Bloggers have First Amendment protections, federal court rules

  A federal appeals court ruled Friday that bloggers and the public have the same First Amendment protections as journalists when sued for defamation: If the issue is of public concern, plaintiffs have to prove negligence to win damages.
The 9th U.S. Circuit Court of Appeals ordered a new trial in a defamation lawsuit brought by an Oregon bankruptcy trustee against a Montana blogger who wrote online that the court-appointed trustee criminally mishandled a bankruptcy case.
The appeals court ruled that the trustee was not a public figure, which could have invoked an even higher standard of showing the writer acted with malice, but the issue was of public concern, so the negligence standard applied.
Gregg Leslie of the Reporters Committee for the Freedom of the Press said the ruling affirms what many have long argued: Standards set by a 1974 U.S. Supreme Court ruling, Gertz v. Robert Welch Inc., apply to everyone, not just journalists.
"It's not a special right to the news media," he said. "So it's a good thing for bloggers and citizen journalists and others."
Crystal L. Cox, a blogger from Eureka, Mont., now living in Port Townshend, Wash., was sued for defamation by Bend attorney Kevin Padrick and his company, Obsidian Finance Group LLC, after she made posts on several websites she created accusing them of fraud, corruption, money-laundering and other illegal activities. The appeals court noted Padrick and Obsidian were hired by Summit Accommodators to advise them before filing for bankruptcy, and that the U.S. Bankruptcy Court later appointed Padrick trustee in the Chapter 11 case. The court added that Summit had defrauded investors in its real estate operations through a Ponzi scheme.
A jury in 2011 had awarded Padrick and Obsidian $2.5 million.
"Because Cox's blog post addressed a matter of public concern, even assuming that Gertz is limited to such speech, the district court should have instructed the jury that it could not find Cox liable for defamation unless it found that she acted negligently," judge Andrew D. Hurwitz wrote. "We hold that liability for a defamatory blog post involving a matter of public concern cannot be imposed without proof of fault and actual damages."
The appeals court upheld rulings by the District Court that other posts by Cox were constitutionally protected opinion.
Though Cox acted as her own attorney, UCLA law professor Eugene Volokh, who had written an article on the issue, learned of her case and offered to represent her in an appeal. Volokh said such cases usually end up settled without trial, and it was rare for one to reach the federal appeals court level.
"It makes clear that bloggers have the same First Amendment rights as professional journalists," he said. "There had been similar precedents before concerning advocacy groups, other writers and book authors. This follows a fairly well established chain of precedents. I believe it is the first federal appeals court level ruling that applies to bloggers."
An attorney for Padrick said in an email that while they were disappointed in the ruling, they noted the court found "there was no dispute that the statements were false and defamatory."
"Ms. Cox's false and defamatory statements have caused substantial damage to our clients, and we are evaluating our options with respect to the court's decision," wrote Steven M. Wilker.

World's greatest hacker calls Healthcare.gov security 'shameful'

