“Feds Targeted Snowden’s Email Provider the Day After NSA Whistleblower Went Public”

October 3, 2013

Wired on September 27, 2013 released the following:


“When on June 9 Edward Snowden stood up in Hong Kong and revealed himself to the world as an NSA whistleblower, the Justice Department wasted little time in targeting his email provider. A new appeals court filing today shows the government served a court order on Texas-based Lavabit the very next day, demanding metadata on an unnamed customer that the timing and circumstances suggest was Snowden.

The June 10 records demand was issued under 18 USC 2703(d), a 1994 amendment to the Stored Communications Act that allows law enforcement access to non-content internet records without demonstrating the “probable cause” needed for a search warrant. That would include email “To” and “From” lines, and the IP addresses used to access the account, but would not include the content of the email.

That order was followed on June 28 with a so-called “pen register order”, which provides the same information prospectively — recording the metadata for every new email sent or received.

It’s not clear what information, if any, Lavabit produced at that stage of the investigation. But on July 9 the court evidently issued an “Order to Show Cause,” which in a records case is usually the result of the government asking the court to enforce a demand that hasn’t been complied with to the government’s satisfaction.

The new information is revealed in a government filing in Lavabit’s appeal in the case. Lavabit attorney Jesse Binnall on Tuesday asked the 4th U.S. Circuit Court of Appeals to unseal some information in the case so that public interest groups could learn enough to potentially file amicus briefs on the core legal issues. The government today filed its opposition to the unsealing motion — under seal, naturally — along with a public timeline of previous orders keeping the case secret.

“The entire record in the district court, including all applications, subpoenas, motions, warrants, and orders, remains under seal,” prosecutors wrote in the public filing.

The timeline shows that the government’s records demands to Lavabit in the case began on June 10, almost two months before owner Ladar Levison shut down the service on August 8 with an oblique message saying he’d been left with little choice in the matter.

“I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly 10 years of hard work by shutting down Lavabit,” Levison wrote at the time. “After significant soul searching, I have decided to suspend operations.”

Levison and his lawyer are both bound by a gag order preventing them from discussing the details of the case, or identifying who the government’s target is.

The June 29 pen register order may well have been the issue. A standard email provider can easily funnel email headers to the government in response to such a request. But Lavabit offered paying customers a secure email service that stores incoming messages encrypted to a key known only to that user. Lavabit itself did not have access.

Levison could have complied with a prospective metadata demand in a number of ways: by providing the government with Lavabit’s private SSL certificate — allowing its users to be wiretapped; by modifying the software to store a user’s private encryption key at the next login; or by recording the email metadata before it’s encrypted. But Levison may have balked at actively circumventing the privacy system he built for users.

After shutting down the site, Levison appealed on August 29. His opening brief in his appeal is due October 3.

“He’s optimistic that we use this opportunity to possibly get some good law,” attorney Binnall told WIRED earlier this month. “My client is somebody’s who’s very concerned about privacy rights and protecting the United States Constitution from unlawful searches and seizures and protecting the First Amendment.””


Douglas McNabb – McNabb Associates, P.C.’s
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Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

Judge Declares Law Governing Warrantless Cellphone Tracking Unconstitutional

November 17, 2011

The Wall Street Journal on November 16, 2011 released the following:

“By Julia Angwin

In a succinct one-page ruling, U.S. District Court Judge Lynn N. Hughes of the Southern District of Texas declared that the law authorizing the government to obtain cellphone records without a search warrant was unconstitutional.

“The records would show the date, time, called number, and location of the telephone when the call was made,” Judge Hughes wrote in the decision, dated Nov. 11. “These data are constitutionally protected from this intrusion.”

Judge Hughes’ decision comes as the U.S. government is facing increasing judicial challenges to its practice of obtaining information about the location of individuals without a search warrant. Last week, the Supreme Court heard oral arguments in a case where the government placed a GPS tracking device under a vehicle and monitored the driver’s movements for a month without a search warrant.

During the argument, Chief Justice John Roberts said to Michael Dreeben, deputy solicitor general of the Justice Department: “If you win this case then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.” The Justice Department argues that people have no expectation of privacy on public roads.

