DOJ demands info on dissenters

SUBHEAD: Attorney General Sessions goes to court to seize website's database and visitor information.

By Sam Sacks on 15 August 2017 for District Sentinel -
(https://www.districtsentinel.com/massive-doj-demand-info-dissenters-goes-court/)



Image above: A sticker advertising www.disruptj20.org in Washington, D.C. in January 2017. Photo by Elvert Barnes. From original article.

The U.S. Department of Justice (DOJ) is demanding details on visitors to an anti-Trump protest website in what consumer advocates are calling an “unconstitutional” invasion of privacy.

The Guardian reports:

On 17 July, the DoJ served a website-hosting company, DreamHost, with a search warrant for every piece of information it possessed that was related to a website that was used to coordinate protests during Donald Trump’s inauguration. The warrant covers the people who own and operate the site, but also seeks to get the IP addresses of 1.3 million people who visited it, as well as the date and time of their visit and information about what browser or operating system they used.
The website, www.disruptj20.org, was used to coordinate protests and civil disobedience on 20 January, when Trump was inaugurated.
“This specific case and this specific warrant are pure prosecutorial overreach by a highly politicized department of justice under [Attorney General Jeff] Sessions,” said Chris Ghazarian, general counsel for DreamHost. “You should be concerned that anyone should be targeted simply for visiting a website.”
The warrant was made public Monday, when DreamHost announced its plans to challenge the government in court. The DoJ declined to comment.

DreamHost expanded on its concerns regarding the warrant in a blog post, writing:

Chris Ghazarian, our General Counsel, has taken issue with this particular search warrant for being a highly untargeted demand that chills free association and the right of free speech afforded by the Constitution. …
The request from the DOJ demands that DreamHost hand over 1.3 million visitor IP addresses — in addition to contact information, email content, and photos of thousands of people — in an effort to determine who simply visited the website. (Our customer has also been notified of the pending warrant on the account.)
That information could be used to identify any individuals who used this site to exercise and express political speech protected under the Constitution’s First Amendment. That should be enough to set alarm bells off in anyone’s mind.
This is, in our opinion, a strong example of investigatory overreach and a clear abuse of government authority.

The Electronic Frontier Foundation (EFF), a nonprofit dedicated to defending online free speech and privacy rights, labeled the warrant “unconstitutional.”

“I can’t conceive of a legitimate justification other than casting your net as broadly as possible to justify millions of user logs,” EFF senior staff attorney Mark Rumold told The Guardian. “This [the website] is pure First Amendment a
dvocacy – the type of advocacy the First Amendment was designed to protect and promote.”
In a blog post published Monday, the EFF expanded on the privacy concerns at stake in the case:

No plausible explanation exists for a search warrant of this breadth, other than to cast a digital dragnet as broadly as possible. But the Fourth Amendment was designed to prohibit fishing expeditions like this. Those concerns are especially relevant here, where DOJ is investigating a website that served as a hub for the planning and exercise of First Amendment-protected activities.

EFF notes that it will continue to monitor the case. DreamHost adds in its blog post that it has “been working closely with the Electronic Frontier Foundation and their counsel throughout this process,” but notes “the EFF is not representing us in this case, [but] they understand our arguments and have been lending professional support.”

A court hearing on DreamHost’s challenge to the warrant will be held this Friday in Washington, D.C.

---

SUBHEAD: More reporting on this issue.

By Sam Sacks on 15 August 2017 for District Sentinel -
(https://www.districtsentinel.com/massive-doj-demand-info-dissenters-goes-court/)


Image above: Poster for demonstration to resist Trump Inauguration distributed by DisruptJ20.org and #DisruptJ20. From original article.

The Justice Department will attempt on Friday to defend a warrant requiring an internet host to turn over 1.3 million IP addresses of visitors to a website critical of the Trump administration.

Dreamhost, the subject of the DOJ order, called it a “clear abuse of government authority.” The company has been fighting the warrant for months leading up to Friday’s court date on the matter.

Federal prosecutors are seeking the IP addresses of anyone who visited disruptj20.org, a website hosted by Dreamhost, as well as the website’s database records, and the personal information of administrators and thousands of individuals who interacted with the site.

Disrupt J20 organized one of the many Inauguration Day protests against the incoming Trump administration. Law enforcement officials believe the group was involved in one particular action that allegedly led to the injury of six police officers and $100,000 in property damage in downtown Washington, DC.

After initially receiving the DOJ’s data request, Dreamhost requested the department narrow the scope of its warrant. US officials, instead, filed a motion in DC Superior Court forcing Dreamhost to comply with the warrant. Last week, the company responded by filing it’s own legal arguments against the sweeping DOJ order.

In a blog post on its website, Dreamhost argued that the information the government is seeking “could be used to identify any individuals who used this site to exercise and express political speech protected under the Constitution’s First Amendment.”

“That should be enough to set alarm bells off in anyone’s mind,” the company added.

The digital rights group, the Electronic Frontier Foundation has been providing “professional support” to the web host in its legal battle against the DOJ.

“No plausible explanation exists for a search warrant of this breadth, other than to cast a digital dragnet as broadly as possible,” said EFF senior staff attorney Mark Rumold.

Outside the digital realm, hundreds of people are still facing serious legal jeopardy stemming from the Inauguration Day protests. More than 200 people were charged with felony rioting, and could face up to a decade in prison.

The Washington Post reported in April that DC police had actually infiltrated the group ahead of its planned January protest.
.

Hawaii judge halts Trump travel ban

SUBHEAD: Judge says executive order was issued with a purpose to disfavor a particular religion.

By Rui Kanyena on 16 March 2017 for Civil Beat-
(http://www.civilbeat.org/2017/03/hawaii-judge-to-rule-on-challenge-to-travel-ban-before-it-takes-effect/?mc_cid=e810ff9805&mc_eid=28610da3ab)


Image above:  U.S. District Court Judge Derrick Watson in front of the US Federal Court in Honolulu, Hawaii speaks to media about his ruling on Trump travel ban. From original article.

In a case of legal deja vu, President Donald Trump’s new executive order on immigration suffered a major setback Wednesday, when a federal judge in Honolulu issued a temporary restraining order to keep the travel ban from taking effect nationwide.

n a 43-page opinion, U.S. District Court Judge Derrick Watson ruled that Hawaii met the “burden of establishing a strong likelihood of success on the merits” of its claims against the travel ban — which suspends refugee resettlements and temporarily halts the issuance of new visas to citizens of six Muslim-majority countries.

“A reasonable, objective observer — enlightened by the specific historical context, contemporaneous public statements and specific sequence of events leading to its issuance — would conclude that the executive order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously neutral purpose,” Watson wrote.

Watson’s ruling was a resounding victory for Hawaii, which mounted the first legal challenge against the new order on grounds that it unconstitutionally targets Muslims and discriminates based on national origin.

Hawaii Attorney General Doug Chin, who first sued the Trump administration in February to challenge the original travel ban, hailed the ruling.

“This is what the checks-and-balances system is all about,” Chin said. “The president might make certain decisions, but the way our government works, we also need to be able to take our own stance to check and balance out that whole process.”

Watson’s ruling was also the second major setback for Trump, who has long argued that the travel ban is necessary for national security.

Trump’s original travel ban, issued January 27th, triggered a flurry of legal challenges across the country and ended in a defeat at the 9th U.S. Circuit Court of Appeals, whose three-judge panel unanimously upheld an injunction issued in Seattle.

Speaking at a rally in Nashville, Tennessee, Trump called Watson’s ruling “an unprecedented judicial overreach” and noted that it came from a judge within the “much-overturned 9th Circuit Court.”

To the cheers of supporters in a campaign-style setting, Trump vowed that “we’re going to fight this terrible ruling” and eventually prevail at the U.S. Supreme Court.

“The danger’s clear; the law is clear,” Trump said, adding, “The best way to stop radical Islamic terrorists … is to stop them from entering the country in the first place.”


Image above: Hawaii Attorney General Doug Chin (center) discusses the decision by U.S. District Court Judge Derrick Watson to block the travel ban with Gov. David Ige and other local lawmakers. From original article.

Religious Discrimination

In his ruling, Watson directed much of his attention at assessing whether the new order, like the original travel ban, is a “Muslim ban” dressed up in legal garb — in violation of the First Amendment’s establishment clause.

