The ACLU helped the government harass Tor's Jacob Appelbaum

By Mark Ames , written on June 22, 2015

From The Legal Affairs Desk

"Ever get the feeling you've been cheated?"

—John Lydon

While most of us have been absorbed with the horrific race massacre in Charleston, Tor developer Jacob Appelbaum—and his fanbase of libertarian/cyber-privacy activists— have spent the past few days absorbed in a 306-page cache of newly-unsealed court documents. These documents reveal the DOJ's attempts to get hold of Appelbaum's Gmail records, and Google's efforts to undo a legal gag so that it could notify Appelbaum what was happening.

This is one of those stories that should be a simple case of evil intrusive government-vs.-good civil libertarian activist. And it is partly that. But the more you know about the main actors in this story, the more muddled and depressing it becomes.

As Pando readers already know, Appelbaum plays a dual role as both anti-state privacy activist, and Pentagon-funded military contractor. That's not really news.

What is news -- and richly ironic, to boot -- is that the laws used by the DOJ to pry open Appelbaum's Gmail account, and to gag Google’s lawyers, were co-authored by Applebaum's old friends at the ACLU, and sponsored in the Senate by civil libertarian hero Patrick Leahy.

More on that in a moment—but first, let's look at the court orders and DOJ legal battles with Google revealed in the new documents.

Here's what we know: In 2010, the Justice Department opened up a criminal case into Wikileaks after the site first started publishing its massive cache of leaked US diplomatic cables. That same year, Appelbaum, a lead developer for the US Department of Defense-funded Tor Project, joined Wikileaks as a “volunteer hacker,” and found himself under almost immediate US government harassment. In August 2010, undercover FBI agents allegedly questioned Appelbaum at the Las Vegas DefCon conference, where Appelbaum gave a talk on Tor—a privacy tool funded almost entirely by the US Department of Defense, State Department, and CIA cutouts via the Broadcasting Board of Governors. (Tor has also received smaller private donations from Pierre Omidyar and Google.)

In January 2011, Twitter notified Appelbaum and a few other Wikileaks supporters, including Icelandic Parliament MP Birgitta Jónsdóttir, that the Justice Department ordered Twitter to turn over information on their accounts going back to 2009. The DOJ had tried to enforce a gag on Twitter from notifying its users, citing a section of the 1986 Electronic Communications Privacy Act (ECPA) allowing the government to obtain electronic metadata records without a warrant, and allowing government investigators to gag the companies it requests data from.

Twitter’s lawyers acted quickly and deftly enough to convince the judge in early 2011 to allow them to notify Appelbaum and the other users. But the public shistorm that followed — fanned by Wikileaks’ supporters and others who, reasonably enough, found the government’s Internet intrusions frightening — wound up giving the DOJ ammunition to legally gag Google from notifying Appelbaum and others when his Gmail records were subpoenaed under the same ECPA law.

And it's this part of the story—how the ECPA law came into being, allowing the government so much unfettered access to our online communications — that just about everyone in the civil libertarian /online privacy world has kept mum on, to the point of gross negligence. Listening to all of these outraged activists, you'd think that the “2703” court order used to get ahold of records like Jacob Appelbaum’s Gmail and Twitter accounts simply appeared in a puff of evil government potion smoke, because that’s what evil governments do.

But the depressing truth is that this law was the product of close collaboration between the ACLU, industry lobbyists, and the Reagan Administration back in the mid-1980s.

The ECPA, was negotiated back in 1986 by one of the biggest names in online privacy: the ACLU’s Jerry Berman. At the time, Berman was the ACLU’s chief legislative counsel in Washington, and founder of the ACLU’s “Project on Privacy and Technology.” As the law was moving through Congress with the backing of the DOJ, the New York Times observed:

For the American Civil Liberties Union, a major force behind the bill, the commitment is philosophical rather than economic. “This is a very good bill,” said Jerry Berman, the head of the union’s Privacy Technology Project, who worked to bring the business groups together. “It demonstrates that you can put together a privacy coalition and make it work.”

