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January 2019
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Gov't Used An Ambiguously-Worded Tweet As The Basis For The Raid Of NSA Contractor's House

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The prosecution of former NSA contractor Hal Martin continues. Martin somehow managed to exfiltrate sensitive documents and code for nearly 20 years without the NSA noticing. It finally started paying attention after its hacking tools and exploits made their way into the hands of the public via the "Shadow Brokers." These tools then made their way into the computers of the public, wreaking worldwide havoc and giving the leaky agency -- whose literal middle name is "Security" -- another PR black eye.

Hal Martin was suspected of handing over tools to the Shadow Brokers but the charges against him are solely related to the mishandling of classified info, indicating the feds no longer believe Martin was involved. But this original suspicion was apparently enough to justify the FBI raid of Martin's residence, according to the federal judge handling his case. The probable cause appears to have been generated by a tweet from Martin's Twitter account, at least according to what can be gleaned from the redacted order [PDF] handed down by Judge Richard Bennett. Josh Gerstein of Politico has the details.

Passages in the decision from U.S. District Court Judge Richard Bennett were deleted from a version made public by the court, but the remaining details suggest that investigators believed Martin was offering sensitive information to someone online shortly before a nebulous internet-based entity, the Shadow Brokers, released NSA hacking tools in August 2016 through the attention-grabbing technique of an online auction.

“In these messages, @HAL_999999999 asked for a meeting with the [redacted] and stated ‘shelf life, three weeks,’” Bennett wrote, describing the government’s assertions in court filings still under seal. “The Defendant’s Twitter messages … were sent just hours before what was purported to be stolen government property was advertised and posted on multiple online- content-sharing sites, including Twitter.”

These details have been made public as the result of Martin's attempt to suppress the evidence gathered against him. The court notes the tweet could have had a more innocuous meaning, but given the circumstances and the timing, it was not unreasonable for the FBI to believe Martin may have been involved in the leaking of classified NSA exploits.

That's not the only rejection handed to Martin. The court also denies his request to have cell-site location info obtained without a warrant suppressed, noting that the government obtained this data before the Supreme Court handed down its decision in Carpenter.

However, a key bit of evidence is no longer the government's to use: Martin's own statements. The court says the government illegally obtained these statements by not properly Mirandizing Martin prior to questioning him. There is no doubt Martin was in custody at the time he was questioned without a Miranda warning. The government denies Martin was ever taken into custody, but the court points out a person who doesn't feel they're free to go is being held against their will, which is all it takes to define "custody."

In this case, the facts demonstrate ~at a reasonable person in the Defendant's position would have perceived a police dominated atmosphere before and during the interrogation. The Defendant was initially approached by nine SWAT agents dressed in protective gear, some of whom had their guns drawn at the Defendant... Multiple other officers were also on the scene, including eight FBI agents and three State Trooper vehicles - a fact that "goes a long way towards making the suspect's home a police dominated atmosphere." The Defendant was immediately placed face down on the ground and handcuffed, "demonstrating that the officers sought out [the Defendant] and had physical dominion over him."

Although the Defendant's handcuffs were removed prior to the interrogation, "the experience of being singled out and handcuffed would color a reasonable person's perception of the situation and create a reasonable fear that the handcuffs could be reapplied at any time."

Further, after his initial detention, the Defendant was interrogated by three agents for approximately four hours.ll During the interrogation, the agents confronted the Defendant with incriminating evidence discovered on his property, which may certainly cause a reasonable person to feel compelled to cooperate with the police. Moreover, the Defendant's freedom of movement was significantly restricted during the interrogation. Indeed, he was only permitted to leave the interrogation space once -- i.e., when he went to his home office to help Hajeski access his computer equipment -- at which time he was accompanied by agents. In addition, the Defendant was isolated from his partner until the end of the interrogation -- a tactic that the Supreme Court has recognized as one of the distinguishing features of a custodial interrogation.


Taken together, these facts demonstrate that a reasonable person in the Defendant's position would have felt that he was not free to leave.