At a hearing Wednesday, acting U.S. Solicitor General Jeffrey Wall argued that Trump was simply exercising his broad authority to address national security concerns.

Wall also told Watson that the travel ban had been revised to address the concerns raised by 9th Circuit Court, noting that it applies only to visa applicants who have yet to travel to the U.S., removes a provision that singled out Syrian refugees for an indefinite ban and no longer gives preferential treatment to the refugee claims of religious minorities.

But Watson was having none of it.

Watson ruled that, despite the revisions, the new order still amounts to religious discrimination — a step toward the “total and complete shutdown of Muslims entering the United States” that Trump promised on the campaign trail.

Watson chided the Trump administration, in particular, for suggesting that, since the travel ban doesn’t apply to all Muslim-majority countries, it has no “religious animus.”

“The illogic of the government’s contention is palpable,” Watson wrote. “The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed. The court declines to relegate its establishment clause analysis to a purely mathematical exercise.”

Last-Minute Challenges

Watson’s ruling came on a day in which two other judges held hearings to decide whether to issue an injunction against the travel ban.

Six hours before Watson’s hearing, U.S. District Judge Theodore Chuang in Greenbelt, Maryland, heard oral arguments on a lawsuit brought by refugee aid groups but declined to issue a ruling from the bench.

Chuang indicated that his ruling, when it does come, might not be nationwide in scope.

In Seattle, U.S. District Judge James Robart, who blocked the original travel ban, held a hearing to consider the claims of four Washington residents who are concerned that the new order will bar their relatives from entering the U.S. But he has yet to issue a ruling.

Meanwhile, Washington Attorney General Bob Ferguson cheered Hawaii’s success.

“A win for Hawaii is a win for all of us,” Ferguson said. “Trump is piling up defeat after defeat after defeat. And we’ll all be here working to make sure his streak continues.”

Oregon Attorney General Ellen Rosenblum, who was in Honolulu to attend the meeting of the Conference of Western Attorneys General, said Watson’s ruling reflected Hawaii’s aloha spirit.

“We’re so happy to stand together today with your state with this very, very significant victory for inclusivety and for saying loud and clear against discrimination,” said Rosenblum, who, along with attorneys general from 13 states and the District of Columbia, filed an amicus brief in Hawaii’s lawsuit.

Hakim Ouansafi, president the Muslim Association of Hawaii, said Watson’s ruling will protect “all the families affected by this Muslim ban.”

“They say precious things come in small packages and, in this case, great things for America and the world came from this small state of ours,” Ouansafi said. “Very proud of the great work (Attorney General) Doug Chin and his team did and hope that President Trump can concentrate on truly protecting this country as opposed to concentrating on fulfilling an unconstitutional and un-American campaign pledge.”


.

Homeland Security goes rogue

SUBHEAD: Federal court order restricting Trump's ban on "Muslim" immigration being ignored by DHS.

By M. Hanrahan & P McCausland  on 29 January 2017 for NBC News -
(http://www.nbcnews.com/news/us-news/trump-immigration-ban-still-place-despite-court-ruling-says-dhs-n713696)


Image above: Protest in Seattle against Trump immigration ban. From original article.

Hours after a federal judge issued a stay on President Donald Trump's executive order temporarily restricting entry to the U.S. from seven Muslim-majority countries, the Department of Homeland Security (DHS) and a senior White House adviser issued robust responses, emphasizing that the order remains in force.

In a statement issued in the early hours of Sunday, the Department said: "President Trump's Executive Orders remain in place — prohibited travel will remain prohibited, and the U.S. government retains its right to revoke visas at any time if required for national security or public safety."

It added that the department will "continue to enforce all of President Trump's Executive Orders in a manner that ensures the safety and security of the American people."

In addition, Stephen Miller, a senior adviser to the White House, told the Associated Press that nothing in the judge's order "in anyway impedes or prevents the implementation of the president's executive order which remains in full, complete and total effect."

The responses came just hours after federal Judge Ann Donnelly of the Eastern District of New York granted an emergency stay on parts of the order late Saturday. Her ruling came in response to a lawsuit brought by the ACLU on behalf of two Iraqi refugees who had been detained at New York's John F. Kennedy airport.

The stay will prevent the government from deporting citizens from the affected countries that had already arrived in the U.S.The ACLU estimated that around 200 people would be affected by the ruling.

For travelers outside of the U.S. however, even those with valid visas, the ruling will not change the restrictions imposed on them by the order.

Who is affected by Trump's executive order?

• Citizens of seven Muslim-majority nations - Iraq, Iran, Syria, Somalia, Sudan, Libya and Yemen will be prohibited from entering the U.S. for 90 days.
• Green card holders from any of those countries currently outside of the U.S. will need to report to a local U.S. consulate for "extra vetting," and admitted or rejected on a case-by-case basis, according to administration officials.
• Refugees seeking asylum in the U.S.: All refugees will be banned from entering the country for 120 days. Refugees from Syria will be banned indefinitely.
• Anyone with U.S. citizenship will not be affected.

A DHS spokesperson on Saturday told the Associated Press that foreign-born U.S. residents who could have been barred from re-entering the United States under Trump's immigration order have been allowed back into the country.

The official said all green card holders from the seven countries who sought to enter the U.S. Saturday were granted special permission.

Not all aspiring immigrants have been so lucky, however. Since the order has been in force, stories have been emerging about families and individuals aiming to rejoin their loved ones being refused entry to the U.S.

While a dozen travelers were being held at New York's John F. Kennedy International Airport on Saturday after they arrived, many more across the world were told they would not be able to board connecting flights to their destination in the U.S.

Amir Rashidi, an Iranian immigrant who lives in Seattle, told NBC News that his mother — who had become an American citizen — sponsored his sister's family to come to the United States. They had all obtained green cards, a process that can take years.

All but one arrived safely in Seattle. Rashidi's niece, 27-year-old Mahsa Fazmali, was slated to arrive on Friday, but then Trump signed the executive order.

Fazmali flew without a problem from Tehran to Dubai, and she had even found her seat on her flight to the Emerald City.

"She was on the plane sitting on her seat," her uncle said.

But then her name was called over the PA system and she was ordered to deplane with her belongings. According to Rashidi, airport officials could not explain why her green card would not allow her to travel to the United States.

She and the other immigrants who were looking for answers only learned of the travel ban from a nearby television turned to the news. Fazmali then flew back to Tehran.

Related: Officials Say Visas Were Being Revoked Prior to Trump's Executive Order

---

By Tyler Durden on 29 January 2017 for Zero Hedge -
(http://www.zerohedge.com/news/2017-01-29/homeland-security-states-it-will-continue-enforce-trumps-travel-ban)

Following a tumultuous night, in which late on Saturday evening a Brooklyn Federal Judge issued a partial ban on Trump's immigration order, on Sunday morning the Department of Homeland Security issued a statement saying it planned on continuing to “enforce all of the president’s executive orders in a manner that ensures the safety and security of the American people.”

The DHS said the court order would not affect the overall implementation of the White House order and the court order affected a small number of travelers who were inconvenienced by security procedures upon their return, Fox News first reported.

“The president’s executive orders remain in place—prohibited travel will remain prohibited, and the U.S. government retains its right to revoke visas at any time if required for national security or public safety,” the statement said.

However, the DHS also added it would "comply with judicial orders" not to deport detained travelers affected by President Donald Trump's order.

In a separate report from the NY Post, the ACLU was said to be getting “multiple reports” that federal customs agents are siding with President Trump — and willfully ignoring a Brooklyn federal judge’s demand that travelers from seven Muslim countries not be deported from the nation’s airports.

“The court’s order could not be clearer… they need to comply with the order,” Omar Jadwat, director of the ACLU’s Immigrants Rights project, told The Post late Saturday. “It’s enough to be a serious concern,” Jadwat said of the reports.

Stephen Miller, a senior adviser to the White House, said, "Nothing in the Brooklyn judge's order in anyway impedes or prevents the implementation of the president's executive order which remains in full, complete and total effect."

As reported before, just before 9pm on Saturday, U.S. District Judge Ann Donnelly in New York issued an emergency order temporarily barring the U.S. from deporting people from nations subject to President Donald Trump's travel ban, saying travelers who had been detained had a strong argument that their legal rights had been violated.