Security expert -- and once the world's most-wanted cyber criminal -- Kevin Mitnick submitted a scathing criticism to a House panel Thursday of ObamaCare's Healthcare.gov website, calling the protections built into the site "shameful" and "minimal."
In a letter submitted as testimony to the House Science, Space and Technology Committee, Mitnick wrote: "It's shameful the team that built the Healthcare.gov site implemented minimal, if any, security best practices to mitigate the significant risk of a system compromise."
Mitnick's letter, submitted to panel Chairman Lamar Smith, R-Texas, and ranking member Eddie Bernice Johnson, D-Texas, held comments from several leading security experts.
Mitnick concluded that, "After reading the documents provided by David Kennedy that detailed numerous security vulnerabilities associated with the Healthcare.gov Website, it's clear that the management team did not consider security as a priority."
RAW DATA: Security experts on Healthcare.gov issues
His comments were backed up by testimony by Kennedy, who is CEO and founder of TrustedSec LLC and a self-described "white hat hacker," meaning someone who hacks in order to fix security flaws and not commit cybercrime. In November, Kennedy and other experts testified before the same panel about security issues on Healthcare.gov.
Kennedy testified that most of the flaws they identified at the time still exist on the site, and said "indeed, it's getting worse," telling the panel that he and other experts have seen little improvement in the past two months.
"Nothing has really changed since our November 19 testimony," Kennedy said.
Only one-half of a vulnerability has been found and plugged since then, he told the committee. "They did a little bit of work on it and it's still vulnerable today."
Also speaking at the panel were Michael Gregg, chief executive officer of Superior Solutions, Waylon Krush, co-founder and CEO of Lunarline, and Dr. Lawrence Ponemon, chairman and founder of the Ponemon Institute.
There have been no confirmed security breaches or hacks of the site yet, despite the alarming current and past testimony from the panel. (At the November panel, Kennedy said the website "may have already been hacked.") The flaws that have been found are mere speculation, pointed out Krush, whose firm has done security work for the Department of Health and Human Services.
“Nobody here at this table can tell you there is a vulnerability,” he said during testimony. To actually test the flaws would require hacking the website itself, which would mean breaking the law, he noted.

American POW's fate could hang in balance as US, Afghanistan struggle to strike security pact

Efforts to search for America's only living POW currently held by the Taliban could be seriously set back if the U.S. and Afghanistan governments cannot agree on a vital security pact.
The Obama administration has set a new deadline of Jan. 28 for Afghan President Hamid Karzai to sign the agreement, which would provide U.S. troops with protections they need in order to stay after 2014.
But few think the unpredictable Afghan president will sign before he leaves office in April. And military experts say that without an agreement, all U.S. troops will likely be pulled from the country at the end of this year.
For Sgt. Bowe Bergdahl, who was captured by the Taliban in 2009 and traded to a Pakistani faction known as the Haqqani group, failure to sign the security agreement could be a death sentence, officials say -- as it would make it increasingly difficult to track him and secure his safe release.
A new video intercepted by the U.S. government marks the first time Bergdahl has been seen in three years. The proof of life shows a prisoner who is in deteriorating health, which has U.S. Defense officials worried. It makes reference to Dec. 14, 2013 and Nelson Mandela's death, which has led U.S. intelligence analysts to conclude that the video was made recently.
Bergdahl's parents pleaded in a written statement to his captors to release their only son and gave words of encouragement to Bergdahl himself.
"As we have done so many times over the past  4 and a half years, we request his captors to release him safely so that our only son can be reunited with his mother and father," Bowe's parents wrote from their home in Idaho. "BOWE - If you see this, continue to remain strong through patience. Your endurance will carry you to the finish line. Breathe!""
But the security agreement talks loom over their efforts.
Among the revelations in former Defense Secretary Robert Gates' new book, "Duty," is just how difficult it's been to secure status of forces (SOFA) and bilateral security agreements at the end of America's contentious wars. Gates recalled how he was told by his commanders -- in this case, Gen. David Petraeus, who oversaw the surge forces in Iraq -- that Iran was in fact paying Iraqi officials not to consent to the agreement which would allow U.S. forces to stay after the Iraq war ended.
"Petraeus told me an Iranian brigadier general had been arrested in Iraq for bribing legislators with $250,000 each to vote against the SOFA," Gates wrote in his memoir. "Later in the fall, we learned that the head of the Iranian Quds Force, Major General Qassem Suleimani, had told President Talabani that Iraq should not sign any agreement with Bush."
Similar meddling by those who do not want the U.S. to keep its influence in the region after 2014 can be assumed to be occurring in Afghanistan.

Investigate the investigators? GOP lawmakers urge probe of IRS scandal review

Republican lawmakers, frustrated by the Justice Department's slow-moving probe into the IRS targeting scandal and "conflict of interest" concerns, are now calling for the investigators to be investigated. 

