The Courts

Courthouse News Service: Judge Rules for BuzzFeed in Dossier Libel Case

By Alex Pickett

BuzzFeed won a libel case Wednesday, nearly two years after a Russian tech executive accused the news outlet of defaming him in an article about the infamous Donald Trump-Russia dossier.

U.S. District Judge Ursula Ungaro ruled Aleksej Gubarev cannot prove BuzzFeed defamed him by publishing the dossier, which included allegations of involvement in cyber attacks against the Democratic Party during the 2016 election campaign…

Wednesday’s 23-page ruling in Miami federal court found BuzzFeed’s article fell under the fair reporting privilege, which shields journalists from liability for repeating potentially defamatory allegations if they stem from an official record.

“Official record” became the main argument for both parties. BuzzFeed said the FBI investigation into the dossier constituted an official record. Gubarev’s attorneys maintained the government focused on other parts of the dossier and not the allegations against him.

Judge Ungaro found the news organization did not need to prove the federal government was actively investigating the specific allegations against Gubarev, particularly if the reporters did not editorialize…

BuzzFeed’s editor in chief, Ben Smith, saw the ruling as vindication for upholding the First Amendment.

“As we have said from the start, a document that had been circulating at the highest levels of government, under active investigation by the FBI, and briefed to two successive presidents, is clearly the subject of ‘official action,'” Smith said in a statement. “Moreover, its publication has contributed to the American people’s understanding of what is happening in their country and their government.”

Electronic Frontier Foundation: Before and After: What We Learned About the Hemisphere Program After Suing the DEA

By Dave Maass

As the year draws to a close, so has EFF’s long-running Freedom of Information Act lawsuit against the Drug Enforcement Agency about the mass phone surveillance program infamously known as “Hemisphere.”

We won our case and freed up tons of records. (So did the Electronic Privacy Information Center.) The government, on the other hand, only succeeded in dragging out the fake secrecy.

In late 2013, right as the world was already reeling from the Snowden revelations, the New York Times revealed that the AT&T gives federal and local drug enforcement investigators access to a phone records surveillance system that dwarfs the NSA’s. Through this program, code-named Hemisphere, police tap into trillions of of phone records going back decades.

It’s been five long years of privacy scandals, and Hemisphere has faded somewhat from the headlines since it was first revealed. That was long enough for officials to rebrand the program “Data Analytical Services,” making it even less likely to draw scrutiny or stick in the memory. Nevertheless Hemisphere remains a prime example of how private corporations and the government team up to help themselves to our digital lives, and the lengths they will go to to cover their tracks…

But beyond the Fourth Amendment problems, Hemisphere also poses acute risks to the First Amendment rights of callers caught in the program’s dragnet. Specifically, Hemisphere allows police to see a person’s associations, shedding light on their personal connections and political and social networks. It’s not hard to see such a tool being trained on activists and others critical of law enforcement, or being used by the government to identify entire organizations.

The Hill: Don Lemon shows 1999 clip of Trump saying ‘nobody knows more about campaign finance’ than him

By Justin Wise

CNN host Don Lemon late Wednesday shared a 1999 video of President Trump touting his knowledge of campaign finance as questions swirl about Trump’s understanding of the topic.

“Well, investigators could be pretty interested in this: The Wall Street Journal is reporting that sworn statements by Donald Trump dating back several decades indicate he has a deep understanding of campaign finance laws,” Lemon said on his nightly news program.

“They could also just listen to Trump in his own words,” he added, before playing a tape of an interview Trump had with former CNN host Larry King.

“I think nobody knows more about campaign finance than I do because I’m the biggest contributor,” Trump said at the time after being asked about campaign finance reform.

“Ruh roh,” Lemon said. “Sounds like Donald Trump knows plenty about campaign finance, a fact that could certainly backfire on him. There’s always a tape or tweet for everything.

According to a new report from the Journal, Trump has testified multiple times regarding his experience with campaign donations, the first of which reportedly came in 1988, when he testified for a government integrity commission.

Trump’s knowledge of campaign finance laws may be key in any future criminal proceedings against him, experts say, as prosecutors would need to prove that the president knowingly violated the law in order to secure a conviction against him.

Congress

The Hill: H.R.1 is a start, but we must do more for nonpartisan electoral reform

By Katherine M. Gehl and Michael E. Porter

While the Constitution provides some power to the Congress to fix what ails federal elections, the real action in cleaning up campaigns, boosting competition, and encouraging greater citizen participation is happening in the states. Two weeks ago, more than 50 different nonpartisan electoral reform organizations from across the country huddled at the first national summit of the National Association of Nonpartisan Reformers in Half Moon Bay, Calif., to coordinate the remarkable state-by-state momentum that is building around these reforms.

So while we applaud soon-to-be Speaker Nancy Pelosi’s (D-Calif.) promotion of the “H.R. 1 – For The People” package of election reforms to take on campaign finance, ethics and other structural fixes, we think there’s a great deal more that needs to be done.

