The Robert Mueller Investigation

[Al Bundy's Napoleon Hand 13584]

'Member when Al Gore's presidential campaign received materials they suspected might be stolen?

https://www.nytimes.com/2000/09/14/us/the-2000-campaign-the-debate-gore-aide-receives-then-lets-go-of-hot-potato.html

 

And when the Trump campaign publically solicited stolen materials from WikiLeaks?

[Hugo Stiglitz 23367]

It was widely reported before Wikileaks started disseminating the emails that the Russians were responsible for the hack/theft of said emails.

I’d like to think that counts for something.

[TwiceHorn 31456]

Look I get that you all want wikileaks to burn.  I dont give a fuck about wikileaks, but Greenwald's point that journalistic entities have long had the freedom to publish truthful, or at least not knowingly false, information from all kinds of seedy-ass sources, is quite valid.  I don't think the Defend Trade Secrets Act changes that.

Now, if wikileaks commissioned the hacking or otherwise assisted in it, then they can burn, but the complaint doesn't say that or even sniff it and it has 233 paragraphs.  It isn't an accidental omission.  Tellingiy, Wikileaks is not a defendant in the hacking counts, even as a conspirator.  It is a defendant on the Wiretap Acts count, which makes "disclosure" a crime/cause of action, but I don't think it applies because, simply stated, it was a hack (Stored Communications Act), not an intercept/wiretap.

The lawsuit seems to be rather a slam dunk against the rooskies, but there might be personal jurisdiction questions (lol).  It seems to be testing elastic limits of the law on the other parties and claims.  It will be interesting to see how far it gets.

Edited April 22, 2018 by TwiceHorn

[Al Bundy's Napoleon Hand 13584]

12 minutes ago, TwiceHorn said:

 It is a defendant on the Wiretap Acts count, which makes "dissemination" a crime/cause of action.

Right.

A crime. 

[TwiceHorn 31456]

1 minute ago, Al Bundy's Napoleon Hand said:

Right.

A crime. 

As I have said a couple of times, I don't think the wiretap act applies here.

[Loch Ness Monster 3533]

Trumps a dumb dumb. Should probably dump him on his ass just because he's a stupid man.

[triplehorn 2664]

17 minutes ago, TwiceHorn said:

Now, if wikileaks commissioned the hacking or otherwise assisted in it, then they can burn, but the complaint doesn't say that or even sniff it and it has 233 paragraphs.

Our IC leadership testified to the Senate that Wikileaks is a Russian intelligence cutout.  The independent hackers, the cutout front Wikileaks, and Russian intelligence are one coordinated operation.  MSM hasn't sniffed this, but Wikileaks servers evidently are now hosted in Russia.  Wikileaks reportedly obtained Russian hosting on September 30th 2016, one week before the Podesta emails were made public.  Wikileaks amounts to a pale smelly dude indefinitely holed up in the UK Ecuadorian Embassy to avoid arrest and extradition.

[Al Bundy's Napoleon Hand 13584]

Russia: Hey, WikiLeaks, we stole Twice Horn's lawnmower from his tool shed. You want it?

WikiLeaks: Sure do!

Trump: I would love for WikiLeaks to share Twice Horn's lawnmower with me and the world.

[Hugo Stiglitz 23367]

Papi up date.

[TwiceHorn 31456]

1 minute ago, Al Bundy's Napoleon Hand said:

Russia: Hey, WikiLeaks, we stole Twice Horn's lawnmower from his tool shed. You want it?

WikiLeaks: Sure do!

Trump: I would love for WikiLeaks to share Twice Horn's lawnmower with me and the world.

That's not the way this works.

[TwiceHorn 31456]

4 minutes ago, triplehorn said:

Our IC leadership testified to the Senate that Wikileaks is a Russian intelligence cutout.  The independent hackers, the cutout front Wikileaks, and Russian intelligence are one coordinated operation.  MSM hasn't sniffed this, but Wikileaks servers evidently are now hosted in Russia.  Wikileaks reportedly obtained Russian hosting on September 30th 2016, one week before the Podesta emails were made public.  Wikileaks amounts to a pale smelly dude indefinitely holed up in the UK Ecuadorian Embassy to avoid arrest and extradition.

Could be true.  DNC and their lawyers haven't sniffed that either, and didn't allege it in the lawsuit.

[Al Bundy's Napoleon Hand 13584]

10 minutes ago, TwiceHorn said:

That's not the way this works.

That's sorta exactly how it worked out. 

[BurntOrange&White 39931]

That's not the way this works.

Come on dude. You’re smarter than this. I’m the past week you’ve decided to die on two hills of stupidity just because you want to argue.

[TwiceHorn 31456]

11 minutes ago, Bevo VIII said:

Come on dude. You’re smarter than this. I’m the past week you’ve decided to die on two hills of stupidity just because you want to argue.

