What Were You Thinking?

On today’s podcast, David and Sarah are amazed by developments in the Sarah Palin trial, ...

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On today’s podcast, David and Sarah are amazed by developments in the Sarah Palin trial, and they explain why. They discuss some excellent commentary on the latest Durham allegations, and spend some time talking about Florida’s “don’t say gay” law and wonder whether it might have constitutional problems. They end with the Rule 22.4 discussion that the people demand.

Show Notes:

–Andrew’s piece: “Making Sense of the Latest Clinton-Trump-Russia Court Filing”

–Julian Sanchez’s thread on the Durham filing

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  1. Avatar photo
    PaulH

    I don't find Julian's Sanchez thread on the Durham filing all that convincing.

    He states that the work of the GA tech researchers was OK because they properly accessed the DNS to investigate threats. It is true that that Neustar and the researchers were properly given access to the data. But a security firm like Neustar and the researchers would be engaged to look for cyber threats like attempts to infiltrate/hack a network or the possibility that malware had infected a computer on the network. It seems highly implausible that they were actually given the counterespionage responsibility of analyzing how the individuals were using the network to see if there was the possibility of untoward communications with foreign powers. Indeed, if we look at Durham's earlier filings, we see that Joffe was specifically looking for Trump related activities and people in his company were uncomfortable with the analysis that that he was asking to be done -- in other words he wasn't generally looking for espionage possibilities. That strongly suggests that he was using the data in impermissible ways and, specifically, for his own personal and political purposes.

    So granting that Joffe had legal access to the data, there is still a possibility of illegality here. Misusing data that one has been given legal access to can be a violation of privacy laws under many circumstances. There are various possible reasons that Durham has not (yet) publicly indicted Joffe for his actions.

    Moving to another issue, there is an ambiguity on whether or not he was snooping on the Trump White House. Durham states that the data included data from 2017 but does not specify how late in 2017. Joffe's lawyers claim that the data came only from the Obama administration. So it is possible that Joffe was snooping only on the Trump transition team (while they were having meetings with EOP officials) and not the Trump administration.

    In any case, this matter should be investigated further. It is possible that Joffe stopped his snooping once Trump became President, but there is no particular reason to think that we would have. Obviously he felt entitled to use his position at his tech company to analyze data to find suspicious information about Trump -- so he might well have continued to do so during the Trump administration, even if, after being rebuffed by the FBI and CIA, he eventually figured out that the information he was able to get was not sufficient to pique their interest.

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  2. Avatar photo
    Whitman H. Brisky

    David, I think it is highly unlikely that the education establishment would ever agree on some "reasonable curriculum" for schools. In most cases the establishment sees it as its duty to teach race, sex and gender (and a lot of other stuff) from the progressive perspective so us old fashioned parents can't pass along our hatreds and prejudices to our children. Agreement will never happen. Just think of the text book wars in Texas. But I agree that these vague and heavy handed laws are either invalid or will never accomplish what they are intended to accomplish. The best first step should be transparency. Publish the curriculum on-line so parents and other citizens can see it, have teachers publish their lesson plans the same way, and let democracy take its course.

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  3. david rae

    I understand the 2+2=4 fact check idea, but where IS the bar for Sarah Palin or any other "celebrity" in cases like these? Can the NY Times say whatever it wants ("we have evidence of possible child abuse, but won't reveal our sources...")? If the NY Times didn't have to research any connection between Jared Loughner and Sarah Palin before printing the article, what prevents the media from publishing anything, no matter how unfounded, if they can retract or correct it later, after the damage is done?

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    Jeff Finnan

    On a less serious note, some joking mention of having a 22.4 tattoo was made. My thoughts immediately wandered to my days as a chemistry teacher. I bet you some high school student has penned this number on their leg to be revealed when they inched up their shorts for help on a chemistry test. I’m sure you all remember that one mole of an ideal gas at STP (not the gas additive) has a volume of a typical beach ball, i.e., 22.4 liters.