The stay was ordered after lawyers for the ACLU filed a court petition on behalf of people from seven predominantly Muslim nations who were detained at airports across the country as the ban took effect.

Homeland Security said the order affects a small amount of people traveling internationally. The DHS said the order was the “first step towards reestablishing control over America's borders and national security.”

Prior to the ruling, Trump’s travel ban sparked protests around the country at several international airports. Demonstrators ranged from a few dozen people to thousands. Protests are scheduled to continue on Sunday at least seven cities: Orlando, Boston, Philadelphia, Atlanta, Seattle, Washington and Chicago, mostly at airports.

Under Trump's order, it had appeared that an unknown number of foreign-born U.S. residents now traveling outside the U.S. could be stuck overseas for at least 90 days even though they held permanent residency "green cards" or other visas.  

However, an official with the DHS said Saturday night that no green-card holders from the seven countries cited in Trump's order had been prevented from entering the U.S. Trump also billed his sweeping executive order as a necessary step to stop "radical Islamic terrorists" from coming to the U.S.

It included a 90-day ban on travel to the U.S. by citizens of Iraq, Syria, Iran, Sudan, Libya, Somalia or Yemen and a 120-day suspension of the U.S. refugee program.

Early on Sunday, Trump in his first official statement since the Brooklyn Court ruling stayed his ground and tweeted that "our country needs strong borders and extreme vetting, NOW. Look what is happening all over Europe and, indeed, the world - a horrible mess!

The DHS said in the statement that they “will faithfully execute the immigration laws, and we will treat all of those we encounter humanely and with professionalism.” They also added that they plan to ensure the safety of the American people by making sure those entering the U.S. pose no threat.
The full DHS statement is below:

Department Of Homeland Security Response To Recent Litigation

The Department of Homeland Security will continue to enforce all of President Trump’s Executive Orders in a manner that ensures the safety and security of the American people. President Trump’s Executive Orders remain in place—prohibited travel will remain prohibited, and the U.S. government retains its right to revoke visas at any time if required for national security or public safety. President Trump’s Executive Order affects a minor portion of international travelers, and is a first step towards reestablishing control over America's borders and national security.

Approximately 80 million international travelers enter the United States every year. Yesterday, less than one percent of the more than 325,000 international air travelers who arrive every day were inconvenienced while enhanced security measures were implemented. These individuals went through enhanced security screenings and are being processed for entry to the United States, consistent with our immigration laws and judicial orders.

The Department of Homeland Security will faithfully execute the immigration laws, and we will treat all of those we encounter humanely and with professionalism. No foreign national in a foreign land, without ties to the United States, has any unfettered right to demand entry into the United States or to demand immigration benefits in the United States. 

The Department of Homeland Security will comply with judicial orders; faithfully enforce our immigration laws, and implement President Trump’s Executive Orders to ensure that those entering the United States do not pose a threat to our country or the American people.

.

Pipeline temporarily halted

SUBHEAD: Dakota Access Pipeline construction temporarily halted as protests rage.

By Ryon Koronowski on 6 September 2016 for Think Progress -
(https://thinkprogress.org/construction-bakken-pipeline-temporarily-halt-over-part-of-route-as-protests-rage-4ffef558f1a#.ytvv7d5y2)


Image above: Jon Don Ilone Reed, an Army veteran and member of South Dakota’s Cheyenne River Sioux Tribe, at an oil pipeline protest near the Standing Rock Sioux reservation in southern North Dakota, Aug. 25, 2016. Reed said he fought in Iraq and is now fighting “fighting for our children and our water.” Photo by James McPherson. From original article.

The emergency court hearing followed a weekend of protests that turned violent in North Dakota.

A federal judge brokered a temporary agreement in an emergency hearing over the construction of the Bakken pipeline, or Dakota Access pipeline.

The Standing Rock Sioux Tribe agreed to the deal along with the pipeline’s builders, as well as the Army Corps of Engineers. It halts construction on some, but not all, of the 1,172-mile pipeline that would pump oil from the fracked shale deposits in North Dakota to an oil hub in Illinois.

U.S. District Judge James Boasberg partially halted construction until he reached a more complete decision on Friday. But the judge did not halt work from progressing on nearby private land.

An attorney for the tribe said it is grateful for the partial stoppage but “disappointed that some of the important sacred sites that we had found and provided evidence for will not be protected.”

The fight over the pipeline’s construction has prompted protests that turned violent over the weekend. Construction crew bulldozers went 20 miles out of their way to demolish sacred sites along the pipeline’s pathway in North Dakota, according to Tim Mentz, former historic preservation officer for the Standing Rock Sioux Tribe.

When protesters demonstrated near the construction site on Saturday morning, private security officers hired by the pipeline’s owner, Energy Transfer Partners, confronted them with dogs and pepper spray.

Injuries were reported on both sides, with some security personnel and dogs suffering minor injuries, and several protesters reporting injuries from dog bites, including a child and a pregnant woman. Dozens reported being pepper sprayed.

The tribe has gone to court to challenge the permits granted by the Army Corps of Engineers, and while the Corps has not changed its opinion about the way in which the permits were granted, they did agree Monday that a restraining order against Dakota Access LLC was warranted.

Mentz said that the tribe’s historical preservation experts had only recently been granted access to private land that would be disturbed by construction when, after a short examination, they found signs of burial rock cairns of historic significance.

The Dakota Access pipeline would carry oil across four states from North Dakota to Illinois through South Dakota and Iowa, cost $3.8 billion to construct, and enable higher production from the Bakken Formation. This shale deposit became the center of the U.S. fracking boom last decade, though production has slowed as global oil prices have dropped.

“On Saturday, Dakota Access Pipeline and Energy Transfer Partners brazenly used bulldozers to destroy our burial sites, prayer sites and culturally significant artifacts,” Tribal Chairman David Archambault II said.

“They did this on a holiday weekend, one day after we filed court papers identifying these sacred sites. The desecration of these ancient places has already caused the Standing Rock Sioux irreparable harm. We’re asking the court to halt this path of destruction.”

The Standing Rock Sioux Tribe filed a temporary restraining order on Sunday following the violent altercation on Saturday.

Protesters made their position clear outside the U.S. District Court building in Washington, DC during the emergency hearing.

.

Maui GMO moratorium back in court

SUBHEAD: Federal judge struck down voter-approved initiative last year. Shaka movement resurrects it.

By Brian Perry on 6 February 2016 for Maui News -
(http://www.mauinews.com/page/content.detail/id/606695/Appeals-court-to-hear-GMO-moratorium-case.html)


Image above: Demonstrators supporting Maui GMO moratorium send message to justice system. From original article.

The 9th Circuit Court of Appeals will hear arguments about whether to overturn a federal judge's ruling last year that struck down a Maui County voter-approved moratorium on genetically modified organisms.

In a ruling Thursday, the appeals court denied a motion to dismiss the appeal by the SHAKA Movement, opening the door for arguments before the court headquartered in San Francisco.

SHAKA attorney Michael Carroll called the ruling "really good news."

"The court denied the motion to dismiss, allowing the court to hear full arguments on the appeal," he said Friday. "Now the court will have to consider all our substantive arguments."

Carroll said he also was pleased that the court ruled in favor of allowing consideration of the Center for Food Safety to file an "amicus curiae," or "friend of the court" brief, in the case, which he called "another plus for our joint efforts."

The 9th Circuit also will be considering requests for amicus briefs from Moms On a Mission Hui, Moloka'o Mahi'ai and Gerry Ross.

On Friday afternoon, Monsanto said its motion to dismiss the appellant's case challenged the appeal, unsuccessfully, for lack of standing, but that the denial of the motion was without prejudice, meaning the case had not been decided on its merits.

"The court of appeals for the 9th Circuit will now move to consider the merits of the case and instructed that the standing arguments could be raised in the merits phase of the case," the company's statement said. "Monsanto believes the federal district court in Hawaii reached the correct conclusion invalidating the ballot initiative, and we will vigorously defend this position."

There was no immediate comment from Maui County.

The appeals court scheduled deadlines for briefs in the case.

