A Mess In The House: Dirty Pool As Rep. Schiff Inserts Loophole To Help The FBI Spy On You
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As the debate continues over the renewal of some Patriot Act provisions for NSA surveillance techniques, the House now has a chance to correct a failure by the Senate, by one measly vote, to require a warrant for the FBI to go sifting through your internet histories that the NSA scooped up along the way. The intelligence community refuses to reveal how often this is done, but Senator Wyden is indicating that it's a lot more than you think -- and he's been right pretty much every time he's made those suggestions.It's now up to the House, and while Rep. Lofgren had a version of the warrant requirement amendment, some petty political squabbling from Democratic leadership threatened to quash it -- mainly by Rep. Adam Schiff inserting a massive loophole to allow for more warrantless surveillance. Earlier on Tuesday it was reported that, after a long weekend of haggling, it appeared that a vote will be allowed on Lofgren's Amendment and that the language had been cleared up to the point that even Senator Wyden backed it:After extensive bicameral, bipartisan deliberations, there will be a vote to include a final significant reform to Section 215 [of the USA Patriot Act] that protects Americans' civil liberties, Lofgren, a Democrat of California, said. Without this prohibition, intelligence officials can potentially have access to information such as our personal health, religious practices, and political views without a warrant, she added.[...]The Lofgren-Davidson amendment will require the FBI to obtain a warrant even if there's only a possibility that the data it seeks is tied to a U.S. person. If the government wishes to access the IP addresses of everyone who has visited a particular website, it could not do so without a warrant unless it can guarantee that no U.S. persons will be identified. Wyden's support was seen as critical, because if he felt that Schiff had torpedoed the Amendment he wouldn't support the amendment. So the original reports saying that he was on board, was a good sign. He even put out a detailed statement in support.Then, the full language came out, and Schiff appeared to torpedo the whole deal anyway by telling the NY Times that the amendment didn't really do anything anyway:But in his own statement, Mr. Schiff put forward a narrower emphasis. Stressing the continued need to investigate foreign threats, he described the compromise as banning the use of such orders "to seek to obtain" an American's internet information. Soon after Wyden pulled his support of the bill, realizing that Schiff was making a ridiculous interpretation to allow for more spying on American's internet browsing habits:The House Intelligence Committee chairman's assertion that the Lofgren-Davidson amendment does not fully protect Americans from warrantless collection flatly contradicts the intent of Wyden-Daines, and my understanding of the amendment agreed to earlier today. It is now clear that there is no agreement with the House Intelligence Committee to enact true protections for Americans' rights against dragnet collection of online activity, which is why I must oppose this amendment, along with the underlying bill, and urge the House to vote on the original Wyden-Daines amendment, Wyden said. Again, however, I remain perplexed about Schiff trying to water this down. Remember, Schiff was literally the House manager of the Trump impeachment campaign, and more than anyone, Schiff has a front row seat to how this President has politicized all aspects of government at his disposal. You would think that's a good enough reason to pass a bill that would protect American citizens from being spied on by the FBI without a warrant (as, I should mention, the Constitution requires). Why would that be at all controversial? I get that Schiff comes from a background where he has traditionally had a kneejerk support for greater law enforcement and intelligence powers -- but given what he knows about this administration, it's crazy that he wouldn't want to restrict those powers in the hands of someone who still regularly seems to threaten his political opponents, including Schiff.Of course, as all of this was happening, the President himself urged his supporters in Congress to vote against the bill anyway, so who the hell knows what's going on any more anyway. What is clear is that Congress had a real chance to make sure the FBI had to live under the 4th Amendment, and it appears that it has failed to do so, so far.