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    Blake

    Question I’m hoping someone can help clarify re: the Durham stuff - while it does seem obvious that so far the only illegal action was possibly the lie to the FBI, a tech guy using access to one candidates private information while he’s being promised a job by the political opponent is at least shady, right? My question is was there something different about watergate (other than burglary) that made it more illegal? Nixon surely couldn’t have been legally tried for it, just impeached and removed, right? So isn’t this actually pretty similar to watergate in that regard? I don’t think it has to rise to the level of prosecution to be news worth reporting. The fact that Hilary was so quickly tweeting about it seems like she HAD to know what was going on, and while that’s not illegal, it should at least be a part of the discussion. I don’t like Trump OR Hilary - they’re both vile, in my opinion. But it is definitely frustrating for there to seem to be a smoking-gun-in-her-hand threshold for Hilary to be implicated in these kind of things, while Russia-gate was essentially presented as FACT by all major media outlets for years. It bothers me because there are plenty of other reasons to attack trump without having to make up lies about him being a Russian agent, but it’s something his supporters (and he) can correctly claim was a witch hunt and then say “so is every other attack on Trump”. Anyway, I’m rambling so TLDR: isn’t it very similar to the dirty politics that was Watergate?

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  6. Nikitas Hatzimihail

    Thank you! I am using Palin v NYT for my comparative law class, the case seems like the gift that keeps on giving in that regard... Having said this, I am amazed as to how Judge Rakoff -- slightly elder brother of Professor Rakoff btw? -- botched this...
    Btw, I suspect that "several" may be too conservative a word to describe how many of them learned the news prior to their verdict. Sarah was quite right to assume that the NYT sent a push notification (4.15pm EST "A judge said he planned to dismiss Sarah Palin's lawsuit against the Times when jurors, who are still deliberating, finish their work"). Glad I took a screenshot! though it was too late in my part of the world to contemplate on this (especially when we have AO to explain).

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  7. Centrist

    Great podcast as always! I would suggest at some point you have a cyber expert as guest - as you have done in the past on various legal issues - because my experience in general on reporting that involves tech is that it is frequently mis-represented and almost invariably misunderstood. I have not read the full Durham report, but what I have seen quoted in *tech* publications is that the tech guy was an employee of a firm (named in the tech articles but not mentioned here because it is speculation) whose *function* it is to monitor DNS traffic for cyberattacks and malware. By the very nature of a hosted service, they have access to *all* the data on their servers and network traffic. And likewise the nature of malware and intrusion detection is to identify (and then block & filter out) bad actors on the network - which are frequently only a tiny portion of the traffic, may remain unidentified for months, and are ultimately only detected by small patterns of anomalous behavior. So 1000 out of 3M, or 10M or more, strikes me as a perfectly reasonable ratio of potentially suspicious activity to overall traffic. As with you, I am just reading the tech tea leaves from the outside, in an activity I have not monitored closely, so I may be incorrect, but the fact that the data was in a hosted environment dramatically changes the notion of access, from the point of view of the company doing the hosting.

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    Marc Frischhertz

    In a strange way, it seems these missteps are more likely to help Palin’s case, which oddly isn’t what she even wants. If she wins, then no Supreme Court case to change the Malice standard.

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  9. Thomas Dickinson

    We're all focused on the jurors' learning of the judge's decision on the motion. How about the other part where the judge says it's standard practice for his clerk to ask jurors if they had any problems with the instructions? What does he do when the jurors tell him the misunderstood some major concept? Does he bring back the attorneys and share the info with them? Seems to require some follow up . . .

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    Julie from Texas

    It sounds to me like that Florida law was very poorly written and likely not needed. However, it felt like David and Sarah were being somewhat dismissive of parents' concerns. And while I think the breadth of the problem is way overstated, some schoolteachers have used their positions to encourage sexual questioning at very young ages, and for a few of those kids, the outcomes have been devastating. Yes, I think there's been mistreatment of LGBT folks in various settings, including schools, and that's awful and shouldn't happen! But it's also a problem when kids feel pressured to declare their gender or orientation before they even really know what that means or who they are. Abigail Shrier and others have highlighted ways in which that approach could hurt kids, and—again—while it's not that common, it is disconcerting.

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