No. I want to talk about law not some  rumor mongering nonsense.  Hugo made an ill-informed post about Greenwald's post.

The problem here is actually people like you that are so consumed with obtaining a result that you can no longer hold a neutral discussion on points of law or broader policy.  This is the "indictment" thread, not the broad Trump collusion thread, not that it makes any difference  to you guys.  From the get go, I have posted legal discussion on this thread that is actually quite neutral, and concerned with legal processes and likely outcomes, but it doesn't fit your narrative so you shit all over it.  At least you people have stopped accusing me of favoring Trump.  If I have a bias, it is toward the accused or, more accurately, legal processes that protect the accused.

Edited April 22, 2018 by TwiceHorn

[Judge Roybeanbag 11819]

I like mustard on my biscuits. 

[TwiceHorn 31456]

Just now, Judge Roybeanbag said:

I like mustard on my biscuits. 

And some of them french fried potaters.

[Judge Roybeanbag 11819]

For the record I only said that because this thread had gotten off track.  

[Hugo Stiglitz 23367]

17 minutes ago, TwiceHorn said:

No. I want to talk about law not some  rumor mongering nonsense.  Hugo made an ill-informed post about Greenwald's post.

The problem here is actually people like you that are so consumed with obtaining a result that you can no longer hold a neutral discussion on points of law or broader policy.  This is the "indictment" thread, not the broad Trump collusion thread, not that it makes any difference  to you guys.  From the get go, I have posted legal discussion on this thread that is actually quite neutral, and concerned with legal processes and likely outcomes, but it doesn't fit your narrative so you shit all over it.  At least you people have stopped accusing me of favoring Trump.  If I have a bias, it is toward the accused or, more accurately, legal processes that protect the accused.

I’m willing to learn.

Does Wikileaks/Assange’s malicious intent play any role in this case?  

Let’s assume I could convince a jury of malicious intent by Assange to hurt Hillary Clinton’s campaign with stolen private emails.

Edited April 22, 2018 by Hugo Stiglitz

[TwiceHorn 31456]

36 minutes ago, Hugo Stiglitz said:

I’m willing to learn.

Does Wikileaks/Assange’s malicious intent play any role in this case?  

Let’s assume I could convince a jury of malicious intent to hurt Hillary Clinton’s campaign with stolen private emails.

See, even Hugo usually is willing to discuss these points.  And no, I don't think so.  It is an unusual case because DNC has couched the material in terms basically of intellectual property and it isn't a criminal case.  IP-type stuff like this tends to be less concerned with motives and intentions and moreso with the actions taken.  But, as we know, sometimes juries will ignore the finer points of the law and hit someone hard just because they think they're some sort of "bad actor."

 

The question here really is not so much what a jury might do with it, but whether certain counts of the suit will survive motions for dismissal or summary judgment and how much discovery gets permitted along the way.  As I said earlier, I think the case is pretty solid against the Russian defendants, even kind of stretching and bending IP/trade secrets to fit these basically criminal acts (and also couching work product of an American political party as "intellectual property," haha, intellectual get it?).  But I think it starts to fall apart with wikileaks, because by most accounts, including that of the lawsuit itself, wikileaks' involvement came after the fact of the hacking.  I don't think you have to get to some First Amendment exception for any of this for publication, because I don't think most of the causes of action actually make publication unlawful, regardless of motive or knowledge.

 

There is a wildcard here, though.  The Wiretap Act, which makes illegal wiretaps and use/disclosure of their "fruits" criminal, also provides for a civil action for its violation.  By its terms, knowing disclosure of illegally intercepted material is a crime and may be the subject of a civil suit.  However, hacking usually doesn't involve "intercepting" communications in real-time, which is what the Wiretap Act covers.  Once email became ubiquitous, questions arose as to the coverage of stored emails by the Wiretap Act, so Congress gave us the Stored Communications Act, which is an anti-hacking thing that does not make further disclosure or publication of the material criminal or the subject of civil liability.  There is a one-sentence, "on information and belief" allegation that the Russians may have real-time-intercepted DNC communications, but nothing that indicates that any of this was published by wikileaks.

 

The best analog I can think of is the Pentagon Papers.  Everyone, including the NYT, knew Ellsberg stole the papers (Ellsberg admitted it).  No one ever accused the NYT of wrongdoing, though, by the act of publishing the material.  Of course, the NYT is a fine, upstanding publication and wikileaks is a nasty, foreign, subversive place, but other than the subjective evaluation, I don't think you can draw any meaningful distinction between them.  PROVIDED, wikileaks didn't participate in the hacks.  Wikileaks' participation in the hacks would be a key element in the pleadings if the plaintiffs/DNC had the barest whiff of fact to support it, I can't imagine that they would leave it out.