Reps. Darrell Issa, R-Calif., and Jim Jordan, R-Ohio, on Wednesday formally requested that the Justice Department's inspector general launch his own probe into the department's review of IRS activities.
The request marks a serious escalation of their complaints about the department's conduct and, specifically, a decision to have a President Obama backer lead the investigation.
"The Department has created the appearance that it is not taking seriously its responsibility to conduct a thorough investigation of IRS misconduct," Issa and Jordan wrote in a letter to Inspector General Michael Horowitz.
Such complaints have come to a head this week, as conservative groups and lawmakers worry that the investigation is fizzling -- eight months after the agency first acknowledged it singled out conservative groups for extra scrutiny when they applied for tax-exempt status.
In their letter, Issa and Jordan cited a litany of concerns, including recent claims from administration officials that criminal charges in the case are unlikely. But they centered on the decision to appoint Barbara Kay Bosserman to lead the FBI probe. Campaign finance records show Bosserman has given more than $6,000 to Obama's two presidential campaigns.
"Publicly available information suggests that Ms. Bosserman may have a conflict of interest in this matter," they wrote, also citing a Fox News report that she attended a bill-signing ceremony at the White House in 2009.
Separately, the lawmakers wrote to Labor Secretary Thomas Perez asking him about any possible involvement, given his prior position as Bosserman's boss in the Civil Rights Division of the Justice Department.
The Justice Department, though, has pushed back hard on those questioning Bosserman's fitness for the role.
One official said last week that simply because a trial attorney exercised her constitutional right to make a political donation does not mean she's not acting professionally. Officials stressed that they cannot consider political affiliation when handing out case assignments.
"It is contrary to Department policy and a prohibited personnel practice under federal law to consider the political affiliation of career employees or other non-merit factors in making personnel decisions," the department said in a statement.
On Monday, a DOJ official also said that the ceremony Bosserman attended in 2009 -- for the signing of hate crimes legislation -- was attended by the Civil Rights Division team, which was described as "typical" given their "technical support" on the bill.

Senator presses DHS chief on transporting smuggled kids, likens to ‘Furious’ scandal

The Obama administration’s alleged practice of transporting smuggled children to their illegal immigrant parents in the U.S. has caught the attention of Congress, with a Republican senator likening the practice to the “disastrous” Operation Fast and Furious.
In a letter obtained by FoxNews.com, Sen. David Vitter, R-La., asked newly confirmed Homeland Security Secretary Jeh Johnson a string of questions about the apparent policy. The practice came to light last month after a federal judge in Texas claimed immigration agents were intercepting human smugglers transporting children at the U.S.-Mexico border -- and then delivering those children to illegal immigrant parents in the U.S.
“I am shocked to learn that the federal government is a participant in an international human smuggling conspiracy,” Vitter wrote. “I cannot imagine a case in which such a policy would be in accordance with the established mission of the Department, particularly since this encourages additional smuggling and the sometimes extreme abuse of the smuggled children involved.”
In a court order last month, U.S. District Judge Andrew S. Hanen voiced concern about the unintended consequences of such a practice. Vitter echoed those concerns in his letter.
Further, the senator raised the specter of Operation Fast and Furious, where federal agents allowed guns to be illegally trafficked, only to watch those guns show up at numerous crime scenes – including that of the murder of a U.S. border agent.
“I am particularly surprised that a federal agency would assist an international criminal conspiracy after the disastrous Operation Fast & Furious directly resulted in the heinous murder of CBP Agent Brian Terry in December 2010,” Vitter wrote.
Like Hanen, he noted that those being smuggled across the border face abuse and dangerous conditions, and said “easing the ability of immigrants to illegally enter and remain in the United States only encourages greater numbers of illegal border crossings.”
He asked how long the practice has been in place, how many times this has happened, and what statute authorizes it.
The situation is likely more complicated and involves more agencies than the judge’s order made it sound. While Hanen focused on the Department of Homeland Security, officials say minors are typically handed over to the Office of Refugee Resettlement, within the Department of Health and Human Services.
Thousands of illegal immigrant children and teens are caught trying to enter the United States, and often sent to federally-run care centers while their status is determined.
The question is whether the Obama administration is engaging in a risky practice by delivering some children to their parents. Critics argue that the practice would only encourage more parents to have their children smuggled over the border, through operations often connected to the drug cartels.
Administration officials defended their actions last month.
The Department of Homeland Security said in a December statement that it was following the law, and that its officers are committed to the "safe, fair and humane treatment" of minors.”
The head of Immigration and Customs Enforcement also defended the role of federal agents.
“While the court’s comments did not relate specifically to ICE, it is clear that the transportation of unaccompanied children (UAC) by ICE personnel is appropriate and legal,” acting Director John Sandweg wrote in a brief email to staff, obtained by FoxNews.com.

