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Save people like me a trip to the Google: NSL = A national security letter (NSL) is an administrative subpoena issued by the United States federal government t

Save people like me a trip to the Google: NSL = A national security letter (NSL) is an administrative subpoena issued by the United States federal government to gather information for national security purposes. NSLs do not require prior approval from a judge.

iamdave 11y ago
IANAL, but how is it a subpoena if it doesn't originate from the judiciary?
- baddox 11y ago
  I guess you can argue semantics, but it's an order accompanied by a credible threat of violence if the order is not obeyed.
  - aback 11y ago
    I know it requires Tim Cook to be willing to martyr himself, but do we really see Obama whisking the CEO of Apple Computer off to Guantanamo or some supermax prison? I'd maybe call the bluff, and take my political stand.
    - ThrustVectoring 11y ago
      Cook wouldn't have to go that far. The court order specified Apple, not Tim Cook personally. He can simply resign instead of following the court order. For that matter, so can the engineers that Apple would need to work on this project.
      - aback 11y ago
        That's interesting. IANAL but seems like you're missing something. Apple can simply let Employee B take Employee A's place after A quits. When the authorities come for B, B can quit, and Apple can re-hire A. Apple never has to comply.
        ThrustVectoring 11y ago
        Employee A doesn't have to actually quit, they just have to credibly threaten to. Say, by signing an open letter that says that they'd quit before helping backdoor the iPhone. Apple can then claim that they cannot bring together a team that is willing and able to backdoor that iPhone. When you break down the process of having a private company comply with an order to create a particular piece of software, there's many failure points. The counter from the governmental side is "we will give your company massive fines until and unless your company complies". As a note, the actual text of the court order (https://www.documentcloud.org/documents/2714001-SB-Shooter-Order-Compelling-Apple-Asst-iPhone.html https://www.documentcloud.org/documents/2714001-SB-Shooter-O...) explicitly says that Apple can appeal it on grounds that it is an unreasonable request. Uncooperative engineers can make it an unreasonable request, and have the legal right to be as uncooperative as they want to be in this case. And, they're on the same side as the CEO of Apple ethically, so it isn't career suicide.
        baddox 11y ago
        > The counter from the governmental side is "we will give your company massive fines until and unless your company complies". At which point is becomes worth it for Apple to pay an engineer to do the job. I doubt it wouldn't take much of a bonus to get someone to do it.
        Alupis 11y ago
        > > The counter from the governmental side is "we will give your company massive fines until and unless your company complies". > At which point is becomes worth it for Apple to pay an engineer to do the job. I doubt it wouldn't take much of a bonus to get someone to do it. What happens if Apple says they aren't paying these unjust fines? Theoretically, court order, law, or what-have-you, Apple can just straight refuse to participate (and hopefully other big tech companies would follow suit). Sure the gov't can make arrests, threats, seize assets -- but in the end, the gov't still don't get what they want (but they do get a ton of very, very bad PR in the process). At a point, the gov't would have to stop -- destroying the world's most valuable company, and one of America's sweetheart companies, all over this... wouldn't play out well.
    - baddox 11y ago
      I presume it would just be significant fines, or perhaps some FCC or FTC regulations that would harm Apple's business.
- berkeleynerd 11y ago
  Nicholas Merrill famously fought a 11 year legal battle (and finally won) the right to reveal all aspects of a National Security Letter (NSL) served to him. Almost all such letters are accompanied by a complete gag order. https://www.calyxinstitute.org/news/federal-court-invalidates-11-year-old-fbi-gag-order-national-security-letter-recipient-nicholas https://www.calyxinstitute.org/news/federal-court-invalidate... EDITED / CORRECTIONS - Thanks commenters - The battle was won by Nicholas Merrill not Ladar Levison of Lavabit fame as I originally posted.)
  - uxp 11y ago
    It was Nicholas Merrill from a little ISP called Calyx Internet Access that famously challenged the NSL process. LavaBit's Lamar Levinson is assumed to be under a gag order from some request he was given by the US government, of which he declined by way of folding his company and claiming that he could not comply moving forward if he was no longer the middleman of some form of communications.
    - schoen 11y ago
      As a further correction, the Lavabit founder's name is spelled Ladar Levison. Rather than making assumptions, you can read about the specific kinds of legal process involved in the Lavabit case at https://en.wikipedia.org/wiki/Lavabit https://en.wikipedia.org/wiki/Lavabit You can also read the Fourth Circuit decision on his appeal, among other things.
- ipsin 11y ago
  https://en.wikipedia.org/wiki/Administrative_subpoena https://en.wikipedia.org/wiki/Administrative_subpoena
tjohns 11y ago
Not only do NSLs not require approval from a judge, they also include a very intimidating gag order that prevents you from discussing the issue with anyone else (including even your own family). One of the big problems with NSLs is that you can't let anyone know that you've received or acted on one, so there's very little accountability. Hence the recent trend of some companies including a warrant canary on their websites, under the assumption that a NSL can't prevent you from _not_ saying something (e.g. deleting the canary).
- dak1 11y ago
  I think deleting something would be considered an active action. The trick with a canary is that you're choosing not to do something, so it can't compel you to act (as compared to, for example, telling you you can't delete the canary). So for it to work, you need to issue a statement every month that says you haven't been issued a NSL, and then simply not issue a statement the month you finally were issued a NSL. That would then require the government to actually compel speech (compel you to post a new notice saying you didn't receive a canary). Of course, the above should make it blatantly obvious how absolutely absurd the blanket gag order on NSLs are.
  - dak1 11y ago
    Interestingly, if you accept that code can be copyrighted, and that only things that are expressions (speech) are eligible for copyright ("A copyrighted work must be an original work of authorship which is fixed in a tangible medium of expression"), then code == speech. So, by compelling Apple to code something that doesn't exist, the government would indeed actually be compelling speech.
    - dragonwriter 11y ago
      Court processes involve compelled speech all the time. Heck, compelling witness testimony, which is one of the most well-established parts of the court process, is nothing but compelling speech. So, I'm not sure what the value is of a clever argument that compelling Apple to comply with the order here is "compelling speech" is supposed to be (likewise, the upthread one about NSL canaries.)