Edited April 22, 2018 by TwiceHorn

[Hugo Stiglitz 23367]

Okay another question:

Why should Wikileaks/Assange have any protections under the U.S. Constitution/Law if they are operating outside of the United States and on behalf of a foreign power?

[Hugo Stiglitz 23367]

Yet another example of Glenn Greenwald’s douchebaggery by conflating the message with the messenger with hackish partisans dog whistles instead of acknowledging observable facts.

 

Edited April 22, 2018 by Hugo Stiglitz

[TwiceHorn 31456]

Mizzou could explain this better and more authoritatively than I (he make it over btw?).  But the protections of the Constitution have always been extended to non-citizens, that's a fairly non-controversial point.  Where it does or may not extend is to "extraterritorial" actions, as you note.  One could call wikileaks/Assange's actions extraterritorial, but then the lawsuit loses its nexus to the US (in most "internet" law things, because the material is accessible from the US and is viewed in the US, "extraterritoriality" is a non-starter) and might be subject to dismissal on forum non conveniens grounds (US is not the proper forum for these claims).

Again, I don't think you have to reach any First Amendment questions for wikileaks to avoid liability.  But it could conceivably operate as a limitation on the Wiretap Act.  But see https://caselaw.findlaw.com/us-5th-circuit/1297051.html,

which didn't reach the First Amendment question because there were fact questions as to WFAA's participation in the interception.

 

 

Edited April 22, 2018 by TwiceHorn

[TwiceHorn 31456]

36 minutes ago, Hugo Stiglitz said:

Yet another example of Glenn Greenwald’s douchebaggery by conflating the message with the messenger with hackish partisans dog whistles instead of acknowledging observable facts.

 

As a general proposition, conspiracy requires participation in an offense prior to its taking place.  Only criminal law recognizes aiding and abetting or accessory after the fact.  Which I think is where some of DNC's "conspiracy" type counts fail.

 

To be clear, the hacking was a criminal act that gives rise to civil liability for the hackers and those who conspired with the hackers to hack, before they hacked.  Civil liability for publication after the hack is getting to be a stretch, regardless of knowledge, motive, or intent.

Kind of an interesting sidenote that's related.  On occasion, trade secrets are misappropriated by "improper means" but are not actually used by the misappropriator, usually because they are caught before they have the opportunity to make use of them.  That lack of use is interposed as a defense.  And it fails, because the act of misappropriation is the use of improper means to obtain them, not what is subsequently done with them, which goes to damages (ie the amount of money awarded), not to liability.

The analogy here is that the hack gives rise to civil and criminal liability.  The publication makes it worse for the "owner" of the hacked material, from a damage standpoint, but doesn't affect the illegality/unlawfulness of the hack and doesn't give rise to liability by itself.

Edited April 22, 2018 by TwiceHorn

[Hugo Stiglitz 23367]

Thanks for the info and perspective, very helpful.

 

More Greenwald pwnage in spoiler.

[triplehorn 2664]

1 hour ago, TwiceHorn said:

As a general proposition, conspiracy requires participation in an offense prior to its taking place.  Only criminal law recognizes aiding and abetting or accessory after the fact.  Which I think is where some of DNC's "conspiracy" type counts fail.

 

To be clear, the hacking was a criminal act that gives rise to civil liability for the hackers and those who conspired with the hackers to hack, before they hacked.  Civil liability for publication after the hack is getting to be a stretch, regardless of knowledge, motive, or intent.

 

The one charge that has already made an appearance in Mueller indictments is 18 U.S. Code § 371 - Conspiracy to commit offense or to defraud United States.  Mueller’s indictment of 13 Russian people and three Russian companies accuses them of conspiring to interfere with “US political and electoral processes, including the presidential election of 2016.” 

From a lay article:

Quote

What does the law say?

Firstly, you cannot be charged with conspiracy alone. The law is used against "two or more people" - in this case, Mr Manafort and Mr Gates.

Secondly, the law is broad. It can be used against a group who "commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose".

In a 1924 case, Hammerschmidt v. United States, Chief Justice William Taft (who was US President from from 1909 to 1913) defined "defraud".

"To conspire to defraud the United States means primarily to cheat the Government out of property or money," he said.

"But it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest."

Realize that Wikileaks dropped the stolen Podesta emails less than an hour after the Trump Access Hollywood pussy grabber tapes were made public.  If it can be shown that Wikileaks was coordinating in real time with other entities also affiliated with the Russian hackers around the timing of the release of the emails to interfere with the electoral processes of the presidential election of 2016, it doesn't seem much of a stretch for Assange to be enveloped in the Russian conspiracy.  It will hinge on evidence from the FBI counterintelligence investigation in the form of intercepts etc., but I'd wager they've got it in spades.

[Brisketexan 105106]

Wikileaks does create a risk of making some bad - or at least suboptimal - Law.

