Yes, but in Gravel the Pentagon Papers were read into the public record at a subcommittee meeting. Later, the same Senator privately published the materials. The court found that the former was protected, not the latter:
The grand jury, therefore, if relevant to its investigation into the possible violations of the criminal law, . . . may require from [the Senator's aide] answers to questions relating to his or the Senator's arrangements, if any, with respect to republication or with respect to third-party conduct under valid investigation by the grand jury, as long as the questions do not implicate legislative action of the Senator.
408 U.S. at 628.
Thus, the Supremes held that information about private publication of the papers was not protected, but any "legislative actions," such as reading the text into the subcommittee's record, are fully protected.
If Kucinch had read the Diebold memos into the record, he would be absolutely protected. But, posting it on a website is not protected, public interest or not.
Actually, the speech and debate clause would not protect Kucinch here. Look at the limiting clauses:
. . . be privileged from arrest during their attendance at the session . . . and in going to and returning from the same; and for any speech or debate in either House . . ..
For example, in Hutchinson v. Proximire, 443 U.S. 111 (1979), a congressman issued a press release awarding the "Golden Fleece" Award, given to projects exemplifying government waste. One of the recipients did not take kindly to receiving the award and sued the Senator for defamation. The Supremes held that the speech and debate clause offered no protection. The Senator would have been protected if he had read the award at a committee meeting or on the floor of the Senate, but the press release was not privileged.
So, why isn't Kucinch being sued? My guess - the last thing Diebold needs is more bad publicity.
This article originally appeared in the New York Times. The article refers to a memorandum authored by the FBI. Does anyone have copies of it to post? Here are my favorite quotes:
The memorandum . . . warned about an array of threats, including homemade bombs and the formation of human chains.
Hmmm... leave it to the FBI to see a "human chain" as a threat. Here's another one:
The memorandum discussed demonstrators' "innovative strategies," like the videotaping of arrests as a means of "intimidation" against the police. And it noted that protesters "often use the Internet to recruit, raise funds and coordinate their activities prior to demonstrations."
So let's see here: we can't videotape the cops because they feel "intimidated," but of course the same doesn't apply to police, who routinely videotape activists. In fact, videotaping and photographing the police is essential to stopping police repression of peaceful protests.
And using the internet to "raise funds" and "coordinate activities" is suspicious?
The original order did contain a typo, 216.213.32.98, instead of 216.231 etc. This actually makes the whole order unenforceable. But, unfortunately, they discovered their mistake and will be filing a motion to amend next week with the correct IP address.
In the case of Doe v. 2themart.com Inc., US District Judge Zilly from the Western District of Washington (right here in Seattle), just issued an opinion protecting the right of anonymous posting on the internet. Zilly writes:
The right to speak anonymously extends to speech via the Internet. Internet anonymity facilitates the rich, diverse, and far ranging exchange of ideas. The ability to speak one's mind on the Internet without the burden of the other party knowing all the facts about one's identity can foster open communication and robust debate. People who have committed no wrongdoing should be free to participate in online forums without fear that their identity will be exposed under the authority of the court.
If this were to be applied in the case of the IMC, the FBI court order captures, oh, about 1.25 million too many IP addresses. It seeks "user connection logs" for a 48 hour period, despite the fact that all they (supposedly) want is the IP addresses for two folks who posted some classifed documents (located here and here).
The IMC will be challenging the order even with regards to these two addresses. The posts themselves were not illegal under Candadian law. Furthermore, the US attorney has admitted that there are NO violations of US law, by either the people who posted the information, or by the IMC.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
N0. GS 01-184
ORDER VACATING ORDER OF NONDISCLOSURE
In the matter of the application of the United States of America for an order authorizing the disclosure of records and other information pertaining to electronic communication service provided by Indymedia
This court having considered the motion by Independent Media Center to vacate that portion of its order in this case entered on April 21, 2001, which forbids independent Media Center, and its agents and employees, to disclose to any person the existence of the order, or of the application for that order, or of the existence of the investigation which prompted that application.
