US Wants to Let Bankman-Fried WhatsApp With Some Ex and Current FTXers, Names Not Public, Order Continued Through Feb 21
The prosecutors are strikingly accommodative with Bankman-Fried, more than with other SDNY defendants. Inner City Press on the case
By Matthew Russell Lee, Patreon Maxwell book
SDNY COURTHOUSE, Feb 9 – Sam Bankman-Fried of FTX was indicted in the U.S. District Court for the Southern District of New York, leading to his arrest in the Bahamas on December 12, and extradition to the US on December 21. He was released on $250 million bond - and reappeared on January 3, see below - with the requirement of co-signers.
But he wants them secret: "LETTER MOTION addressed to Judge Lewis A. Kaplan from Mark S. Cohen dated January 3, 2023 re: Request to Redact Names and Identifying Information for Certain Bail Sureties . Document filed by Samuel Bankman-Fried. (Cohen, Mark)." Six page letter on Patreon here -
Inner City Press nearly immediately opposed, here. That was Docket Number 31. Even after that, other defendants had their co-signers named in open court, like hedge funder and fraud defendant Neil Phillips, here.
On January 30, Judge Kaplan granted the motion to unseal - but stayed the order until February 7 to allow for an appeal. Inner City Press (Matthew Russell Lee, intervenor pro se) unloaded the order to DocumentCloud here
At 2 pm on February 7, Bankman-Fried's lawyers filed notice of their appeal to the Second Circuit, to (try to) keep the names secret.
On February 9, Bankman-Fried appeared before Judge Kaplan, with the US strangely accommodative about who he contacts, names not public. Inner City Press live tweeted, here:
OK- FTX Sam Bankman-Fried bail hearing about to begin. #SBF is in the courtroom, head down at counsel table, whispering. He's appealed Press win to try to keep his co-signers secret.
All rise!
Judge Kaplan: I didn't have this case at the beginning. [Judge Abrams did, then recused herself] I'll read the 5(f) warning, Congress has said I have to tell it to the prosecution in every case. [Does] Now, the filings cause more questions.
Judge Kaplan: Why shouldn't the exemptions be part of the order and explained to me? AUSA Sassoon: We have had discussions -- Judge Kaplan: Why shouldn't I know who they are? [Inner City Press, as in its Jan 3 filing, wonders why the PUBLIC shouldn't know]
AUSA Sassoon: We have exempted people we don't expect to be trial witnesses. Judge: Looking down the road I could anticipate disputes about who has been exempted. Wouldn't it make sense to have the names of record & part of the order? I could consider sealing them
AUSA Sassoon: We assume counsel is acting in good faith [Inner City Press: What about SBF?] SBF's lawyer Mark Cohen: We'd submit it in camera. Judge: I don't need the names unless something happens. Next, what does the US mean by encrypted? I've read spy novels
AUSA Sassoon: With respect to WhatsApp, we want monitoring. Judge: I read last night the Mary Queen of Scots' letter were encrypted, without computers. We are being shortsighted, focusing on apps. AUSA Sassoon: We hadn't envisioned the defendant handwriting notes
Judge Kaplan: What about ephemeral? AUSA Sassoon: Auto deletion features like Snap Chat. It's an issue of preservation. Judge Kaplan: Aren't you proposing to allow auto-deletion? AUSA Sassoon: True of WhatsApp. But they've shown us why it's important for defendant
[Note: for other less affluent defendants, these prosecutors don't make so many exemptions and listening to arguments why he or she needs WhatsApp] SBF's lawyer Everdell [who also represented Ghislaine Maxwell] We were trying to find a practical solution
Judge Kaplan: What about iMessage? Everdell: It changes with the operating system. I don't know if Apple is able to keep them on its servers and we can get them. The government was comfortable with the platform Judge Kaplan: I am less interested in his convenience
Judge Kaplan: There is still snail mail, and email, without the same risks. Everdell: We trying to leave a record. We worked a lot on WhatsApp, there are companies that provide a compliance app that put the messages in the cloud - like for regulatory compliance
Everdell: We can propose a list of apps to the Court in a subsequent submission.
AUSA Sassoon: OK. Judge Kaplan: I will extend my Feb 1 order pending receipt of whatever further submission you want to make.
SBF's lawyer: We'll submit by Monday. Judge: Feb 21. Judge Kaplan: I want to make sure we're still on track. Anything else? No. No. Judge Kaplan: Thank you. Adjourned.
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