 

First, is it an actual instrument of “the press?” There’s been much litigation of this point in these days of citizen journalists. I tend to lean strongly to the side of “if you’re recording or gathering info to share with the public, you’re performing a journalistic function.” The problem is...imagine a straight up, paid FSB agent is over here doing that. He’s nabbing secret military documents. He’s getting intel on planned troop movements. He’s got someone tapping the President’s phone. And he passes that along to his buddy, FSB agent 2, who publishes it on his blog, which gets tweeted and retweeted far and wide (helped by Russian bots, of course). Is that a journalistic organization? Or is it a foreign intel and disinformation operation?

 

Second, kind of what I said at the end. We generally allow the press to publish info brought to them, even when the provider obtained the info illegally (leaks, pentagon papers, exposes of corporate wrongdoing, etc). Almost always, these folks are “insiders,” or at least Americans. What about now, when the party that obtained the info is a hostile foreign intelligence service?

 

How would we feel if an FSB agent stole the info I outlined above, and instead of giving it to his FSB buddy for his blog, he delivered it the the NYT. And they published it, knowing who he was and how he got it?

 

I think it comes down to a question of whether Wikileaks is a press organization, or a foreign intel mouthpiece. And I imagine that’s gonna be fuzzy as shit.

 

I suspect that the real solution is, as it has always been, extra-legal. When foreign intel activities overreach acceptable boundaries of espionage, some folks need to wake up dead. Big problem though...when your CINC is compromised by the very hostile power that we’re dealing with...yeah...

 

Back to my scotch on the deck of the titanic.

 

[TwiceHorn 31456]

What we're talking about here is civil law, so 18 USC 371 does not apply.  Civil law recognizes a conspiracy, also, but like criminal law, requires an agreement to do something unlawful by the conspirators and an overt act toward doing that thing.  By definition, it precedes the unlawful act.

 

In this civil lawsuit, there are various things alleged, none of which give rise to liability for the sole act, by conspiracy or otherwise, of publishing the hacked information.  With the possible exception of the Wiretap Act.

[TwiceHorn 31456]

3 minutes ago, Brisketexan said:

Wikileaks does create a risk of making some bad - or at least suboptimal - Law.

 

First, is it an actual instrument of “the press?” There’s been much litigation of this point in these days of citizen journalists. I tend to lean strongly to the side of “if you’re recording or gathering info to share with the public, you’re performing a journalistic function.” The problem is...imagine a straight up, paid FSB agent is over here doing that. He’s nabbing secret military documents. He’s getting intel on planned troop movements. He’s got someone tapping the President’s phone. And he passes that along to his buddy, FSB agent 2, who publishes it on his blog, which gets tweeted and retweeted far and wide (helped by Russian bots, of course). Is that a journalistic organization? Or is it a foreign intel and disinformation operation?

 

Second, kind of what I said at the end. We generally allow the press to publish info brought to them, even when the provider obtained the info illegally (leaks, pentagon papers, exposes of corporate wrongdoing, etc). Almost always, these folks are “insiders,” or at least Americans. What about now, when the party that obtained the info is a hostile foreign intelligence service?

 

How would we feel if an FSB agent stole the info I outlined above, and instead of giving it to his FSB buddy for his blog, he delivered it the the NYT. And they published it, knowing who he was and how he got it?

 

I think it comes down to a question of whether Wikileaks is a press organization, or a foreign intel mouthpiece. And I imagine that’s gonna be fuzzy as shit.

 

I suspect that the real solution is, as it has always been, extra-legal. When foreign intel activities overreach acceptable boundaries of espionage, some folks need to wake up dead. Big problem though...when your CINC is compromised by the very hostile power that we’re dealing with...yeah...

 

Back to my scotch on the deck of the titanic.

 

In the scenarios you paint, there's still both civil and criminal liability for FSB agent 1, just maybe not for FSB agent 2.

 

And, the NYT and Fox and other news agencies do a lot of stuff that I don't feel very good about that is clearly and absolutely First Amendment privileged.  Deserve aint got nothing to do with it.

[Brisketexan 105106]

In the scenarios you paint, there's still both civil and criminal liability for FSB agent 1, just maybe not for FSB agent 2.
 
And, the NYT and Fox and other news agencies do a lot of stuff that I don't feel very good about that is clearly and absolutely First Amendment privileged.  Deserve aint got nothing to do with it.

The break point comes when a “press organization” is clearly and obviously just a front for a hostile foreign power, and any distinction between the organization and the hostile power is semantic.

“Information laundering,” as it were, doesn’t render the obtaining of that info any less illegal. And (and this is where it gets muddy), the role of the publisher (and timing of same) may matter.

[TwiceHorn 31456]

2 minutes ago, Brisketexan said:

The break point comes when a “press organization” is clearly and obviously just a front for a hostile foreign power, and any distinction between the organization and the hostile power is semantic.