It is hereby ordered that the portion of the order in this case entered on April 21, 2001, which forbids Independent Media Center, and its agents and employees, to disclose to any person the existence of the order, or of the application for that order, or of the existence of the investigation which prompted that application, is vacated.
Dated this 26 day of April, 2001.
Monica Benton
UNITED STATES MAGISTRATE JUDGE
Unfortunately, it's not quite that simple. Yes, the Privacy Protection Act applies and we plan to rely on it. However, there are cross-border bilateral treaties which gives US law enforcement the authority to investigate a certain subset of Canadian crimes.
The alleged crimes here are theft and mischief. Mischief is not one of the listed crimes, so there is no jurisdiction for it. However, it is unclear whether theft is or is not. We are currently looking into the scope of the treaty. We have also asked the US attorney to clarify the basis of his jurisdiction. Not surprisingly, he has not responded.
We did have a press conference on Friday, you can listen to the statement, plus some good q&a with our attorney, Dave Burman. The whole thing is right here.
I am one of a team of people coordinating the legal response to this. The Seattle IMC has not turned over any logs and plans to fight in court for our right not to turn over even 1 log entry.
And while we haven't found any posts with the President's travel info, we did find two posts with classified info, see here and here. These were the posts the agents were referring to. Their reference to the president's travel information was just plain wrong -- we have looked carefully on all IMC sites and have failed to find any such post. The agents were either lying (likely) or very stupid (also a possibility).
Folks, if this is restraint, I'd hate to see them when they're pissed off.
I was downtown from 6am until 7pm providing medical support for the activists. It's vitally important to sift through what's being placed out on the corporate media because much of it is at least partially untrue, and some of it is blantantly false. PLEASE GO TO http://www.indymedia.org/ a media collective that has formed in the months preceeding the WTO conference, for the real scoop on what's happening in Seattle. Up to date web casting, video and audio from the front, and other goodies.
On the issue of police "restraint:" There were multiple situations that I was a witness to where the police were far from restrained. A few examples: - while clearing 3rd Avenue approx 5pm: there were approximately 15 protesters sitting down (being non-violent) confronted by at least 20 riot cops. The protesters were asking the police what they were planning on doing. The cops remained silent in a standoff for 10-15 minutes. SUddenly, and without warning, a cop threw a concussion grenade at one of the protesters and followed it with pepper spray directed at all persons in the area, including media (with press passes), bystanders, and the (non-violent) protesters. None of these individuals were any threat whatsoever to any of the officers. At the very least, they are required to give a warning.
- in another situation, i was attempting to treat a (non-violent - noticing a trend here?) protesters who had been sprayed directly in the face at close range by an officer. I approached the line of cops and stated that I was a medic and that I wanted to treat the individual who was sitting directly in front of the officer. I sat next to him and began to flush his eyes out with saline solution when the cop TOOK THE SALINE SOLUTION OUT OF MY HAND AND THREW IT ON THE GROUND. He obviously didn't make it through "Restraint 101" at police academy.
These experiences are common to nearly everyone who was on the front lines of the demos today. The cops provoked this, intentionally. Please watch the news as it breaks, http://www.indymedia.org.
Slashdot Mirror
408 U.S. at 628.
Thus, the Supremes held that information about private publication of the papers was not protected, but any "legislative actions," such as reading the text into the subcommittee's record, are fully protected.
If Kucinch had read the Diebold memos into the record, he would be absolutely protected. But, posting it on a website is not protected, public interest or not.
For example, in Hutchinson v. Proximire, 443 U.S. 111 (1979), a congressman issued a press release awarding the "Golden Fleece" Award, given to projects exemplifying government waste. One of the recipients did not take kindly to receiving the award and sued the Senator for defamation. The Supremes held that the speech and debate clause offered no protection. The Senator would have been protected if he had read the award at a committee meeting or on the floor of the Senate, but the press release was not privileged.
So, why isn't Kucinch being sued? My guess - the last thing Diebold needs is more bad publicity.
Hmmm... leave it to the FBI to see a "human chain" as a threat. Here's another one:
So let's see here: we can't videotape the cops because they feel "intimidated," but of course the same doesn't apply to police, who routinely videotape activists. In fact, videotaping and photographing the police is essential to stopping police repression of peaceful protests.
