media organization is a party to the underlying case.
The court in Freedom Communications v. Superior Court, 167 Cal. App. 4th 150, 152 (2008) thus overturned “an order enjoining [a media company] from reporting on trial testimony in a case in which it is the defendant.”
But in Seattle Times Company v. Rhinehart, 467 U.S. 20, 33 (1984), the Supreme Court noted that a newspaper party could not publish information it obtained in discovery because “pretrial depositions and interrogatories are not public components of a civil trial.”
In an appeal of a gag order, the media must show either that it will probably succeed on the merits in its appeal or that it has presented a substantial case on the merits and that the balance of the equities weighs heavily in favor of granting a stay of the order.
U.S. v. McKenzie, 697 F.2d 1225, 1226 (5th Cir. 1983).
***
Police Are Filing Warrants For Android's Vast Store Of Location Data (theverge.com)
The Verge is reporting about a man who robbed a Bank of America office in Romana, California.
A person, named Timothy Graham, matching his profile robbed another bank in November.
The investigators, however, didn't have enough evidence to prove that Graham was indeed the same person who robbed the other bank as well.
The cops contacted Google and utilised a feature of Maps that builds a comprehensive history of where a user has been -- information that is proved valuable to police and advertisers alike.
The publication claims that in the past few months, police have used this Maps' feature in several other instances as well.
From the report: Investigators had already gone to Graham's wireless carrier, AT&T, but Google's data was more precise, potentially placing Graham inside the bank at the time the robbery was taking place.
"Based on my training and experience and in consultation with other agents," an investigator wrote, "I believe it is likely that Google can provide me with GPS data, cell site information and Wi-fi access points for Graham's phone."
It's not clear whether either of the public warrants were filled.
No Google-based evidence was presented in Graham's trial, and the other suspect plead guilty before a full case could be presented.
Still, there's no evidence of a legal challenge to either warrant.
There's also reason to think the investigators' legal tactic would have been successful, since Google's policy is to comply with lawful warrants for location data.
While the warrants are still rare, police appear to be catching on to the powerful new tactic, which allows them to collect a wealth of information on the movements and activities of Android users, available as soon as there's probable cause to search.
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