“Information laundering,” as it were, doesn’t render the obtaining of that info any less illegal. And (and this is where it gets muddy), the role of the publisher (and timing of same) may matter.

Definitely becomes a sticky wicket when you are dealing with an entity that only publishes.

[Sawbonz 27548]

9 minutes ago, Brisketexan said:

Wikileaks does create a risk of making some bad - or at least suboptimal - Law.

 

First, is it an actual instrument of “the press?” There’s been much litigation of this point in these days of citizen journalists. I tend to lean strongly to the side of “if you’re recording or gathering info to share with the public, you’re performing a journalistic function.” The problem is...imagine a straight up, paid FSB agent is over here doing that. He’s nabbing secret military documents. He’s getting intel on planned troop movements. He’s got someone tapping the President’s phone. And he passes that along to his buddy, FSB agent 2, who publishes it on his blog, which gets tweeted and retweeted far and wide (helped by Russian bots, of course). Is that a journalistic organization? Or is it a foreign intel and disinformation operation?

 

Second, kind of what I said at the end. We generally allow the press to publish info brought to them, even when the provider obtained the info illegally (leaks, pentagon papers, exposes of corporate wrongdoing, etc). Almost always, these folks are “insiders,” or at least Americans. What about now, when the party that obtained the info is a hostile foreign intelligence service?

 

How would we feel if an FSB agent stole the info I outlined above, and instead of giving it to his FSB buddy for his blog, he delivered it the the NYT. And they published it, knowing who he was and how he got it?

 

I think it comes down to a question of whether Wikileaks is a press organization, or a foreign intel mouthpiece. And I imagine that’s gonna be fuzzy as shit.

 

I suspect that the real solution is, as it has always been, extra-legal. When foreign intel activities overreach acceptable boundaries of espionage, some folks need to wake up dead. Big problem though...when your CINC is compromised by the very hostile power that we’re dealing with...yeah...

 

Back to my scotch on the deck of the titanic.

 

You are touching on what I find the most fascinating aspect of all of this as it relates to intel and propaganda wars. To my knowledge that shit has never been dealt with in criminal or civil courts. We are basically indicting and extraditing, or trying to sue, spies. In the Cold War and prior, we would try to identify them and either feed them false intel or turn them, while they were attempting the same with ours.

Particularly dangerous ones would be exterminated presumably, while those who were publicly outed would be detained and swapped if caught on our turf, or barred from entry if outed while on foreign soil. I guess with most shenanigans occurring via the net the courts are the most practical avenue?  Tom Clancy would not approve 

[TwiceHorn 31456]

3 minutes ago, Sawbonz said:

You are touching on what I find the most fascinating aspect of all of this as it relates to intel and propaganda wars. To my knowledge that shit has never been dealt with in criminal or civil courts. We are basically indicting and extraditing, or trying to sue, spies. In the Cold War and prior, we would try to identify them and either feed them false intel or turn them, while they were attempting the same with ours.

Particularly dangerous ones would be exterminated presumably, while those who were publicly outed would be detained and swapped if caught on our turf, or barred from entry if outed while on foreign soil. I guess with most shenanigans occurring via the net the courts are the most practical avenue?  Tom Clancy would not approve 

Interesting and I think valid observation.  I suppose part of it is that after the Church Commission and the revelations concerning the Iraq wars, the current environment is against assasination even in the name of national security.

 

And, of course, here, the espionage is neither economic nor national-security related, so a government bringing the ultimate sanction would be even more difficult to justify.

[Mojo Hand 4580]

How can you have protection for trade secrets if they can be so easily laundered by throwing them up on a website?    Wikileaks conducted no review of the materials for public interest; they purely transmitted stolen internal documents without any diligence.  That they are a Russian intelligence cutout is almost beside the point.  They didn't execute any press function. 

[TwiceHorn 31456]

8 minutes ago, Mojo Hand said:

How can you have protection for trade secrets if they can be so easily laundered by throwing them up on a website?    Wikileaks conducted no review of the materials for public interest; they purely transmitted stolen internal documents without any diligence.  That they are a Russian intelligence cutout is almost beside the point.  They didn't execute any press function. 

Explained.  The protection lies against misappropriation, which focuses on the improper means not further or improper use.   Trade secret law (Texas' version at its most aggressive) will actually protect information that is in the public domain if the misappropriator obtained it by improper means rather than public domain sources.  https://law.justia.com/cases/texas/supreme-court/1958/a-6486-0.html Once misappropriated, trade secret law basically assumes that it is public domain thereafter.  That is, the secrecy is destroyed, so the degree of destruction is just a matter of damages, not liability.