Another New York Times article cited the ACLU's "'central role' in assembling the coalition that won approval for the Electronic Communications Privacy Act of 1986."

The "2703" court order used to compel Google to hand over Appelbaum's metadata is a section from Title II of the Electronic Communications Privacy Act law.

In the early 1990s, after helping steer through ECPA, Jerry Berman left the ACLU to head up the Electronic Frontier Foundation. Together, Berman and the EFF collaborated with the FBI to push through the awful 1994 Communications Assistance to Law Enforcement Act (CALEA, or “Digital Telephony Act”), nicknamed the “let’s-just-wiretap-everyone” bill by Wired magazine. Then Berman founded another online privacy nonprofit, the Center for Democracy & Technology, which joined together with the EFF and the ACLU to lobby for the USA Freedom Act—a law that many privacy activists have since denounced as a stealth legalization of what had been illegal government surveillance programs.

Earlier this year, I wrote about the ECPA law for Pando because it also sanctioned another horrible government intrusion: the “180 day rule” which allows the government unfettered access to all emails and electronic activities over 180 days old. Basically the ACLU, along with Sen. Leahy, helped legalize the suspension of Americans’ Fourth Amendment rights for all online activities and communications older than six months. And also made it easier for the government to obtain records and gag the internet companies from notifying their users.

Unfortunately, you won’t find any of this history from the same crowd of journalists and activists making the most noise about invasive court orders for Jacob Appelbaum’s and other activists’ online activities. The Intercept’s story on the court orders for Appelbaum’s Gmail account states simply,

 Rather than seeking a search warrant that would require it to show probable cause that he had committed a crime, the government instead sought and received an order to obtain the data under a lesser standard, requiring only “reasonable grounds” to believe that the records were “relevant and material” to an ongoing criminal investigation.

The article links to the law, 18 U.S. Code § 2703, without giving any of the political context or history that brought the law into our lives.

I’ve seen this done time and again by civil libertarian activists—linking to the law, without giving any political context or understanding of why or where that law came from.

It’s important to know that the nation’s leading civil libertarian group, the ACLU, helped negotiate the language of that law, and lobbied it through Congress. Without that important bit of information, we may be left with the impression that the only thing standing between us and the evil government jackboots is the ACLU, EFF and like groups. What we learn instead is that it’s a lot more complicated, sleazy, and depressing than that.

These same groups, ACLU and EFF, have also led the legal attacks and online outrage over the government intrusions into Wikileaks supporters’ online activities. From the outside, from our vantage point, it looks like a classic Washington DC racket: the same groups that work behind closed doors to enact outrageous laws intruding on our privacy later turn around and raise money and support off the outrage those laws engender, even helping fanning the outrage through well-coordinated PR campaigns—all the while leaving out their own central roles in creating the outrageous laws affecting us.

Meanwhile, the poster victim of these ECPA and CALEA laws, Jacob Appelbaum, has a whole bag of skeleton bones in his spooky closet—first, by spending years living off the largesse of the very same national security state he claims to be fighting . . . and more recently, when Appelbaum called on hackers to post on Wikileaks the personal stolen files on upwards of 14 million federal workers (for which he was called out on Twitter by investigative reporter Tim Shorrock, a leading expert on US military-intelligence contractors).

Literally days after Appelbaum encouraged others to violate millions of workers’ privacy, he was complaining about a legal order — enacted with the help of the ACLU — that targeted his own private metadata. Privacy for me, not for thee, parasites!

It would be easy to dismiss all of this as merely vile and childish, if the consequences weren’t so real, and so dire, for all of us. What's described here is far worse than hypocrisy and double-standards—it’s a giant civil liberties shitshow, nurtured as it is in our de-politicized culture, where social media-charged emotional reactions are mistaken for politics — while the real politics that frame our lives is left to the very same corrupted and compromised institutions that have proven time and again they have our backs no better than the government does.