We wholeheartedly celebrate the expanded awareness that H.R. 1 can bring to the national debate for fundamental, nonpartisan election reform. Labeling election reform legislation as the top priority of the new Congress is welcomed and should be taken seriously.

But like any major policy reform project, election reform can be difficult and confusing…

We believe Leader Pelosi is on the right track with H.R.1. and is saying the right things about how important election reform should be for all voters. We hope the new Congress will seize this unprecedented moment to build a national movement for fixing our elections.

Online Speech Platforms 

New York Times: Secret Experiment in Alabama Senate Race Imitated Russian Tactics

By Scott Shane and Alan Blinder

As Russia’s online election machinations came to light last year, a group of Democratic tech experts decided to try out similarly deceptive tactics in the fiercely contested Alabama Senate race, according to people familiar with the effort and a report on its results.

The secret project, carried out on Facebook and Twitter, was likely too small to have a significant effect on the race, in which the Democratic candidate it was designed to help, Doug Jones, edged out the Republican, Roy S. Moore. But it was a sign that American political operatives of both parties have paid close attention to the Russian methods, which some fear may come to taint elections in the United States.

One participant in the Alabama project, Jonathon Morgan, is the chief executive of New Knowledge, a small cyber security firm that wrote a scathing account of Russia’s social media operations in the 2016 election that was released this week by the Senate Intelligence Committee.

An internal report on the Alabama effort, obtained by The New York Times, says explicitly that it “experimented with many of the tactics now understood to have influenced the 2016 elections.”

The project’s operators created a Facebook page on which they posed as conservative Alabamians, using it to try to divide Republicans and even to endorse a write-in candidate to draw votes from Mr. Moore. It involved a scheme to link the Moore campaign to thousands of Russian accounts that suddenly began following the Republican candidate on Twitter, a development that drew national media attention.

“We orchestrated an elaborate ‘false flag’ operation that planted the idea that the Moore campaign was amplified on social media by a Russian botnet,” the report says.

New York Times: Doug Jones ‘Outraged’ by Russian-Style Tactics Used in His Senate Race

By Scott Shane, Alan Blinder and Sydney Ember

Senator Doug Jones of Alabama on Thursday said he was “outraged” to learn of deceptive online operations used by fellow Democrats to assist his election…

He called on the Federal Election Commission and the Justice Department to examine whether the episode violated any laws and, if it did, to prosecute those responsible. Officials need “to let people know that this is not acceptable in the United States of America,” he said in a statement…

The effort, financed by Reid Hoffman, the billionaire co-founder of LinkedIn, is unlikely to have had a significant effect on the outcome, given its modest budget. It cost $100,000, out of $51 million spent on the entire race, including the primaries…

“This is something I’ve been warning of for months,” said Senator Mark Warner, Democrat of Virginia, who as vice chairman of the Intelligence Committee has been critical of Facebook, Twitter and other social media platforms for failing to guard against misuse.

“The threat these tactics pose to our democracy are not uniquely Russian, which is why it is imperative that the companies get a handle on the problem now and not later,” Mr. Warner said…

Attempts to regulate the kind of the tactics used in Alabama could run into constitutional barriers, according to Richard L. Hasen, a professor at the University of California, Irvine, School of Law who specializes in election law.

“We generally don’t have laws – and the First Amendment prevents us from having laws – that prohibit candidates from lying,” he said.

A requirement for more detailed reporting of what is often vaguely recorded as “online services” might help, at least for activities carried out by an official campaign, he said. But he is not holding out hope for 2020.

DOJ

NBC News: Mueller may submit report to attorney general as soon as mid-February, say sources

By Pete Williams and Ken Dilanian

Special counsel Robert Mueller is nearing the end of his historic investigation into Russian election interference and is expected to submit a confidential report to the attorney general as early as mid-February, government officials and others familiar with the situation tell NBC News…

He has charged 33 people and convicted three senior Trump associates – former campaign chairman Paul Manafort, former National Security Adviser Mike Flynn and lawyer Michael Cohen – who have cooperated with him to varying degrees.

One sign that Mueller is close to finishing, legal experts say, is that he has moved forward with the sentencing of those men – particularly Flynn, who he credited with substantial cooperation, much of which remains secret. Flynn’s lawyers agreed to postpone his sentencing this week after it became clear the judge was considering imposing a prison sentence despite Mueller’s recommendation of probation.

Generally, prosecutors prefer to delay the sentencing of cooperating witnesses until the case in which they are helping is over, to retain leverage over them and secure their testimony in court.

Citizens United

Washington Post: Justice Alito, you owe President Obama an apology

By Ronald A. Klain

Obama’s critics can claim that what happened in 2016 was not precisely what he warned about: His comments were drawn from Justice John Paul Stevens’ powerful dissent in Citizens United, which noted that many U.S. corporations have foreign parents that could, after the ruling, funnel unlimited amounts into American campaigns through U.S. subsidiaries. In the 2016 campaign, it’s not clear if it was Russian “companies” – or the Russian government – that was funding the efforts, but U.S. corporate subsidiaries have not yet been shown to be the intermediaries.