The government still records a win on most of the suppression motion. It's difficult to tell how solid the underlying warrant affidavit actually is since it -- along with several other filings -- are still under seal. It's also unclear how much ammo Martin's defense had when mounting this challenge. If the government was granted the opportunity to engage in ex parte presentations of evidence, Martin's team could be working blind.

His team may be working partially blind anyway. There's reason to believe the government is now a whole lot more cagier about its classified/sensitive evidence after accused CIA hacking tool leaker Josh Shulte was found to be leaking documents from prison -- documents he apparently obtained as part of the government's discovery obligations. It will likely be months before the public sees any part of the government's warrant affidavit. It may be years before anyone other than this court sees all of it. Still, an ambiguously-worded tweet seems like pretty thin probable cause, even if its timing seemed to align with the Shadow Brokers' actions at the time the warrant was sought.

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posted at: 12:18am on 03-Jan-2019
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Antipiracy Outfits Routinely Claim Copyright Infringement Against Sites That Simply Report When Torrents Are Released

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Whenever we hear new or renewed calls for more ways for antipiracy outfits and copyright holders to extrajudicially get content and/or sites taken down, there always seems to be one curious omission in the discussion: that antipiracy outfits generally suck at identifying actual infringing content. This is a strange omission, considering that creating ways for content to be taken down without a court's oversight rests the entire reputation for this practice on reports of infringement being accurate. Those of us who have taken to screaming how ripe all of this is for abuse do so because of the collateral damage it causes. Claims to the contrary have to rely on reports generally being accurate.They aren't. In fact, they aren't even close. It's not going too far to say that antipiracy groups of all entities should be well-suited in identifying piracy. And, yet, they quite often target innocent sites that simply post factual information that does not include pirated files, including sites that do factual reporting on torrent availability. One such site is SweTracker, which focuses on detailing Nordic torrent releases, when they become available, and to whom they are attributed.

While many PreDb-style sites monitor for ‘Scene’ releases using information culled from IRC, SweTracker monitors BitTorrent trackers and publishes information on who won the ‘race’ to put content online first. It does not link to any pirate content whatsoever but anti-piracy companies regularly report the site to Google.
And, yet, SweTracker has been reported to Google hundreds of times in the past year alone as hosting illegal content. These reports have largely flooded in from antipiracy outfits, despite the simple fact that SweTracker hosts no infringing files and instead only reports on factual information. The site's operator mostly shrugs his shoulders at all of this, but also points the general impression he has that antipiracy outfits don't have a clue as to what they're doing.
“My personal experience with [anti-piracy companies] is that they don’t really know how stuff works. They often state that users can download or stream movies directly from SweTracker, but that’s simply not true,” he explains. “But, I try to make life easy and do remove the releases they ask me to remove. They have contacted me via email several times.”
It almost goes without saying that SweTracker isn't some outlier in all of this. It's also worth noting that this sort of harassment doesn't typically end with a sternly worded email. Instead, Google often errs on the side of delisting the links in its search results, and antipiracy outfits often times go to site host providers and try to get the sites taken down entirely.
PreDb.org states clearly on its main page that “There are absolutely NO downloads of copyright-protected works, hyperlinks to downloads, torrent files, magnet links, nzb files or similar content on any part of this web site” but that doesn’t prevent complaints.Google’s Transparency Report indicates that at the time of writing, PreDb.org has had 2,204 URLs reported by content and anti-piracy companies, with Google removing the links from its indexes approximately 65% of the time.
To be clear, antipiracy outfits are censoring simple factual data in the name of copyright. Whether or not you find the factual data in question interesting or useful is entirely besides the point and doesn't make a lick of difference in the validity of the takedowns. Here we are, fresh into 2019, with rightsholders and antipiracy groups waging a clusterbomb war against piracy as their precision in doing so goes largely unquestioned, all while very real collateral damage is endured by innocent sites.Keep that in mind whenever copyright maximalists ask for just a bit more power to censor the internet.

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