Edited April 22, 2018 by TwiceHorn

[Brisketexan 105106]

Explained.  The protection lies against misappropriation, which focuses on the improper means not further or improper use.   Trade secret law will actually protect information that is in the public domain if the misappropriator obtained it by improper means rather than public domain sources.  Once misappropriated, trade secret law basically assumes that it is public domain thereafter.  That is, the secrecy is destroyed, so the degree of destruction is just a matter of damages, not liability.

And that may change. Because you’re seeing “information laundering” by a bad actor that is actually a hostile foreign power, and is practically beyond the reach of any legal remedy.

We can’t do shit to Boris Badenov the information thief. He’s a Russian Gov’t operative, safe in Russia. So trade secret Law offers zero remedy. Now what?

I think we’re getting ready to see the “now what.”

And my position is known: Boris needs to wake up dead.

[TwiceHorn 31456]

4 minutes ago, Brisketexan said:

And that may change. Because you’re seeing “information laundering” by a bad actor that is actually a hostile foreign power, and is practically beyond the reach of any legal remedy.

We can’t do shit to Boris Badenov the information thief. He’s a Russian Gov’t operative, safe in Russia. So trade secret Law offers zero remedy. Now what?

I think we’re getting ready to see the “now what.”

And my position is known: Boris needs to wake up dead.

Well, remember we're just dealing here with a civil lawsuit by the DNC, which is more about politics than legal theory or the course of the law.  We aren't talking about criminal laws, international diplomacy, or spycraft and espionage policy.

 

No matter what the existing law, or future laws should be, a private civil suit by a political party was never going to be the vehicle that solves the larger problems.

Edited April 22, 2018 by TwiceHorn

[Mojo Hand 4580]

9 minutes ago, TwiceHorn said:

Explained.  The protection lies against misappropriation, which focuses on the improper means not further or improper use.   Trade secret law (Texas' version at its most aggressive) will actually protect information that is in the public domain if the misappropriator obtained it by improper means rather than public domain sources.  https://law.justia.com/cases/texas/supreme-court/1958/a-6486-0.html Once misappropriated, trade secret law basically assumes that it is public domain thereafter.  That is, the secrecy is destroyed, so the degree of destruction is just a matter of damages, not liability.

What about injunctive relief to get the materials taken off the web? 

[TwiceHorn 31456]

12 minutes ago, Mojo Hand said:

What about injunctive relief to get the materials taken off the web? 

Seems to be likely as wikileaks would seem to be in active concert or participation with the hackers, at least.  That is, the hackers might be enjoined from further dissemination of actual trade secrets, and thereby Wikileaks, but it doesn't really solve or pretend to solve the cat out of the bag problem.

 

All IP lawyers agree and know that trade secret protection is great.  As long as you can keep it secret.  As soon as you can't, it's worthless.  Also US IP policy and the first amendment are similar in that they favor the free dissemination of ideas.  Even the strongest IP,  patents and copyrights for appropriate subject matter, expire and inject their subject matter into the public domain for the public benefit.  Trade secrets are kind of inimical to that notion.  There is an unwritten freedom to copy in the US absent current and valid patent or copyright, or use of "improper means" to obtain information that was confidential.

Edited April 22, 2018 by TwiceHorn

[Mojo Hand 4580]

Just now, TwiceHorn said:

Seems to be likely as wikileaks would seem to be in active concert or participation with the hackers, at least.  That is, the hackers might be enjoined from further dissemination of actual trade secrets, but it doesn't really solve or pretend to solve the cat out of the bag problem.

But that might be a good reason to have Wikileaks as a defendant.  Is it clear that the DNC will be seeking damages against them based purely on publication?   The DNC might be leaving their options open to see in discovery whether Wikileaks was part of a conspiracy to steal the materials in the first place. 

[TwiceHorn 31456]

21 minutes ago, Mojo Hand said:

But that might be a good reason to have Wikileaks as a defendant.  Is it clear that the DNC will be seeking damages against them based purely on publication?   The DNC might be leaving their options open to see in discovery whether Wikileaks was part of a conspiracy to steal the materials in the first place. 

Well, you are getting into the very fine points of equitable relief, but I'm not sure an "innocent" defendant can actually be named in an injunction, i.e. enjoined, even if a named party.  Innocent meaning not actually found liable for something. As a practical matter, I think they can be brought within the scope of an injunction as being in active concert and participation with someone found liable.

 

And of course, discovery may reveal pre-hack complicity of wikileaks, in which case all bets are off for wikileaks.  That actually isn't pled (pleaded, fuck you), and one might think that you would plead it on information and belief, at least.  But who knows.

 

And, wikileaks is not named as some sort of "relief" party, they are actually accused of misappropriation of trade secrets, but the acts described are those of publication and dissemination, not actual misappropriation.  Unless evidence develops that they participated in the hacks, before or during the hacks, I think those claims fail.