And, of course, the fact that special counsel Robert S. Mueller III’s team is prosecuting people for the Russian influence scheme shows that such efforts remain illegal. So was Obama wrong when he said that Citizens United had opened “the floodgates” for foreign entities to influence our elections?

Sadly, no…

Most important, the “wild west” of unlimited outside money unleashed by Citizens United – estimated at $1.4 billion in 2016, up roughly five times from just eight years before – helped 2016’s foreign incursion escape more widespread notice while it was happening. With so much money flooding into the system, the questions of how strange social media activity was being funded and who was paying for the NRA’s effort for Trump were just two more mysteries in our rapidly expanding dark money universe.

This is why the new House Democratic majority is wise to tackle campaign finance reform as part of the first bill they are submitting in the new Congress – H.R. 1, a package of reform measures to protect voting rights, strengthen electoral integrity and lessen special interest influence in our political system. It won’t fix everything – or even most – of what Obama worried about in the wake of Citizens United, but it is a step in the right direction.

The States

The Oklahoman: Overreach a concern with proposed “indirect lobbying” rule

By Editorial Board

Under a proposed rule amendment that could be considered next month, the [Ethics Commission] would create a new category of people subject to state regulation and reporting requirements: those involved in “indirect lobbying.”

The proposed rules define “indirect lobbying” to include citizens who communicate “support or opposition of pending legislation” to influence “a vote on pending legislation.” This seems to include activity for which a person isn’t financially compensated. The rules apply to communications made on the internet, among other venues.

Put simply, if someone sets up a Facebook group and encourages other people to contact legislators to oppose a specific bill, it appears the organizer and group members could be considered “indirect” lobbyists subject to various reporting requirements.

The rules include provisions that verge on self-contradiction. The proposal exempts “communications made exclusively to one or more legislators, the governor, or the staff of the legislature or governor.” So one could directly urge lawmakers to oppose a bill and face little red tape, but urging one’s neighbors to contact lawmakers and express the exact same message could subject you to new reporting requirements.

The rule wouldn’t apply to an opinion column in a newspaper, but if the author posts that same commentary on social media or emails it to associates, along with a call to action, then the author could suddenly be an indirect lobbyist…

Had this rule been in place this year, one wonders how many striking teachers would have qualified as “indirect lobbyists” subject to reporting requirements…

Most importantly, the proposed rules appear to impose burdens on Oklahomans engaged in standard political speech, which is among the fundamental freedoms enshrined in the Bill of Rights.

Albuquerque Journal: Legislators challenge campaign finance rules

By Dan McKay

Four Republican state lawmakers are asking the state Supreme Court to block the enforcement of 2017 campaign finance rules that require more disclosure of political spending by independent groups.

In a petition filed Thursday, the legislators accused Secretary of State Maggie Toulouse Oliver of overstepping her authority last year when she imposed the new disclosure requirements, after a series of public hearings.

The new rules came after Gov. Susana Martinez vetoed legislation that included similar disclosure requirements.

In a 30-page filing with the Supreme Court, the four legislators – Sen. William Sharer of Farmington, Sen. Mark Moores of Albuquerque, Rep. James Strickler of Farmington and Rep. David Gallegos of Eunice – said Toulouse Oliver had made an end run around the Republican governor’s veto.

“An extraordinary breach of New Mexico’s constitutional order lies at the heart of this case – a veto of a veto that effectively enacted law without a governor’s signature and without a veto override by the New Mexico State Legislature,” the petition says.

A national advocacy group, the New Civil Liberties Alliance, and Albuquerque attorney Colin Hunter filed the petition on behalf of the legislators…

Critics argued that the new rules would chill free speech rights, because people might be harassed if their donations were made public.

Bloomberg: Facebook to Stop Accepting Campaign Ads in Washington State

By Kartikay Mehrotra

Facebook Inc. will stop accepting campaign ads in Washington state after agreeing to pay more than $200,000 to settle a lawsuit alleging the company, along with Google Inc., violated state campaign finance laws by failing to maintain records of election ads on its platform.

Facebook’s decision is also in response to one of the country’s most assertive campaign finance disclosure regulations for digital advertising, which will be enforced by Washington’s Public Disclosure Commission starting Jan. 1.

“As we continue to address the Public Disclosure Commission’s new requirements going into effect in the New Year, we’re pausing state and local electoral ads in Washington state by the end of December,” Beth Gautier, a spokeswoman for Facebook said in a written statement.

The lawsuit and settlements were among the first stemming from campaign finance allegations against either company.

California, New York and Maryland also have newly created digital transparency requirements to regulate state campaigns, mirroring federal law.

“While $400,000 is a drop in the bucket, it does send an important message that companies can’t evade transparency requirements and expect to get away with it,” said Brendan Fischer, director of the Federal Reform program at the Campaign Legal Center. “These rules underpin our election system.”