by Greg Piper
FBI repeatedly admitted paying Twitter, other private entities for decades, so it can't assert a wholesale FOIA exemption for law enforcement ops, civil liberties group tells court. Michael Caputo gingerly petitions Judge Boasberg.
The Freedom of Information Act doesn't apply to records related to the FBI's payments to social media companies to allegedly induce them to censor lawful speech at odds with the Biden administration's preferences, according to the Trump administration.
A federal judge slapped down by his appeals court for "abuse of discretion" — continuing a contempt investigation of the Trump administration related to its deportation flights — saw nothing wrong with secretly authorizing the Biden administration to pore over the whole digital life of President Trump's friend and former adviser.
Government watchdogs are pressing different judges in D.C. federal court to open the books on the Biden administration's alleged censorship-industrial complex and weaponization of the feds against political enemies, as the FOIA case nears its conclusion and Michael Caputo seeks a peek at the search warrant against him authorized by U.S. District Judge James Boasberg.
The FBI wrongly claims that a FOIA exemption for records "compiled for law enforcement purposes" completely shields its payments to platforms including the former Twitter, known to have received more than $3 million to process censorship requests, the New Civil Liberties Alliance said in its motion for summary judgment against the feds.
Judicial Watch asked Judge Boasberg to let its client, Caputo, intervene in the legal process against him – hidden from Caputo for a year, at Boasberg's direction – and unseal materials related to the "sweeping" Nov. 18, 2024 search warrant for his "entire online private life" as hosted by Google, from email and banking records to calendar and search history.
Congress is also considering whether to statutorily prohibit the practice known as jawboning, when the government leans on private parties to take action unconstitutional for itself.
Sens. Ted Cruz, R-Texas, and Ron Wyden, D-Oregon, introduced the JAWBONE Act last month, which would authorize victims of government-directed censorship to sue agencies or employees for jawboning, whether it worked or not, and seek monetary damages. Agencies would also have to show Congress "certain communications with companies," the senators said.
The bill would stop the Biden administration's use of the Cybersecurity and Infrastructure Security Agency "to pressure Big Tech into ‘canceling’ Americans who spoke out against vaccine mandates and election fraud," Cruz said. "The most blatant example" for Wyden "is Trump threatening cable companies because he doesn’t like their late-night shows."
FBI stonewalled through 'illiberal interpretation' of FOIA request
The FBI's exposed $3 million payment to Twitter spurred legislation in 2023 to impose a one-year moratorium on taxpayer funding from the Department of Justice to social media companies, the subject of NCLA's FOIA requests and an audit of payments between DOJ and Big Tech going back to 2015.
The ELON Act was named after Twitter's new owner, Elon Musk, whose invitation to journalists to dig through the company's files exposed its vast communications with the feds and speech-policing groups on squelching supposed misinformation and disinformation on COVID-19, elections and Hunter Biden's abandoned laptop.
NCLA's FOIA suit for records related to FBI payments to social media, pending before U.S. District Judge Carl Nichols, is one of many by watchdogs regarding Biden administration-Big Tech communications, including two meetings between the FBI and Twitter.
For more than three years, the FBI has acted as if NCLA had requested "only one discrete category of records that, conveniently enough," the government could refuse to even search for under what's known as a Glomar response, meaning that to confirm or deny their existence would imperil law enforcement operations, the motion says.
But the civil liberties group deliberately requested records on FBI payments to Twitter and "comparable entities" for their time spent processing "any" FBI requests – such as "to induce, facilitate, or compensate other actions intended to limit speech" – not just "for their compliance with routine legal process."
That means one FOIA violation, the government's "illiberal interpretation" of its records request, "led to another FOIA violation: their inadequate search for records," the motion says. The FBI instead "reproduced a few heavily redacted documents, duplicating and slightly supplementing" a production from a prior FOIA suit, and never tried to segregate responsive records.
The FBI could determine the law enforcement exception applies only after reviewing its reimbursements and their purposes, which might reveal payments for its "content-moderation" suggestions, "informal" takedown requests or whispers that companies should "modify algorithms" to further the FBI's interests against misinformation, NCLA argues.
The watchdog said it was obviously not asking for "investigative files concerning a particular individual or records whose very existence necessarily reveals a protected law enforcement technique." Since the FBI has already admitted paying Twitter, it cannot invoke Glomar "to each and every requested record."
The U.S. Court of Appeals for the D.C. Circuit has already prohibited agencies from invoking FOIA exemptions when they have "officially acknowledged otherwise exempt information through prior disclosure," NCLA said.
Given then-FBI Director Chris Wray's testimony to Congress three years ago that "longstanding" federal law – the 1986 Stored Communications Act – requires it to "pay companies for their costs in responding to a legal process," the FBI cannot declare harm would come from confirming or denying the existence of any NCLA-sought records, the motion says.
The government's response to NCLA's motion is due by Aug. 14.
Convincing Boasberg to back down
A political consultant-turned-documentary filmmaker who investigated Hunter Biden's foreign business dealings before joining Trump's third campaign for president, Caputo learned he had been targeted in a criminal investigation only after it was shut down, letters between Congress and the FBI reviewed by Just the News revealed.
The FBI went after him two weeks after he joined the campaign, targeting an email account with the campaign's "private strategies and deliberations," the correspondence said.
The motion to unseal by Caputo, the former assistant secretary for public affairs at the Department of Health and Human Services and self-described "longtime ally" of Trump, dances around criticizing Judge Boasberg for authorizing such a far-reaching subpoena and gagging Google so it couldn't tell Caputo it was responding.
"This Court has both the authority and the duty to consider the public's qualified First Amendment and common law right of access to judicial records," the motion says. The government has no "compelling" interest in continued secrecy, and Caputo and Judicial Watch have "powerful interests in disclosure."
All Caputo wants is to know why he was targeted and "the evidence relied on to substantiate the search warrant," the motion says. Judicial Watch cited its success obtaining judicial records related to FBI and DOJ investigations of Trump and his associates, "within which the warrant targeting Caputo must be understood."
The government can't possibly meet its burden to keep the warrant sealed, given public interest in knowing whether it was sought "to target a political opponent's ally," Caputo's plans to make it public and no threat to "ongoing prosecution," the motion says.
It "retained whatever it extracted, and never charged him with any crime," Judicial Watch argues. "He cannot assess whether to seek return of his property or whether the warrant that authorized the seizure was constitutionally defective" until he sees it.
Boasberg ordered the government to respond to the motion by July 16.
Greg Piper
Source: https://justthenews.com/accountability/watchdogs/watchdogs-fight-expose-fbi-payments-social-media-sweeping-search-warrant
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