Questions arise over Obama's pick for Justice post

Critics of President Obama's nominee to head the Justice Department's Civil Rights Division have described Debo Adegbile as “radical,” “dangerous” and “outside the mainstream.” Now he is facing heated criticism for his role in getting convicted cop-killer Mumia Abu-Jamal's death sentence overturned during his time as a lawyer with the NAACP Legal Defense and Educational Fund (LDF).  
Abu-Jamal was convicted of the 1981 killing of Philadelphia police officer Daniel Faulkner.
Adegbile was asked about the case during a Senate Judiciary Committee hearing last week and replied, "It's important, I think, to understand that in no way does that legal representation, zealously as an advocate, cast any aspersion or look past the grievous loss of Sergeant Faulkner."
His critics, including Congressman Mike Fitzpatrick, R-Pa., disagree. According to Fitzpatrick, "[Abu-Jamal's] attorneys ...  attended a rally in Philadelphia and said that they could not have been prouder than to have had the opportunity not to represent justice, not to fight for the Constitution, but to represent Mumia Abu-Jamal."
Faulkner's widow, Maureen, says she is "outraged" by Obama’s decision to nominate Adegbile to such an important post.  "To have a man who defended a murderer, someone who murdered a police officer with premeditation and malice, is a radical, is a Black Panther, and to give him an appointment, to nominate him, to the Department of Justice, I mean it's a disgrace."
Adegbile is senior counsel to the Senate Judiciary Committee, where chairman Sen. Patrick Leahy, D-Vt., praised his "calm demeanor" and ability to "build consensus."
Leahy added, "He is a careful lawyer and good listener."
Dozens of organizations, led by the Leadership Conference on Civil and Human Rights, penned a letter of support to the Senate as well - calling Adegbile "a tireless advocate, a skilled litigator, and a well-respected member of the legal community who is extraordinarily qualified for and suited to this position."
At the same time, Ed Whelan, President of the Ethics and Public Policy Center, contends there are questions about Adegbile's qualifications. There were reports that President Obama intended to nominate him to serve as a judge on the D.C. Circuit back in 2011, and that Adegbile was submitted to the American Bar Association (ABA) for a rating.  Whelan says Adegbile didn't make it past the ABA's qualification screening.
Skeptics are also publicly speculating about whether Adegbile is the best fit to head up a department that has been the subject of much recent criticism.  Last year the Justice Department's Inspector General released a report blasting the Civil Rights Division, citing inappropriateconduct, harassment of conservatives in the division, and the appearance of partisanship and racial politics.
Many wonder why the White House would tap such a controversial nominee when the Division is in need of a public relations boost.
Hans von Spakovsky, Senior Legal Fellow with the Heritage Foundation, believes the White House doesn't care about the public perception and says the administration sees the Division as "a tool to be used ... to do things like win elections."
He also says of Adegbile,,"He filed a brief in the Supreme Court in a case in which he said it was okay for universities to discriminate against white students because of their race in college admissions and said employers should not be able to do criminal background checks."
However, both Adegbile's supporters and detractors believe he will successfully navigate the Senate votes necessary to be confirmed to head up the Civil Rights Division in the near future.

End Near? Doomsday Clock Holds at 5 'Til Midnight

Medicine?