Edited April 22, 2018 by TwiceHorn

[FondrenRoad 4378]

45 minutes ago, TwiceHorn said:

Well, you are getting into the very fine points of equitable relief, but I'm not sure an "innocent" defendant can actually be named in an injunction, i.e. enjoined, even if a named party.  Innocent meaning not actually found liable for something. As a practical matter, I think they can be brought within the scope of an injunction as being in active concert and participation with someone found liable.

 

And of course, discovery may reveal pre-hack complicity of wikileaks, in which case all bets are off for wikileaks.  That actually isn't pled (pleaded, fuck you), and one might think that you would plead it on information and belief, at least.  But who knows.

 

And, wikileaks is not named as some sort of "relief" party, they are actually accused of misappropriation of trade secrets, but the acts described are those of publication and dissemination, not actual misappropriation.  Unless evidence develops that they participated in the hacks, before or during the hacks, I think those claims fail.

What if both the hackers and wikileaks are separately funded by the Russian government?  That is what potentially separates this from your NY times comparison. Both the source and the media outlet are owned by the same entity.

[TwiceHorn 31456]

25 minutes ago, FondrenRoad said:

What if both the hackers and wikileaks are separately funded by the Russian government?  That is what potentially separates this from your NY times comparison. Both the source and the media outlet are owned by the same entity.

Interesting aspect.  Dunno.  I think it would demand pretty strict proof that there is a single entity controlling both the hacking and the dissemination, such that you kind of pierce the veil of wikileaks existence as an entity.  The Russian Federation is an actual defendant, but there isn't any allegation of control of wikileaks by the Russian government.

Also, I have been assuming that interested parties have read the complaint, but if you haven't it's here. https://assets.documentcloud.org/documents/4443383/The-DNC-s-lawsuit-against-the-Russian-government.pdf

Of course a complaint like this is not written in stone and is subject to amendment to fit the facts and theories as they develop.  However, you usually want to slide in as much as you can, even on information and belief, because the scope of the complaint can be used to narrow/broaden the scope of discovery to an extent, and the ability to amend is not unlimited.

Edited April 22, 2018 by TwiceHorn

[kevwun 15777]

What they can actually do to Assange though if they had named him in the suit?  He's already holed up in the Ecuadorian Embassy and has no assets worth mentioning I assume.  His only move is to try to get out and be smuggled in to Russia without the British arresting him and I imagine that would not be an easy thing to do with how pissed the British Government is at him.

Edited April 22, 2018 by kevwun

[TwiceHorn 31456]

1 minute ago, kevwun said:

What they can actually do to Assange though if they had named him in the suit?  He's already holed up in the Ecuadorian Embassy and has no assets worth mentioning I assume.  His only move is to try to get out and be smuggled in to Russia without the British arresting him and I imagine that would not be an easy thing to do.

Yeah, that's an interesting point.  It's going to be really hard to get discovery from the non-US defendants and they're going to need it to support some of their claims.  And then, if they win on something and are awarded damages, it's going to be very hard to collect, I assume.  But the discovery from the US defendants could be an epic shitshow.

[Jhawk 1075]

3 hours ago, Brisketexan said:

Wikileaks does create a risk of making some bad - or at least suboptimal - Law.

 

First, is it an actual instrument of “the press?” There’s been much litigation of this point in these days of citizen journalists. I tend to lean strongly to the side of “if you’re recording or gathering info to share with the public, you’re performing a journalistic function.” The problem is...imagine a straight up, paid FSB agent is over here doing that. He’s nabbing secret military documents. He’s getting intel on planned troop movements. He’s got someone tapping the President’s phone. And he passes that along to his buddy, FSB agent 2, who publishes it on his blog, which gets tweeted and retweeted far and wide (helped by Russian bots, of course). Is that a journalistic organization? Or is it a foreign intel and disinformation operation?

 

Second, kind of what I said at the end. We generally allow the press to publish info brought to them, even when the provider obtained the info illegally (leaks, pentagon papers, exposes of corporate wrongdoing, etc). Almost always, these folks are “insiders,” or at least Americans. What about now, when the party that obtained the info is a hostile foreign intelligence service?

 

How would we feel if an FSB agent stole the info I outlined above, and instead of giving it to his FSB buddy for his blog, he delivered it the the NYT. And they published it, knowing who he was and how he got it?

 

I think it comes down to a question of whether Wikileaks is a press organization, or a foreign intel mouthpiece. And I imagine that’s gonna be fuzzy as shit.

 

I suspect that the real solution is, as it has always been, extra-legal. When foreign intel activities overreach acceptable boundaries of espionage, some folks need to wake up dead. Big problem though...when your CINC is compromised by the very hostile power that we’re dealing with...yeah...

 

Back to my scotch on the deck of the titanic.

 

Quality post.