Cellphone records are governed by the Electronic Communications Privacy Act, a 1986 law that permits law enforcement officers to obtain certain digital records – such as some e-mail and cellphone records – without a search warrant. A coalition of technology companies—including Google Inc., Microsoft Corp. and AT&T Corp.—is lobbying Congress to update the law to require search warrants in more digital investigations.

At the same time, judges in lower courts have been questioning the constitutionality of the law, which only requires officers to show “specific and articulable facts” the electronic records sought are “relevant and material” to an ongoing investigation. For physical searches of a person’s home, the government is required to show probable cause that a crime was committed and obtain a search warrant.

Since 2005, more than a dozen magistrate judges have written opinions denying applications for court orders to track cellphones without search warrants. The nation’s roughly 500 magistrate judges handle applications for search warrants and other types of electronic surveillance in federal courts.

Of course, some have upheld warrantless searches. Last week, U.S. District Court Judge Liam O’Grady ruled that the government could obtain data from the Twitter accounts of three WikiLeaks without a search warrant.

Last year, Magistrate Judge Stephen Smith of U.S. District Court in the Southern District of Texas issued an opinion denying the government access to 60 days worth of information about a cellphone subscriber’s location and phone calls, without a search warrant.

Magistrate Judge Smith wrote that although cellphone tracking wasn’t envisioned by the writers of the Constitution, it had become so precise and pervasive that “for a cellphone user born in 1984, however, it is now conceivable that every movement of his adult life can be imperceptibly captured, compiled, and retrieved from a digital dossier somewhere in a computer cloud. Now as then, the Fourth Amendment remains our polestar.”

The government appealed, saying that the Fourth Amendment, which protects against unreasonable searches and seizures, does not apply because “a customer has no privacy interest in business records held by a cell phone provider, as they are not the customer’s private papers.” The government also challenged Judge Smith’s description of the accuracy of location tracking as “inaccurate or misleading,” and submitted an affidavit from cellular provider MetroPCS Wireless Inc. stating that the average coverage radius of its cellular towers was about “one or two miles.”

The district court ruling was short, but declarative. It affirmed Magistrate Judge Smith’s decision on constitutional grounds. “When the government requests records from cellular services, data disclosing the location of the telephone at the time of particular calls may be acquired only by a warrant issued on probable cause,” Judge Hughes wrote. “The standard under the [existing law] is below that required by the Constitution.””


Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing


To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

HOA fraud cases may be merged

September 5, 2011

Las Vegas Review-Journal on September 4, 2011 released the following:

“By Jeff German

Federal prosecutors are moving to consolidate all of the cases under one judge in the massive investigation into fraud and corruption at homeowners associations.

Senior U.S. District Judge Lloyd George is considering handling as many as two dozen plea deals prosecutors intend to file over the next six weeks in what may be the most far-reaching criminal fraud case ever in Nevada.

All of the targets striking deals are expected to testify in a push by prosecutors to obtain indictments against higher-level players. Prosecutors have identified as many as 100 co-conspirators at various levels of the scheme, including lawyers, judges and former police officers.

“This case sounds huge,” said Douglas McNabb, a seasoned Washington, D.C., defense lawyer who has battled the Justice Department in court over the years. “We’re talking about some 24 people who have already flipped and are cooperating against many more defendants. It’s clear the government has started at the bottom and is working its way up.”

Records show that the Justice Department’s Fraud Section in Washington has brought in four trial attorneys to prosecute the criminal cases. A motion by prosecutors to consolidate the cases has been filed under seal in federal court.

The lead prosecutor is Charles La Bella, a Fraud Section deputy chief who oversees investigations on the West Coast. La Bella, based in San Diego, attracted national attention following the 1996 presidential race when then-Attorney General Janet Reno appointed him to head a task force to investigate possible Democratic fundraising abuses during the campaign.

Christopher Blakesley, a University of Nevada, Las Vegas law professor who specializes in criminal law, said the homeowners association investigation is as “massive and far-reaching” as any case he has seen here.