The SHAKA appeal stems from last year's ruling by U.S. District Judge Susan Oki Mollway to declare the Maui County GMO moratorium invalid and unenforceable. She said that the moratorium exceeded the county's authority and was pre-empted by federal and state law.

SHAKA attorneys argued that Mollway erred in the ruling by citing a federal law that is not applicable to the Maui County moratorium ordinance.

The judge's ruling "overrode (the people's) rights guaranteed under the Hawaii State Constitution and invalidated the election results of county residents trying to protect themselves from unique harms affecting health, safety, the environment, natural resources, as well as Native Hawaiian rights," the appellants' brief says.

Mollway's ruling shelved a SHAKA attempt to implement the moratorium that voters narrowly approved in November 2014. The ordinance would have outlawed the cultivation, growth or testing of genetically engineered crops until scientific studies determined their safety and benefits.

The moratorium initiative drew more than 23,000 votes, or 50.2 percent, in favor. Those opposed were 47.9 percent. The vote came despite biotech companies and their allies spending nearly $8 million - the most ever in a Hawaii election by far - to oppose it.

Nine days following the general election, the moratorium ordinance was challenged in court by Monsanto, Dow Agrigenetics, other seed companies and their supporters. Mollway ruled in their favor June 30.

Leaders of the SHAKA Movement, a citizens group that gathered enough signatures for the first-ever ballot initiative in the county in 2014, filed an appeal Nov. 30 with the 9th Circuit Court of Appeals.

Maui County is "ground zero" for the testing and development of genetically engineered seed crops because of Hawaii's long growing seasons, SHAKA attorneys say. GMO agricultural operations use more than 80 different chemicals, creating "chemical cocktails" with unknown health and environmental impacts, they say.

* Brian Perry can be reached at bperry@mauinews.com..

Federal Court's NSA smackdown

SUBHEAD: Snowden vindicated as federal judge orders shutdown of NSA illegal domestic spying.

By Claire Bernish 10 November 2015 for AntiMedia -
(http://theantimedia.org/snowden-vindicated-as-judge-shuts-down-nsa-bulk-spying-in-epic-smackdown/)


Image above: D.C. Federal District Court Judge Richard Leon.  From (http://www.newyorker.com/news/john-cassidy/in-praise-of-independent-judges-from-learned-hand-to-richard-j-leon).

On Monday, a federal judge ordered a halt to the NSA’s bulk metadata collection program in a reiteration and confirmation of a previous ruling that found the practice “unconstitutional” — and even “Orwellian.”

“This court simply cannot, and will not, allow the government to trump the Constitution merely because it suits the exigencies of the moment,” stated Washington, D.C. District Court Judge Richard Leon in his mordant 43-page ruling.

Edward Snowden immediately hailed the decision, pointing out significant passages from the court to his millions of Twitter followers. Of particular importance — and, indeed, at the heart of both known and potentially unknown domestic spy programs — remains the impossible reckoning between Fourth Amendment protections and the government’s claims of a national security imperative.

“Moved by whatever momentary evil has aroused their fears, officials — perhaps even supported by a majority of citizens — may be tempted to conduct searches that sacrifice the liberty of each citizen to assuage the perceived evil. But the Fourth Amendment rests on the principle that a true balance between the individual and society depends on the recognition of ‘the right to be let [sic] alone — the most comprehensive of rights and the right most valued by civilized men,’” the ruling stated, with emphasis added by Snowden.

In another tweet, the whistleblower summarized the ruling: “Judge rejects government claim that so long as you aren’t targeted individually, dragnet searches of your life are OK.” xxx

Though Leon’s judgment arrives mere weeks before metadata collection would naturally end under the USA Patriot Act’s Section 215 upon implementation of the newly passed USA Freedom Act, he emphasized potential implications of any undue delay in bringing such spying to a close, stating:

“In my December 2013 Opinion, I stayed my order pending appeal in light of the national security interests at stake and the novelty of the constitutional issues raised. I did so with the optimistic hope that the appeals process would move expeditiously. However, because it has been almost two years since I first found that the NSA’s Bulk Telephony Metadata Program likely violates the Constitution and because of the loss of constitutional freedoms for even one day is a significant harm […] I will not do that today.”

In other words, the judge harshly repudiated the government’s already poorly disguised emphasis on national security to justify bulk collection as wholly secondary to the individual’s right to privacy under the Constitution. Leon’s 2013 ruling was struck down in August this year, when an appeals court found the plaintiff in Klayman v. Obama had not established the legal standing necessary to dispute the constitutionality of the NSA program. Once amended appropriately, the judge was able to make a ruling on the original case and issue an injunction to halt bulk collection.

In this ruling, Leon sharply admonished the appeals court for its reversal, saying:

“Because the loss of constitutional freedoms is an ‘irreparable injury’ of the highest order, and relief to the two named plaintiffs would not undermine national security interests, I found that a preliminary injunction was not merely warranted — it was required.” [emphasis by the judge]

Seemingly irritated at the insult of the government maintaining its position on the necessity of bulk collection while ignoring the preceding twenty-two months to find less invasive means to achieve the same goal, Leon searingly stated:

“To say the least, it is difficult to give meaningful weight to a risk of harm created, in significant part, by the Government’s own recalcitrance.”

Pointing out the painfully obvious, Leon derided fictitious claims the government needs bulk data collection at all, considering the program thwarted exactly zero terror attacks throughout its entire duration. In rebuttal to claims the contentious NSA program remains reasonably effective, the judge flatly stated:

“This is a conclusion I simply cannot reach given the continuing lack of evidence that the Program has ever actually been successful as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.”

Pulling no punches, Leon concludes with a scathing challenge to the naïveté and blind acceptance Congress mistakenly presumed the public and court would give the contentiously invasive program:

“To be sure, the very purpose of the Fourth Amendment would be undermined were this court to defer to Congress’s determination that individual liberty should be sacrificed to better combat today’s evil.”

Employing linguistic subtlety which, at times, borders on a verbal smackdown, Judge Richard Leon brilliantly sent the NSA, Congress, and rest of the government a message that couldn’t be denied this second time around:  

Nobody buys your bullshit.

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Jackson County GMO ban upheld

SUBHEAD: A federal judge has upheld the Jackson Counnty, Oregon, GMO crop ban legislation.

By Info on 6 June 2015 for Shaka Movement -
(http://islandbreath.blogspot.com/2015/06/jackson-county-gmo-ban-upheld.html)


Image above: Supporters of the Jackson County measure to ban GMO crops react 5/20/2014 after returns show it passing by a wide margin. From (http://www.oregonlive.com/politics/index.ssf/2014/05/jackson_county_gmo_crops_ban_w.html).

Great News for SHAKA and the Maui GMO Crop Moratorium: A Federal Judge upholds the Jackson Counnty, Oregon, GMO Crop Ban. This can help Maui by setting a precident in Federal Court. Our next court date is Monday, June 15.

A federal judge just ruled in favor of Jackson County's ban on genetically engineered crops! This is a major win for farmers and families who want to keep Monsanto OUT of our food supply.

Just last year, farmers and local activists in Jackson County voted overwhelmingly to ban GMOs after organic farmers found their crops were being contaminated by Roundup-resistant seeds made by Syngenta, the agrochemical giant.

But even though Jackson County voters passed the GMO ban by a 2:1 margin, Monsanto and their Big Chem allies still refused to accept defeat. They took their fight to the courts in a desperate last-ditch attempt to overturn the will of the people -- and now they've been stopped in their tracks.

This victory proves that when grassroots activists join together, we can take on the biggest corporations – and win.

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GMO ban litigation shifts gears

By Mateusz Perkowski on 2 June 2015 for Capital Press -
(http://www.capitalpress.com/apps/pbcs.dll/section?category=staff&template=staffProfilePages&staffID=mperkowski)

A federal judge has also found that lawmakers intended to permit the GMO ban when they excluded Jackson County from a 2013 bill that pre-empted other local governments from regulating biotech crops.


Litigation over the genetically engineered crop ban in Oregon’s Jackson County is now expected to focus on whether the government took farmers’ property without just compensation.

A federal judge on May 29 rejected the argument by two alfalfa farms that Oregon’s “right to farm” law rendered the prohibition invalid.