And using the internet to "raise funds" and "coordinate activities" is suspicious?
I guess I should just turn myself in.
The original order did contain a typo, 216.213.32.98, instead of 216.231 etc. This actually makes the whole order unenforceable. But, unfortunately, they discovered their mistake and will be filing a motion to amend next week with the correct IP address.
If this were to be applied in the case of the IMC, the FBI court order captures, oh, about 1.25 million too many IP addresses. It seeks "user connection logs" for a 48 hour period, despite the fact that all they (supposedly) want is the IP addresses for two folks who posted some classifed documents (located here and here).
The IMC will be challenging the order even with regards to these two addresses. The posts themselves were not illegal under Candadian law. Furthermore, the US attorney has admitted that there are NO violations of US law, by either the people who posted the information, or by the IMC.
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
N0. GS 01-184
ORDER VACATING ORDER OF NONDISCLOSURE
This court having considered the motion by Independent Media Center to vacate that portion of its order in this case entered on April 21, 2001, which forbids independent Media Center, and its agents and employees, to disclose to any person the existence of the order, or of the application for that order, or of the existence of the investigation which prompted that application.
It is hereby ordered that the portion of the order in this case entered on April 21, 2001, which forbids Independent Media Center, and its agents and employees, to disclose to any person the existence of the order, or of the application for that order, or of the existence of the investigation which prompted that application, is vacated.
Dated this 26 day of April, 2001.
Monica Benton
UNITED STATES MAGISTRATE JUDGE
The alleged crimes here are theft and mischief. Mischief is not one of the listed crimes, so there is no jurisdiction for it. However, it is unclear whether theft is or is not. We are currently looking into the scope of the treaty. We have also asked the US attorney to clarify the basis of his jurisdiction. Not surprisingly, he has not responded.
We did have a press conference on Friday, you can listen to the statement, plus some good q&a with our attorney, Dave Burman. The whole thing is right here.
I am one of a team of people coordinating the legal response to this. The Seattle IMC has not turned over any logs and plans to fight in court for our right not to turn over even 1 log entry. And while we haven't found any posts with the President's travel info, we did find two posts with classified info, see here and here. These were the posts the agents were referring to. Their reference to the president's travel information was just plain wrong -- we have looked carefully on all IMC sites and have failed to find any such post. The agents were either lying (likely) or very stupid (also a possibility).
Folks, if this is restraint, I'd hate to see them when they're pissed off.
I was downtown from 6am until 7pm providing medical support for the activists. It's vitally important to sift through what's being placed out on the corporate media because much of it is at least partially untrue, and some of it is blantantly false. PLEASE GO TO http://www.indymedia.org/ a media collective that has formed in the months preceeding the WTO conference, for the real scoop on what's happening in Seattle. Up to date web casting, video and audio from the front, and other goodies.
On the issue of police "restraint:" There were multiple situations that I was a witness to where the police were far from restrained. A few examples:
- while clearing 3rd Avenue approx 5pm: there were approximately 15 protesters sitting down (being non-violent) confronted by at least 20 riot cops. The protesters were asking the police what they were planning on doing. The cops remained silent in a standoff for 10-15 minutes. SUddenly, and without warning, a cop threw a concussion grenade at one of the protesters and followed it with pepper spray directed at all persons in the area, including media (with press passes), bystanders, and the (non-violent) protesters. None of these individuals were any threat whatsoever to any of the officers. At the very least, they are required to give a warning.
- in another situation, i was attempting to treat a (non-violent - noticing a trend here?) protesters who had been sprayed directly in the face at close range by an officer. I approached the line of cops and stated that I was a medic and that I wanted to treat the individual who was sitting directly in front of the officer. I sat next to him and began to flush his eyes out with saline solution when the cop TOOK THE SALINE SOLUTION OUT OF MY HAND AND THREW IT ON THE GROUND. He obviously didn't make it through "Restraint 101" at police academy.
These experiences are common to nearly everyone who was on the front lines of the demos today. The cops provoked this, intentionally. Please watch the news as it breaks, http://www.indymedia.org.