“The complexity sort of lends itself to wanting it before one judge,” he said.

A former federal prosecutor agreed, saying, “The large number of voluntary guilty pleas suggests a criminal case that is unprecedented in size and scope in Nevada. From the prosecutors’ perspective, the judge will understand the history of the case instead of having to explain it to a half-dozen different judges.”

Last week, longtime Republican strategist Steve Wark became the first target to plead guilty in the scheme. George accepted his guilty plea to one count of conspiring to commit mail and wire fraud, and set a Dec. 16 sentencing.

At the hearing, La Bella said Wark’s case was one of four prosecutors had filed under seal. Four more cases were expected to be filed in the coming days, with as many as 15 more by mid-October, he said.

George promised a quick decision on whether he would hear all of the cases. He hinted that he would take on the assignment, saying his senior status gives him more time to deal with the cases than his full-time colleagues who have busy court calendars.

Wark, 54, who is cooperating with prosecutors, admitted to participating in a sweeping conspiracy to stack homeowners association boards with members who then pushed for construction defect lawsuits against builders.

Legal work and multimillion-dollar repair contracts were funneled to lawyers and companies associated with the scheme at the expense of the home­owners, who were deprived of honest voting on their boards.

The board members friendly to the co-conspirators were “straw purchasers” in the various developments and elected by the co-conspirators through classic dirty campaigning that included conducting phony polling, hiring private investigators to dig up dirt on candidates and rigging the balloting, according to federal court documents unsealed last week.

“This process created the appearance of legitimacy, since bona fide home­owners believed the elected board members … were, as fiduciaries, acting in their best interest rather than to advance the financial interests of the co-conspirators,” the documents alleged.

“In fact, defendant Wark and others were paid by or on behalf of their co-conspirators … for their assistance in purchasing the properties, obtaining HOA membership status, rigging elections and manipulating their votes to further the goals of the conspiracy and to enrich the co-conspirators at the expense of the HOA and bona fide homeowners.”

One association dragged into the investigation, Vistana, alleges in civil court papers that it overpaid the company that did construction repairs and has suffered more than $3 million in damages.

The company, Silver Lining Construction, was one of the businesses the FBI raided in 2008, when it went public with the investigation.

Search warrants also were executed at law firms, homeowners association offices and other businesses across the valley. Since then, nearly a dozen associations have become embroiled in the investigation.

Anti-homeowners association activists were elated last week after hearing the news of Wark’s guilty plea.

“I was hoping I would live long enough to see this day,” said Jonathan Friedrich, a 65-year-old former general contractor who has been fighting to expose corruption at homeowners associations across the Las Vegas Valley since 2007. “I’m delighted that the light is finally shining on the cockroaches that have been bleeding homeowners.”

Added Bob Robey, 72, who also has been fighting homeowners associations the past several years: “It’s about time. I hope they continue their investigations, and I hope they uncover more.”

Rana Goodman, 70, another activist, said she hopes the long-running FBI investigation will start to bring “some justice” to the homeowners.

“It’s taken way too long, but we’re thrilled,” Goodman said. “We’d like to see the stranglehold that some of these attorneys have on a large group of associations broken. There’s finally light at the end of the tunnel — maybe.”

But defense lawyer Thomas Pitaro, who represents construction defects attorney Nancy Quon, one of the key targets in the homeowners investigation, thinks the criminal case has veered off course.

“If this is such a big investigation, I hope they investigate the developers who ravaged this community with their shoddy construction of residential homes,” Pitaro said. “They should be looking at the primary cause of the problem, and that is the substandard housing developments.”

Blakesley said he is not surprised that it has taken three years for the federal investigation to result in criminal charges.

He said it likely took investigators a lot of time to gather and sort out the evidence.

“It has so many sidebars,” Blakesley said. “It looks like there are all sorts of avenues to travel to establish the case.”

He said George, namesake of the federal courthouse, is perfectly suited to handle the consolidated cases.

“He’s almost like the father of the federal system here,” Blakesley said. “He’s respected. He’s appreciated. He’s smart. On top of that, his experience gives him a lot of credibility in whatever he decides.”