So is this suit filed alleging that wiki is a hostile actor towar our country? Or is that basically what is to be found out?

i ask this because if it is a media entity and they are found liable for something then a few other cases probably need to be looked at. The first is with the guardian over in the UK. They are the ones that published the Snowden stuff. Snowden has been declared a traitor since day one. If wiki either is found liable for something or found to be a hostile agent then the guardian should at some point face the same scrutiny (and greenwald himself!).

a second case is Rachel Maddow and msnbc because of the trump tax return. She could have only come about it illegally. It could also be argued that it was an operational document because trump was running on his brilliance in business making him a billionaire and he could do that for the country. If wiki is media and can be punished then msnbc should face scrutiny as well and not be protected by true first amendment  

Finally, a third case could be against the NYT and the comey memos. Comey leaked his memos to a 3rd party and eventually to a publication. If wiki is media and is not protected by the first amendment then NYT probably shouldn’t be either. 

[triplehorn 2664]

Can you envision a scenario where Fox or the NYT is forced to register in the US under FARA laws ?  Similar to what RT and Sputnik News were recently forced to do?

What conditions have to apply to be relegated to status of being an agent of foreign power ?

[TwiceHorn 31456]

10 minutes ago, Jhawk said:

Quality post.

So is this suit filed alleging that wiki is a hostile actor towar our country? Or is that basically what is to be found out?

i ask this because if it is a media entity and they are found liable for something then a few other cases probably need to be looked at. The first is with the guardian over in the UK. They are the ones that published the Snowden stuff. Snowden has been declared a traitor since day one. If wiki either is found liable for something or found to be a hostile agent then the guardian should at some point face the same scrutiny (and greenwald himself!).

a second case is Rachel Maddow and msnbc because of the trump tax return. She could have only come about it illegally. It could also be argued that it was an operational document because trump was running on his brilliance in business making him a billionaire and he could do that for the country. If wiki is media and can be punished then msnbc should face scrutiny as well and not be protected by true first amendment  

Finally, a third case could be against the NYT and the comey memos. Comey leaked his memos to a 3rd party and eventually to a publication. If wiki is media and is not protected by the first amendment then NYT probably shouldn’t be either. 

This case probably isn't going to make that kind of law.  And if it does purport or attempt to extend some liability for publication of "stolen" information, then it will probably be tied up by appeals and cert petitions for so long that it won't create any useful precedent for a decade or so.  At some point, the legitimate media and EFF and ACLU are going to snap to the point Greenwald made and inundate the courts with amicus briefs and it will become an "important" case.

[Brisketexan 105106]

Quality post.
So is this suit filed alleging that wiki is a hostile actor towar our country? Or is that basically what is to be found out?
i ask this because if it is a media entity and they are found liable for something then a few other cases probably need to be looked at. The first is with the guardian over in the UK. They are the ones that published the Snowden stuff. Snowden has been declared a traitor since day one. If wiki either is found liable for something or found to be a hostile agent then the guardian should at some point face the same scrutiny (and greenwald himself!).
a second case is Rachel Maddow and msnbc because of the trump tax return. She could have only come about it illegally. It could also be argued that it was an operational document because trump was running on his brilliance in business making him a billionaire and he could do that for the country. If wiki is media and can be punished then msnbc should face scrutiny as well and not be protected by true first amendment  
Finally, a third case could be against the NYT and the comey memos. Comey leaked his memos to a 3rd party and eventually to a publication. If wiki is media and is not protected by the first amendment then NYT probably shouldn’t be either. 

Other than you skipping over my whole paragraph about how this info typically comes from “insiders,” sure.

The media has long been protected when they publish leaked information. Here, we’re not taking about leaked info - we’re talking about stolen info, which was stolen by a hostile foreign power.

If the Russians had stolen info about our nuclear defenses during the Cuban Missile Crisis, and then provided that to the NYT with a note signed “love, the KGB,” I suspect most folks would have been quite enraged at the NYT if it published that information.

That’s an important distinction here. The call isn’t “coming from inside the house!” It’s coming from an outside, hostile power.

The distinction is important in many ways. Whether it’s important under the law remains to be seen.

[Hugo Stiglitz 23367]

9 minutes ago, triplehorn said:

Can you envision a scenario where Fox or the NYT is forced to register in the US under FARA laws ?  Similar to what RT and Sputnik News were recently forced to do?

What conditions have to apply to be relegated to status of being an agent of foreign power ?

I’d say State sponsorship is a very clear line that separates RT/Sputnik from NYT with regard to FARA violations.

Jury is still out on Fox, their London offices were just raided. 

[Hugo Stiglitz 23367]

Let’s say the Russians stole some nuclear materials from one of their enemies inside the United States.  They then weaponized the nuclear material to be systematically launched back on the very Americans they stole the material from.  

Because that’s kinda how I see what they did with the emails in the 2016 election, metaphorically speaking.

Edited April 22, 2018 by Hugo Stiglitz