U.S. Magistrate Judge Mark Clarke said the “right to farm” statue prohibits ordinances and lawsuits that treat a common farming practice as a trespass or nuisance, but it does not protect activities that harm commercial agriculture.

Oregon’s legislature passed the law to shield farmers from urban encroachment and complaints about smells, noises and other irritations, he said.

“While farming practices may not be limited by a suburbanite’s sensitivities, they may be limited if they cause damage to another farm’s crops,” Clarke said.

Growers are able to file lawsuits over such grievances under the “right to farm” statute, and Jackson County’s ordinance simply “serves to prevent such damage before it happens” — even if it hasn’t yet occurred, he said.

While Clarke has dismissed the farmers’ arguments regarding “right to farm,” their claim seeking $4.2 million in compensation from Jackson County remains alive in the case.

The growers, Schulz Family Farms and James and Marilyn Frink, argue that forcing them to remove about 300 acres of herbicide-resistant “Roundup Ready” alfalfa amounts to the county condemning their property for public use, which requires just compensation.

“Their right to make a living, support their families and contribute to the local economy will be seriously damaged by the ban — costing them millions of dollars,” said Shannon Armstrong, attorney for the farmers, in an email.

The lawsuit argues that Jackson County’s ordinance is a form of “inverse condemnation,” in which the government takes private property without using its power of eminent domain.

It would be easier for the farmers to prevail if they convince the judge that the ban on genetically modified organisms is a “physical taking” of their property, said Paul Sundermier, an Oregon attorney specializing in takings and condemnation cases.

They can also claim that the GMO ban is a “regulatory taking,” but this is a tougher legal route because the plaintiffs would have show the ordinance eliminated all the economically viable use of their property, Sundermier said.

“Regulatory takings are very difficult to prove,” he said.

The question would then be whether removing the alfalfa completely wipes out its value, since the farmers may still be able to sell the hay even if they ultimately kill the perennial plant.

Even as the case shifts to government takings, it’s possible that the “right to farm” argument may be resurrected on appeal.

The plaintiffs could wait until the entire case is finished before challenging Clarke’s findings or obtain a partial judgment that they could appeal earlier, among other options.

Capital Press was unable to reach Jackson County for comment. The ordinance was set to take effect on June 5 but the county previously agreed not to enforce the prohibition until there’s a judgment in the case.

The Center for Food Safety, a nonprofit critical of biotech crops, considers the ruling a “big win” but expects the plaintiffs will challenge it before the 9th U.S. Circuit Court of Appeals, said George Kimbrell, senior attorney for the group.

The judge has recognized that genetically engineered crops pose a significant commercial threat to non-biotech growers, which was a key issue in the litigation, Kimbrell said. “This case is a resounding affirmation of the right of farmers to protect themselves from GE contamination.”

Most Oregon counties are pre-empted from regulating GMOs under Senate Bill 863, passed by lawmakers in 2013. The legislature excluded Jackson County from the legislation because its GMO prohibition initiative was already on the ballot when SB 863 was enacted.

Roughly two-thirds of Jackson County voters approved the measure in a 2014 election. The county includes the cities of Ashland and Medford.

The alfalfa farmers argued that SB 863 did not affect the “right to farm” law, which they interpreted as protecting their genetically engineered alfalfa crops from being destroyed regardless of the GMO ban.

The judge disagreed, pointing to testimony from lawmakers representing the county who claimed the ordinance was necessary to avoid unwanted cross-pollination between biotech crops and those that are conventional or organic.

Former Gov. John Kitzhaber also stated that Jackson County was specifically exempt from Senate Bill 863, the state pre-emption law, when he pushed lawmakers to approve it, said Clarke.

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Judge sides with Big-Ag

SOURCE: Shannon Rudolph (shannonkona@gmail.com)
SUBHEAD: Court strikes down ban on most genetically engineered crops as Big-Ag undermines will of Hawaiians.

By Staff on 26 November 2014 for Center for Food Safety -
(http://www.centerforfoodsafety.org/press-releases/3628/chemical-corporations-undermine-the-will-of-the-people-of-hawaii-county#)


Image above: demonstration against Sygenta's Kunia Gate on Big Island on 7/13/12. From (http://www.dougnote.com/2012/12/aina-fest-to-celebrate-active-year.html).

U.S. Magistrate Judge Barry Kurren today ruled Hawaii County Ordinance 13-121 invalid because the subject matter was one that must be regulated at the state level. The ordinance, passed by the County Council 6-3 in November 2013, would have banned most genetically engineered (GE) crops from being grown on the Big Island, with the exception of papaya.

Center for Food Safety and Earthjustice helped the county defend the law against the Biotechnology Industry Organization – the association for biotech companies like Monsanto and Dow Chemical.

The decision concluded that state “preemption” of the county ordinance is implied by state plant laws, despite the fact none of them even mention genetically engineered crops or were intended to regulate them. The court also refused the nonprofits’ request to send the state law question to the Hawaii Supreme Court to decide, despite being important state law questions of first impression.

Finally, the court rejected the chemical companies’ arguments that county and state regulation of commercialized genetically engineered crops was prohibited by federal law, but concluded federal law did prohibit regulation of some, but not all, experimental plantings.

The decision follows on the heels of a similar decision by the same judge regarding Kauai County Ordinance 960, a decision currently being appealed.

Additionally, the residents of Maui County just passed a ballot initiative to halt GE crop production until public safety tests can be conducted. That initiative is also being challenged by the biotech industry in court.

"Hawaii Island is a unique and important place,” said Nancy Redfeather, an organic farmer on the Big Island. “I am deeply disappointed that the court would agree with the chemical companies' arguments, stripping us of our right to make local agricultural decisions.”

Earthjustice attorney Paul Achitoff commented:

“Given Judge Kurren’s decision invalidating the Kaua`i County ordinance this ruling comes as no surprise. We believe he was wrong in concluding in both cases that Hawai`i law preempts county regulation of genetically engineered crops, and we’re confident the Court of Appeals will agree with us.”

“This decision is legally flawed and unfortunate, but the movement to save Hawai`i from becoming a poisoned paradise will not be deterred,” said George Kimbrell, senior attorney for Center for Food Safety. “We will continue to stand and defend the will of Hawaiian people to protect themselves, their local farms, and their environment from the harms of genetically engineered crops and their pesticides.”

Citing public health and environmental concerns, Ordinance 13-121 (previously Bill 113) passed the County Council with large public support. The ordinance banned the growing of new genetically engineered crops on the island. It also prohibited open-air testing of GE crops and included a $1000 per day fine for violations. The bill exempted crops that are already grown on the island, like the Rainbow papaya.

Large biotechnology companies such as Monsanto and Syngenta experiment with genetically engineered crops in Hawai`i because it offers year round growing conditions. Most of these crops are engineered to resist herbicides and pesticides.

Testing these crops means repeated spraying of dangerous chemicals near neighborhoods, schools, and waterways. In 2013 alone there were 1124 field test sites; California only hosted 184 sites. Across the state, residents are seeking to halt the practice.

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Is Judge Connected to GMO Company?

By Jon Rappoport on 14 November 2014 for NoMoreFakeNews.com -
(http://jonrappoport.wordpress.com/2014/11/24/is-judge-in-maui-gmo-case-connected-to-monsanto/)


Image above: Faye Watenabe Kurren, former President, Tesoro Hawaii; President & CEO, Hawaii Dental Services (HDS); Chair, University of Hawaii Foundation Board of Trustees; Trustee, The Nature Conservancy; Director, First Hawaiian Bank; Director, First Insurance Company of Hawaii, Inc. She is a graduate of Punahou School; William S. Richardson School of Law graduate, 1979 (classmate of former Bishop Estate trustee Gerard A. Jervis and Judge Reynaldo D. Graulty); wife of Judge Barry Kurren. From (https://sites.google.com/site/thepunahoualbum/home/faye-watanabe-kurren) and (https://sites.google.com/site/justicevsharmonwitnesses/home/faye-w-kurren).

After the citizens of Maui just voted to stop Monsanto and Dow from further GMO development, Monsanto filed suit.

Barry Kurren is the US federal magistrate overseeing the court battle between Maui and Monsanto.

Judge Kurren’s wife, Faye, is the past president of the University of Hawaii Foundation, which is the fund-raising arm of the University.