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posted at: 12:00am on 27-May-2020
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Judge Sends Devin Nunes' SLAPP Suits Against CNN And Washington Post Off To Their Proper Venues
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It appears that at least one judge handling Devin Nunes' various SLAPP suits in Virginia has caught on to at least some of what's going on here. Judge Robert E. Payne has now transferred two of his lawsuits -- the ridiculous defamation filing against CNN and the even sillier SLAPP suit against the Washington Post -- to better venues. In both cases, the judge seems pretty fed up with Nunes' lawyer, Stephen Biss, opening both by quoting what was said to Biss in yet another one of his silly SLAPP suits:It is with chagrin that [the] Court must begin to address this motion by observing that . . . Plaitiff[] engages in ad hominin attacks against [CNN and others in the Amended Complaint,] which the Court cannot tolerate. . . . The Court reminds Counsel for Plaintiff[] that, as an officer of the Court, he may be sanctioned for engaging in conduct unbefitting of this Court. There's another version of this in the Washington Post transfer, but with the defendants there rather than CNN.For the CNN case, here's the order shipping the case off to the Southern District of New York instead of Virginia.The court went through various tests that all seemed to raise the question: why is Nunes filing this case in this court?It is undisputed that the Eastern District of Virginia is notNunes's home forum. (ECF No. 20 at 7 (Nunes stating that he "isa citizen of California").) That Nunes "works at the Capitolwithin a few minutes' drive of Virginia," (id.), and "participatesin oversight of the U.S. national security apparatus, includingthe intelligence-related activities of seventeen agencies,departments, and other elements of the United States Government,most of which is located in Virginia,"... does notalter this fact. Additionally,... theoffending act at issue--the publication of the Article--did not occurin Virginia. The Article was researched, written, and publishedin New York and, to some extent, Washington, D.C. Its subjectmatter has nothing to do with Virginia, and the Eastern Districtof Virginia is thus not the nucleus of operative facts. The court brushes off the fact that the article could be read in Virginia, noting that if that were the deciding factor, cases could be brought anywhere. It also laughs off the idea that the venue might be appropriate because that's where Steven Biss resides, relegating that silly argument to a footnote: "convenience to counsel is not an appropriate consideration in resolving a motion to transfer venue."The court then notes that NY is much more convenient for most material witnesses, and again brushes off Biss/Nunes' attempts to throw some "local to Virginia" witnesses into the stew to muddy things up:CNN argues that the witness convenience factor "squarelysupports transfer" because Ward, Cuomo, and Bondy all reside inNew York.... That all three key witnesses reside in New York favors transfer.The only witness Nunes has identified as residing in Virginia is Parnas's former attorney, Edward MacMahon, who was mentioned only once in the Article and who has not been shown to be a material witness.... Additionally, Nunes contends that Jake Tapper..., who resides in Washington, D.C., and Parnas and Igor Fruman--Parnas's business partner and co-defendant,... who reside in Florida, are "material witnesses." ... It is clear that Tapper is not a material witness.... With respect to Parnas and Fruman, even assuming that they are material witnesses, both of these witnesses would need to travel from Florida, and New York is likely to be more accessible than Richmond, Virginia. Additionally, as CNN notes, both Parnas and Fruman are under indictment in the SDNY. One other interesting point: the court points out that the parties are debating whether or not California's or New York's laws should apply to the case, and that supports a transfer to SDNY, which obviously understands NY law. And, the court says, even if it turns out that California's laws will apply (in which case, California's anti-SLAPP could be applied...), the court says that the SDNY is readily familiar with California law.Separately, though, it's pretty clear that the judge is not at all happy about how Biss handled the case, and his frustration is evident. He calls out the problem of forum shopping, and suggests that the court has previously warned Biss to knock it off:... the Court has significant concerns about forum shopping. As the Court has explained to Plaintiff's on numerous occassions, the "Court cannot stand as a willing repository for cases which have no real nexus to this district. The 'rocket docket' certainly attracts plaintiff[s], but the Court must ensure that this attraction does not dull the ability of the Court to continue to act in an expeditions manner."... The order to transfer the Washington Post case to DC is pretty similar:The District of Columbia is also a proper venue for this action. Venue is proper... because a "substantial part of the events or omissions giving rise to the claims occurred" in Washington, D.C. Venue is also proper... because the Post "resides" in Washington, D.C., given that the Post is subject to personal jurisdiction there, and "all defendants are residents of the State in which the district is located." Consequently, because jurisdiction and venue would both be proper in the District of Columbia, Nunes could have brought this case there... Also, there's the fact that Nunes' lives and works in DC:That Nunes "works at the Capitol within a few minutes' drive of Virginia" and "oversees the intelligence community, including ODNI which is located in Virginia" does not alter this fact... Indeed, Nunes's assertion that he "works at the Capitol," which is located in Washington, D.C., acts to support transferring this action to the District of Columbia. The fact that the Washington Post prints its print edition in Virginia is... not enough to make it the proper venue:Moreover, the Eastern District of Virginia is not the nucleus of operative facts. The offending act at issue--the publication of the Article online--occurred in Washington, D.C. ... Additionally, the Article was researched, written, and edited in Washington, D.C. with assistance from a journalist located in Moscow, Russia, not Virginia... The only connection between this action and Virginia, besides the location of Plaintiff's counsel, is that the Article was printed in Springfield, Virginia. That tenuous connection is insufficient to give significant weight to Nunes' choice of forum. As the judge later notes: "There is no logical connection between the events in this case and this district."It seems clear that Judge Payne sees what Biss is trying to do here, and given that, Biss may actually be at least mildly relieved to have these cases out of this judge's courtroom.Of course, in the CNN case, NY has a very weak anti-SLAPP law as well, so that part won't necessarily help CNN. However, if CNN can convince the court that California's anti-SLAPP law applies (which it might...), then Nunes could be on the hook for CNN's extensive legal costs. As for the Washington Post case, DC does have a good anti-SLAPP law, but it's been held not to be available in federal court there, meaning that might be limited too. Still, I really do wonder how much guidance Biss has given Nunes about the liability that he, himself, may end up facing in all of these lawsuits if California's anti-SLAPP law is applied?
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posted at: 12:00am on 27-May-2020
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