What makes this investigation even more intriguing is that, despite the magnitude and deep impact it is having on the community, the Las Vegas U.S. attorney’s office will play no role in it.

When U.S. attorney Dan Bogden returned to take the reins of the office in October 2009, he removed himself from making any administrative decisions in the case because of a potential conflict of interest. He owns a condominium at one of the developments under investigation, Park Avenue.

In October, the U.S. attorney’s office asked to be removed entirely from the case to avoid the appearance of a conflict, a Justice Department spokeswoman said last week.

The Fraud Section took over the case in November. Late last year, the Justice Department’s Public Integrity Section in Washington also began investigating whether the U.S. attorney’s office was leaking information about the homeowners investigation. Allegations had surfaced that Quon was getting information from the office.

The Justice Department steadfastly refused to comment on that investigation until last week after Wark pleaded guilty. A spokeswoman said the department had “completed its review and determined no further action is necessary.”

Quon’s saga has turned into one of the more bizarre twists in the homeowners association investigation. Her law office was searched in the 2008 FBI raids.

She denies it, but Las Vegas police believe she has tried to kill herself to escape the pressure of the federal investigation.

Her boyfriend, former Las Vegas police officer William Ronald Webb, was charged in November in a scheme to arrange her death using what the couple thought were undetectable illegal drugs.

Then on Aug. 17, both Quon, 51, and Webb, 43, were indicted in what prosecutors say was a botched suicide attempt that involved setting fire to her Rhodes Ranch home.

Both Quon and Webb pleaded not guilty in District Court in the alleged scheme last week. The lead investigators in the federal case were on hand for their arraignments.”

To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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Tahawwur Hussain Rana Found Guilty Following a Federal Criminal Trial in Chicago Federal District Court

June 9, 2011

Department of Justice (DOJ) on June 9, 2011 released the following press release:

Tahawwur Rana Guilty of Providing Material Support to Terror Group and Playing Supporting Role in Denmark Terror Conspiracy

CHICAGO — A Pakistani native who operated a Chicago-based immigration business was convicted today of participating in a conspiracy involving a terrorism plot against a Danish newspaper and providing material support to a terrorist organization based in Pakistan. The defendant, Tahawwur Hussain Rana, was found guilty by a federal jury that deliberated two days following a trial that began May 16, 2011, in U.S. District Court. The jury acquitted Rana of conspiracy to provide material support to the November 2008 terrorist attacks in Mumbai, India, that killed more than 160 people, including six Americans.

Rana, 50, a Canadian citizen, was convicted of one count of conspiracy to provide material support to the terrorism plot in Denmark and one count of providing material support to a designated foreign terrorist organization, Lashkar e Tayyiba (Lashkar.) He faces a maximum sentence of 30 years in prison on the two counts combined and remains in federal custody without bond. U.S. District Judge Harry Leinenweber ordered the defense to file post-trial motions by Aug. 15. 2011. No sentencing date was set.

“Today’s verdict demonstrates our commitment to hold accountable not only terrorist operatives, but also those who facilitate their activities. As established at trial, Tahawwur Rana provided valuable cover and support to David Headley, knowing that Headley and others were plotting terror attacks overseas,” said Todd Hinnen, Acting Assistant Attorney General for National Security. “We will not rest in our efforts to identify and bring to justice those who provide support to terrorists.”

“The message should be clear to all those who help terrorists — we will bring to justice all those who seek to facilitate violence,” said Patrick J. Fitzgerald, U.S. Attorney for the Northern District of Illinois.

“The effort to combat terrorism and bring justice to the victims is a global effort, requiring the cooperation and collaboration of many countries and many people. We are grateful for our role and that of the Chicago Joint Terrorism Task Force in bringing some measure of justice,” said Robert D. Grant, Special Agent-in-Charge of the Chicago Office of the FBI.

Rana is the second defendant to be convicted among a total of eight co-defendants who have been indicted in this case since late 2009. Co-defendant David Coleman Headley, 50, pleaded guilty in March 2010 to all 12 counts against him, including aiding and abetting the murders of the six American victims. Headley, who is facing a maximum sentence of life in prison, has cooperated with the government since he was arrested in October 2009, and testified as a government witness at Rana’s trial.