On September 6, 2011, Monsanto donated $500,000 to the University to establish a Monsanto Research Fellows Fund for “plant science.”


On July 8, 2010, Monsanto gave $100,000 to University for its scholarship fund.

Judge Kurren’s wife, Faye, has also served as a trustee of the Nature Conservancy, which has a long-established relationship with Monsanto. From the Conservancy’s website: “Monsanto has supported the Nature Conservancy for years.”


Presently, Kurren’s wife is a board member of the First Hawaiian Bank. On its website, there is this quote of “GMO praise” (page 4 of 6):

“Kauai is an ideal research laboratory for the seed corn industry…there are currently five parent seed corn operations on the island: [biotech GM giants] Pioneer Hi-Bred…Syngenta, Dow Monsanto, and BASF. Dow Agrosciences recently leased 3,400 acres of former sugar land…”

These academic, corporate, non-profit, bank connections are part of Hawaii’s overall social and political networks, which form a “community of interest.”

What would happen if Judge Kurren suddenly ruled against Monsanto? How many shocks would ripple out into protected interests? How many social friendships would suddenly collapse? How embarrassing would it be for Faye Kurren?

How much easier would it be to “honor” those connections and friendships and moneyed interests by siding with Monsanto?

See also:

Note to the Hawaii tourism industry: Judge Kurren is not your friend

Tainted Federal Judge just screwed the people of the Big Island

Exposed: the Judge in the Monsanto-Maui lawsuit is tainted

Official records show massive spraying of restricted pesticides on ...

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Where Big-Ag is taking Hawaii

SUBHEAD: Photos from Argentina’s farms, documenting an agrochemical plague created by Monsanto.

By Natacha Pisarenko on 21 October 2013 for the Denver Post -
(http://blogs.denverpost.com/captured/2013/10/21/photos-argentina-agrochemicals/6446/) 


Image above: Silvia Alvarez leans against her red brick home while keeping an eye on her son, Ezequiel Moreno, who was born with hydrocephalus, in Gancedo, in Chaco province, Argentina. 

Alvarez blames continuous exposure to agrochemical spraying for two miscarriages and her son's health problems. Chaco provincial birth reports show that congenital defects quadrupled in the decade after genetically modified crops and their related agrochemicals arrived. From original photo essay.
American biotechnology has turned Argentina into the world’s third-largest soybean producer, but the chemicals powering the boom aren’t confined to soy and cotton and corn fields.

They routinely contaminate homes and classrooms and drinking water. A growing chorus of doctors and scientists is warning that their uncontrolled use could be responsible for the increasing number of health problems turning up in hospitals across the South American nation.

In the heart of Argentina’s soybean business, house-to-house surveys of 65,000 people in farming communities found cancer rates two to four times higher than the national average, as well as higher rates of hypothyroidism and chronic respiratory illnesses. Associated Press photographer Natacha Pisarenko spent months documenting the issue in farming communities across Argentina.

Most provinces in Argentina forbid spraying pesticides and other agrochemicals next to homes and schools, with bans ranging in distance from 50 meters to as much as several kilometers from populated areas.

The Associated Press found many cases of soybeans planted only a few feet from homes and schools, and of chemicals mixed and loaded onto tractors inside residential neighborhoods.

In the last 20 years, agrochemical spraying has increased eightfold in Argentina- from 9 million gallons in 1990 to 84 million gallons today.

Glyphosate, the key ingredient in Monsanto’s Round Up products, is used roughly eight to ten times more per acre than in the United States.

Yet Argentina doesn’t apply national standards for farm chemicals, leaving rule-making to the provinces and enforcement to the municipalities. The result is a hodgepodge of widely ignored regulations that leave people dangerously exposed.

Click on link to see photographic essay of the impact of GMOs and glyphosate (RoundUp) on the local rural people of Argentina.
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Rev. Roger Christie still in jail

SUBHEAD: After embarrassing the federal government on marijuana policy he's been held without bail for three years.

By Staff on 19 March 2013 for Hawaiian News Daily -
(http://hawaiinewsdaily.com/2013/03/hawaii-roger-christie-resolution-headed-for-senate-hearing/)


Image above: Roger Christie in better days. free on the beach. From (http://www.tokeofthetown.com/2012/11/minister_still_behind_bars_on_marijuana_charge.php).


The Senate Committee on Public Safety, Intergovernmental and Military Affairs has scheduled SCR75/SR42 Urging the Federal Government to Release Roger Christie on Bail Pending Trial.

The resolutions are scheduled for hearing on Thursday, March 21, 2013 at 2:45pm in room 224. Here is the link to the hearing notice.

Christie has been detained at the Honolulu Federal Detention Center on marijuana charges since his arrest by federal authorities on 8 July 2010.

Christie’s 13 co-defendants were released on bail pending trial following their mass arrests nearly 3 years ago.

Federal prosecutors have opposed Christie’s release on bail on the basis that his long history as a marijuana activist makes him a “danger to the community.” He has been denied bail 7 times by a series of federal judges.

Another Hawaii State Senate Resolution, S.R. No. 12, comes close to accusing federal authorities of retaliation for Christie’s role in ending “Operation Green Harvest“, a federal marijuana eradication program, and for his efforts to pass the Lowest Law Enforcement Priority Ordinance on the Big Island in 2008.

According to SR No. 12, “Reverend Christie’s political activities have caused annoyance and embarrassment to the Federal Government leading some Hawaii residents to suggest that his denial of bail is based on his prior political acts rather than any ‘danger” he poses;”

Persons wishing to offer comments for SCR75/SR42 should submit testimony at least 24 hours prior to the hearing. Testimony should indicate:

• Testifier’s name with position/title and organization;
• The Committee(s) to which the comments are directed;
• The date and time of the hearing; and
• Measure number.

To submit testimony to the Senate Committee on Public Safety, Intergovernmental and Military Affairs:

In person: Deliver to Committee Clerk in room 231.
Submit Online Testimony: (Click here and then click SUBMIT TESTIMONY)
E-mail: PSMtestimony@capitol.hawaii.gov

Indicate the measure and date and time of the hearing. Submit testimony to only ONE committee that is indicated on the hearing notice; 10MB limit)
Fax: 808-586-6361

THE SENATE
THE TWENTY-SEVENTH LEGISLATURE
REGULAR SESSION OF 2013

COMMITTEE ON PUBLIC SAFETY, INTERGOVERNMENTAL AND MILITARY AFFAIRS
Senator Will Espero, Chair
Senator Rosalyn H. Baker, Vice Chair

NOTICE OF HEARING

DATE: Thursday, March 21, 2013
TIME: 2:45 p.m.
PLACE: Conference Room 224, State Capitol, 415 South Beretania Street

PSM, WAM
SCR 75 / SR 42

Status & Testimony / Status & Testimony

URGING THE FEDERAL GOVERNMENT TO RELEASE ROGER CHRISTIE ON BAIL PENDING TRIAL.

PSM, JDL

Click here to submit testimony to the Senate Committee on Public Safety, Intergovernmental and Military Affairs.

Testimony may be submitted up to 24 hours prior to the start of the hearing.

FOR FURTHER INFORMATION, PLEASE CALL THE COMMITTEE CLERK AT (808)586-6360.
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Obama use of NSLs unconstitutional

SUBHEAD: Federal district judge Susan Illston finds National Security Letters unconstitutional, and bans them.

By Kim Zetter on 15 March 2013 for Wired News -
(http://www.wired.com/threatlevel/2013/03/nsl-found-unconstitutional/?cid=co6425864)


Image above: Photo of US Federal Judge Susan Illston. From original article.

Ultra-secret national security letters that come with a gag order on the recipient are an unconstitutional impingement on free speech, a federal judge in California ruled in a decision released Friday.

U.S. District Judge Susan Illston ordered the government to stop issuing so-called NSLs across the board, in a stunning defeat for the Obama administration’s surveillance practices. She also ordered the government to cease enforcing the gag provision in any other cases. However, she stayed her order for 90 days to give the government a chance to appeal to the Ninth Circuit Court of Appeals.

“We are very pleased that the Court recognized the fatal constitutional shortcomings of the NSL statute,” said Matt Zimmerman, senior staff attorney for the Electronic Frontier Foundation, which filed a challenge to NSLs on behalf of an unknown telecom that received an NSL in 2011. “The government’s gags have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience.”

The telecommunications company received the ultra-secret demand letter in 2011 from the FBI seeking information about a customer or customers. The company took the extraordinary and rare step of challenging the underlying authority of the National Security Letter, as well as the legitimacy of the gag order that came with it.

Both challenges are allowed under a federal law that governs NSLs, a power greatly expanded under the Patriot Act that allows the government to get detailed information on Americans’ finances and communications without oversight from a judge. The FBI has issued hundreds of thousands of NSLs over the years and has been reprimanded for abusing them — though almost none of the requests have been challenged by the recipients.

After the telecom challenged the NSL, the Justice Department took its own extraordinary measure and sued the company, arguing in court documents that the company was violating the law by challenging its authority.

The move stunned EFF at the time.


Image above: Photo of EFF team challenging NSLs. From (http://boingboing.net/2013/03/16/eff-explains-yesterdays-nati.html).

“It’s a huge deal to say you are in violation of federal law having to do with a national security investigation,” Zimmerman told Wired last year. “That is extraordinarily aggressive from my standpoint. They’re saying you are violating the law by challenging our authority here.”

The case is a significant challenge to the government and its efforts to obtain documents in a manner that the EFF says violates the First Amendment rights of free speech and association.

In her ruling, Judge Illston agreed with EFF, saying that the NSL nondisclosure provisions “significantly infringe on speech regarding controversial government powers.”

She noted that the telecom had been “adamant about its desire to speak publicly about the fact that it received the NSL at issue to further inform the ongoing public debate” on the government’s use of the letters.

She also said that the review process for challenging an order violated the separation of powers. Because the gag order provisions cannot be separated from the rest of the statute, Illston ruled that the entire statute was unconstitutional.

Illston found that although the government made a strong argument for prohibiting the recipients of NSLs from disclosing to the target of an investigation or the public the specific information being sought by an NSL, the government did not provide compelling argument that the mere fact of disclosing that an NSL was received harmed national security interests.

A blanket prohibition on disclosure, she found, was overly broad and “creates too large a danger that speech is being unnecessarily restricted.” She noted that 97 percent of the more than 200,000 NSLs that have been issued by the government were issued with nondisclosure orders.

She also noted that since the gag order on NSL’s is indefinite — unless a recipient files a petition with the court asking it to modify or set aside the nondisclosure order — it amount to a “permanent ban on speech absent the rare recipient who has the resources and motivation to hire counsel and affirmatively seek review by a district court.”

It’s only the second time that such a serious and fundamental challenge to NSLs has arisen. The first occurred around an NSL that was sent in 2005 to Library Connection, a consolidated back office system for several libraries in Connecticut. The gag order was challenged and found to be unconstitutional because it was a blanket order and was automatic. As a result of that case, the government revised the statute to allow recipients to challenge the gag order. Illston found that unconstitutional as well in her ruling this week because of restrictions around how they could challenge the NSL.

In 2004, another case also challenged a separate aspect of the NSL. This one involved a small ISP owner named Nicholas Merrill, who challenged an NSL seeking info on an organization that was using his network. He asserted that customer records were constitutionally protected information.

But that issue never got a chance to play out in court before the government dropped its demand for documents.

With this new case, civil libertarians are getting a second opportunity to fight NSLs head-on in court.

NSLs are written demands from the FBI that compel internet service providers, credit companies, financial institutions and others to hand over confidential records about their customers, such as subscriber information, phone numbers and e-mail addresses, websites visited and more.

NSLs are a powerful tool because they do not require court approval, and they come with a built-in gag order, preventing recipients from disclosing to anyone that they have even received an NSL. An FBI agent looking into a possible anti-terrorism case can self-issue an NSL to a credit bureau, ISP or phone company with only the sign-off of the Special Agent in Charge of their office. The FBI has to merely assert that the information is “relevant” to an investigation into international terrorism or clandestine intelligence activities.

The lack of court oversight raises the possibility for extensive abuse of NSLs under the cover of secrecy, which the gag order only exacerbates. In 2007 a Justice Department Inspector General audit found that the FBI had indeed abused its authority and misused NSLs on many occasions. After 9/11, for example, the FBI paid multimillion-dollar contracts to AT&T and Verizon requiring the companies to station employees inside the FBI and to give these employees access to the telecom databases so they could immediately service FBI requests for telephone records. The IG found that the employees let FBI agents illegally look at customer records without paperwork and even wrote NSLs for the FBI.

Before Merrill filed his challenge to NSLs in 2004, ISPs and other companies that wanted to challenge NSLs had to file suit in secret in court – a burden that many were unwilling or unable to assume. But after he challenged the one he received, a court found that the never-ending, hard-to-challenge gag orders were unconstitutional, leading Congress to amend the law to allow recipients to challenge NSLs more easily as well as gag orders.

Now companies can simply notify the FBI in writing that they oppose the gag order, leaving the burden on the FBI to prove in court that disclosure of an NSL would harm a national security case. The case also led to changes in Justice Department procedures. Since Feb. 2009, NSLs must include express notification to recipients that they have a right to challenge the built-in gag order that prevents them from disclosing to anyone that the government is seeking customer records.

Few recipients, however, have ever used this right to challenge the letters or gag orders.

The FBI has sent out nearly 300,000 NSLs since 2000, about 50,000 of which have been sent out since the new policy for challenging NSL gag orders went into effect. Last year alone, the FBI sent out 16,511 NSLs requesting information pertaining to 7,201 U.S. persons, a technical term that includes citizens and legal aliens.

But in a 2010 letter (.pdf) from Attorney General Eric Holder to Senator Patrick Leahy (D-Vermont), Holder said that there had “been only four challenges,” and those involved challenges to the gag order, not to the fundamental legality of NSLs. At least one other challenge was filed earlier this year in a secret case revealed by Wired. But the party in that case challenged only the gag order, not the underlying authority of the NSL.

When recipients have challenged NSLs, the proceedings have occurred mostly in secret, with court documents either sealed or redacted heavily to cover the name of the recipient and other identifying details about the case.

The latest case is remarkable then for a number of reasons, among them the fact that a telecom challenged the NSL in the first place, and that EFF got the government to agree to release some of the documents to the public, though the telecom was not identified in them. The Wall Street Journal, however, used details left in the court records, and narrowed the likely plaintiffs down to one, a small San-Francisco-based telecom named Credo. The company’s CEO, Michael Kieschnick, didn’t confirm or deny that his company is the unidentified recipient of the NSL, but did release a statement following Illston’s ruling.

“This ruling is the most significant court victory for our constitutional rights since the dark day when George W. Bush signed the Patriot Act,” Kieschnick said. “This decision is notable for its clarity and depth. From this day forward, the U.S. government’s unconstitutional practice of using National Security Letters to obtain private information without court oversight and its denial of the First Amendment rights of National Security Letter recipients have finally been stopped by our courts.”

The case began sometime in 2011, when Credo or another telecom received the NSL from the FBI.

EFF filed a challenge on behalf of the telecom (.pdf) in May that year on First Amendment grounds, asserting first that the gag order amounted to unconstitutional prior restraint and, second, that the NSL statute itself “violates the anonymous speech and associational rights of Americans” by forcing companies to hand over data about their customers.

Instead of responding directly to that challenge and filing a motion to compel compliance in the way the Justice Department has responded to past challenges, government attorneys instead filed a lawsuit against the telecom, arguing that by refusing to comply with the NSL and hand over the information it was requesting, the telecom was violating the law, since it was “interfer[ing] with the United States’ vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security.”

They did this, even though courts have allowed recipients who challenge an NSL to withhold government-requested data until the court compels them to hand it over. The Justice Department argued in its lawsuit that recipients cannot use their legal right to challenge an individual NSL to contest the fundamental NSL law itself.

After heated negotiations with EFF, the Justice Department agreed to stay the civil suit and let the telecom’s challenge play out in court. The Justice Department subsequently filed a motion to compel in the challenge case, but has never dropped the civil suit.

The redacted documents don’t indicate the exact information the government was seeking from the telecom, and EFF won’t disclose the details. But by way of general explanation, Zimmerman said that the NSL statute allows the government to compel an ISP or web site to hand over information about someone who posted anonymously to a message board or to compel a phone company to hand over “calling circle” information, that is, information about who has communicated with someone by phone.