The six remaining defendants are all believed to be in Pakistan.

Headley testified that he attended training camps in Pakistan operated by Lashkar, a designated foreign terrorist organization, on five separate occasions between 2002 and 2005. In late 2005, Headley received instructions from members of Lashkar to travel to India to conduct surveillance, which he did five times leading up to the Mumbai attacks three years later that killed more than 160 people and wounded hundreds more.

In the early summer of 2006, Headley and two Lashkar members discussed opening an immigration office in Mumbai as a cover for his surveillance activities. Headley testified that he traveled to Chicago and advised Rana, his long-time friend since the time they attended high school together in Pakistan, of his assignment to scout potential targets in India. Headley obtained approval from Rana, who owned First World Immigration Services in Chicago and elsewhere, to open a First World office in Mumbai as cover for his activities. Rana directed an individual associated with First World to prepare documents supporting Headley’s cover story of opening a First World office in Mumbai, and advised Headley how to obtain a visa for travel to India, according to Headley’s testimony, as well as emails and other documents that corroborated his account.

Starting Nov. 26, 2008, and continuing through Nov. 28, 2008, 10 attackers trained by Lashkar carried out multiple assaults with firearms, grenades and improvised explosive devices against multiple targets in Mumbai, including the Taj Mahal and Oberoi hotels, the Leopold Café, the Chabad House and the Chhatrapati Shivaji Terminus train station, each of which Headley had scouted in advance. The six Americans killed during the three-day siege were Ben Zion Chroman, Gavriel Holtzberg, Sandeep Jeswani, Alan Scherr, his daughter Naomi Scherr and Aryeh Leibish Teitelbaum.

Regarding the Denmark terror plot, Headley admitted that in early November 2008, he met with a Lashkar member in Karachi, Pakistan, and was instructed to conduct surveillance of the Copenhagen and Aarhus, Denmark, offices of the Danish newspaper Morgenavisen Jyllands-Posten in preparation for an attack in retaliation for the newspaper’s publication of cartoons depicting the Prophet Mohammed.

In late 2008 and early 2009, after reviewing with Rana how he had performed surveillance of the targets attacked in Mumbai, Headley testified that he advised Rana of the planned attack on the Danish newspaper and his intended travel to Denmark to conduct surveillance of its facilities. Headley obtained Rana’s approval and assistance to identify himself as a representative of First World and gain access to the newspaper’s offices by falsely expressing interest in placing advertising for First World in the newspaper. Before departing Chicago, Headley and Rana caused business cards to be made that identified Headley as a representative of the Immigration Law Center, the business name of First World, according to the evidence at trial.

The government’s evidence also included transcripts of recorded conversations, including those in September 2009, when Headley and Rana spoke about reports that co-defendant Ilyas Kashmiri, an alleged Pakistani terrorist leader, had been killed in a drone attack and the implications of his possible death for the plan to attack the newspaper. In other conversations, Rana told Headley that the attackers involved in the Mumbai attacks should receive Pakistan’s highest posthumous military honors. In the late summer of 2009, Rana and Headley agreed that funds that had been provided to Rana could be used to fund Headley’s work in Denmark, and the trial evidence showed that Rana, pretended to be Headley in sending an email to the Danish newspaper.

The government is being represented by Assistant U.S. Attorneys Daniel Collins, Victoria J. Peters and Sarah Streicker, with assistance from the Counterterrorism Section of the Justice Department’s National Security Division. Federal prosecutors in Los Angeles are working jointly with their counterparts in Chicago on the broader investigation into the Mumbai attacks. The investigation has been conducted by the Chicago Joint Terrorism Task Force, led by the Chicago Office of the FBI, with assistance from the FBI offices in Los Angeles and Washington, D.C., as well as both U.S. Customs and Border Protection and the U.S. Immigration and Customs Enforcement (ICE) Office of Homeland Security Investigations.”

To find additional federal criminal news, please read The Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN List Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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