An FBI agent could give a telecom a name or a phone number, for example, and ask for the numbers and identities of anyone who has communicated with that person. “They’re asking for association information – who do you hang out with, who do you communicate with, [in order] to get information about previously unknown people.

“That’s the fatal flaw with this [law],” Zimmerman told Wired last year. “Once the FBI is able to do this snooping, to find out who Americans are communicating with and associating with, there’s no remedy that makes them whole after the fact. So there needs to be some process in place so the court has the ability ahead of time to step in [on behalf of Americans].”
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Still punishing Tim DeChristopher

SUBHEAD: Still hounded after a prison sentence for trying to save public land from Bush crony oil drillers.

By Mat McDermott on 4 December 2012 for TreeHugger -
(www.treehugger.com/environmental-policy/tim-dechristopher-barred-from-social-justice-work-in-halfway-house.html)


Image above: Photo of Tim DeChristopher/ From original story.

In today's you've got to be effing kidding me category: Climate activist Tim DeChristopher is out of prison, serving the remainder of his two-year sentence at a halfway house in Salt Lake City, Utah. Good news, to a point.

Tim had planned on working at a local Unitarian church—he'd expressed sentiments of moving towards ministry work while in jail. Except that the Federal Bureau of Prisons stepped in and put its jackbooted foot down.

From KSL (ht Mother Jones):

DeChristopher had been offered a job with the church's social justice ministry, which would include working with cases of race discrimination, sex discrimination or other injustices that fall contrary to Unitarian beliefs. 

"The Bureau of Prisons official who interviewed Tim indicated he would not be allowed to work at the Unitarian church because it involved social justice and that was what part of what his crime was," Shea said.

Ken Sanders, proprietor of a downtown rare books store, instead offered DeChristopher a job as a clerk. That employment has been deemed "safe," Shea confirmed.

I wonder if the Bureau of Prisons will make surprise visits at the bookstore to make sure DeChristopher isn't reading any subversive literature, or encouraging people to head towards the social and environmental justice section?

At least Prisons recognizes that Tim was indeed trying to redress serious issues of social justice when he entered the Federal oil and gas lease auction a couple years back. I won't recount the saga, but instead refer you to the links at left for the backstory.

The big question, that very well may have already uncontrollably popped out of your month, is this actually legal?

It very well may be, but it's surely not ethical nor just.

Which brings this full circle to how Tim got into this predicament: Protesting legal but essentially unethical and unjust activities—remember, the very auction DeChristopher participated in was later declared invalid—and then being punished for it.

NOTE: An earlier headline for this article stated that DeChristopher was barred from social justice work while on parole. That was incorrect, as Tim has not yet technically been paroled, even though he is no longer in prison. He still has several more months on his sentence, being serving in the mentioned halfway house.

See also:
Ea O Ka Aina: Prison for Tim DeChristopher 7/27/11
Ea O Ka Aina: Climate Change Civil Disobedience 4/27/11 
Ea O Ka Aina: Environmentalist going to prison 3/4/11
Ea O Ka Aina: One Man's Bid 12/27/08 .


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Court allows patent on human genes

SUBHEAD: The court found the isolated DNA molecules are obtained in the labo and are therefore man-made and patentable. By Amanda Wilson on 18 August 2012 for Counter Currents - (http://www.countercurrents.org/wilson180812.htm) Image above: Structure of the BRCA1 protein. From original article. (Credit: emw/creative commons)

Is a gene more like a tree trunk or more like a baseball bat? A federal court Thursday took a stand on the question, ruling that isolated DNA molecules are “not found in nature”, and are therefore more like inventions, such as baseball bats, than natural phenomenon, such as tree trunks.

Using language steeped in metaphor in a packed U.S. federal courtroom, attorneys in July debated the question in a closely-watched case on the right to patent genes that has been working its way through the courts.

At stake: the right of one company – Myriad Genetics – to patent a gene as a human invention under U.S. patent law, which allows patents on inventions but not on products of nature.

In a ruling that largely upheld the status quo in a biotech industry that has been patenting genes for decades, the U.S. Court of Appeals for the Federal Circuit ruled Thursday that “isolated” human genes are patentable. Methods of “comparing” or “analysing” DNA sequences are, however, not patent eligible, it ruled.

In a two-to-one decision, the court affirmed Myriad’s right to claim intellectual property rights on the BRCA-1 BRCA-2 genes, genes where mutations indicate a woman has an 82 percent increased risk of developing breast cancer.

The company’s patents on the genes are the basis of a breast cancer indicator test that has been a profitable asset in the company’s portfolio of intellectual property.

The American Civil Liberties Union (ACLU), representing a group of about 20 plaintiffs, including the breast cancer patient advocates and geneticists, several years ago launched a legal challenge to Myriad’s right to patent the genes.

The plaintiffs, including patient advocacy group Breast Cancer Action, have argued that Myriad’s IP rights to the genes allow it to block others from testing for – or even looking at – the BRCA-1 and BRCA-2 genes, a right they say Myriad has exercised in the past with legal threats.

Plaintiffs have also argued the patents raise prices for testing and essentially create a market monopoly which blocks the poorest from getting tested and stifles scientists who want to look at the genes. Yale geneticist Ellen Matloff, a plaintiff in the case, told IPS last year the situation was “horrifying.”

Matloff told IPS that 95 percent of patients she recommended for Myriad’s 700-dollar supplementary BART test, which looks for mutations on the BRCA-1 and BRCA-2 genes, opted not to get it because of its high cost.

Furthermore, those who question gene patents have pointed out that patenting individual genes might even be myopic, especially in a world of whole genome sequencing where the scientific community is increasingly interested in gene interactions, the influence of the environment on genetics (called epigenetics), and other big-picture indicators to understand patient health.

The case has been working its way through the courts. A New York district court judge sided with the ACLU in 2010, but the Federal Circuit Court of Appeals overturned the ruling in July 2011.

The ACLU appealed to the Supreme Court last year, but the Court declined to issue a ruling in the case. Instead, it sent the case back to the Federal Circuit to re-examine in light of its unanimous spring decision that Prometheus Laboratories Inc. did not have a right to patent a certain blood test because the patent was based on observations about natural phenomena.

But Thursday, the Federal Circuit again ruled that genes are patentable. The court wrote, “The isolated DNA molecules before us are not found in nature. They are obtained in the laboratory and are man-made, the product of human ingenuity.”

In its majority opinion the court also highlighted that gene patenting had been standard practice for the U.S. Patent and Trademark Office (PTO) for years.

“Why hasn’t this come up in 30 years,” Circuit Judge Kimberly Moore, who sided with the majority, asked during oral arguments in the courtroom July.

Moore hinted at the biotech sector’s financial stake in gene patents, often key components of diagnostic test IP at the centre of a much-hyped personalised medicine industry. “What about the biotech sector and all the money?” Moore asked.

In his dissenting opinion, Circuit Judge William Bryson wrote, “my colleagues assign significant weight to the fact that since 2001 the PTO has had guidelines in place that have allowed patents on entire human genes… I think the PTO’s practice and guidelines are not entitled to significant weight…”

Sandra Park, an attorney with the ACLU, told IPS her team was disappointed in the Federal Circuit court’s decision, which she said she believed did not take the Supreme Court’s ruling in Prometheus adequately into consideration.

“We think that the Supreme Court’s recent decision is very clear that the Court is very concerned about how patents interfere with scientific work,” Park told IPS. “The Supreme Court has said that the interests of industry in relying on patent protection is not a factor in determining that something is patentable.”

Park said the mere fact that Prometheus argued that it needed its patents to advance its interests, in the Supreme Court’s ruling, was insufficient reason to justify patents.

If the ACLU decides, with the other plaintiffs, to appeal the Federal Circuit court’s decision, it is possible the Supreme Court might decide to hear the case. Such a scenario is not unheard of. In fact, Park said, the Supreme Court decision to overturn Prometheus’s right to its diagnostic patent came after the Federal Circuit twice upheld it.

Park said the ACLU was still deciding its next step. “We are reviewing our options, but we haven’t made any decisions yet.”

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