iamdave 11y ago

IANAL, but how is it a subpoena if it doesn't originate from the judiciary?

baddox 11y ago
I guess you can argue semantics, but it's an order accompanied by a credible threat of violence if the order is not obeyed.
- aback 11y ago
  I know it requires Tim Cook to be willing to martyr himself, but do we really see Obama whisking the CEO of Apple Computer off to Guantanamo or some supermax prison? I'd maybe call the bluff, and take my political stand.
  - ThrustVectoring 11y ago
    Cook wouldn't have to go that far. The court order specified Apple, not Tim Cook personally. He can simply resign instead of following the court order. For that matter, so can the engineers that Apple would need to work on this project.
    - aback 11y ago
      That's interesting. IANAL but seems like you're missing something. Apple can simply let Employee B take Employee A's place after A quits. When the authorities come for B, B can quit, and Apple can re-hire A. Apple never has to comply.
      - ThrustVectoring 11y ago
        Employee A doesn't have to actually quit, they just have to credibly threaten to. Say, by signing an open letter that says that they'd quit before helping backdoor the iPhone. Apple can then claim that they cannot bring together a team that is willing and able to backdoor that iPhone. When you break down the process of having a private company comply with an order to create a particular piece of software, there's many failure points. The counter from the governmental side is "we will give your company massive fines until and unless your company complies". As a note, the actual text of the court order (https://www.documentcloud.org/documents/2714001-SB-Shooter-Order-Compelling-Apple-Asst-iPhone.html https://www.documentcloud.org/documents/2714001-SB-Shooter-O...) explicitly says that Apple can appeal it on grounds that it is an unreasonable request. Uncooperative engineers can make it an unreasonable request, and have the legal right to be as uncooperative as they want to be in this case. And, they're on the same side as the CEO of Apple ethically, so it isn't career suicide.
        baddox 11y ago
        > The counter from the governmental side is "we will give your company massive fines until and unless your company complies". At which point is becomes worth it for Apple to pay an engineer to do the job. I doubt it wouldn't take much of a bonus to get someone to do it.
        Alupis 11y ago
        > > The counter from the governmental side is "we will give your company massive fines until and unless your company complies". > At which point is becomes worth it for Apple to pay an engineer to do the job. I doubt it wouldn't take much of a bonus to get someone to do it. What happens if Apple says they aren't paying these unjust fines? Theoretically, court order, law, or what-have-you, Apple can just straight refuse to participate (and hopefully other big tech companies would follow suit). Sure the gov't can make arrests, threats, seize assets -- but in the end, the gov't still don't get what they want (but they do get a ton of very, very bad PR in the process). At a point, the gov't would have to stop -- destroying the world's most valuable company, and one of America's sweetheart companies, all over this... wouldn't play out well.
  - baddox 11y ago
    I presume it would just be significant fines, or perhaps some FCC or FTC regulations that would harm Apple's business.
berkeleynerd 11y ago
Nicholas Merrill famously fought a 11 year legal battle (and finally won) the right to reveal all aspects of a National Security Letter (NSL) served to him. Almost all such letters are accompanied by a complete gag order. https://www.calyxinstitute.org/news/federal-court-invalidates-11-year-old-fbi-gag-order-national-security-letter-recipient-nicholas https://www.calyxinstitute.org/news/federal-court-invalidate... EDITED / CORRECTIONS - Thanks commenters - The battle was won by Nicholas Merrill not Ladar Levison of Lavabit fame as I originally posted.)
- uxp 11y ago
  It was Nicholas Merrill from a little ISP called Calyx Internet Access that famously challenged the NSL process. LavaBit's Lamar Levinson is assumed to be under a gag order from some request he was given by the US government, of which he declined by way of folding his company and claiming that he could not comply moving forward if he was no longer the middleman of some form of communications.
  - schoen 11y ago
    As a further correction, the Lavabit founder's name is spelled Ladar Levison. Rather than making assumptions, you can read about the specific kinds of legal process involved in the Lavabit case at https://en.wikipedia.org/wiki/Lavabit https://en.wikipedia.org/wiki/Lavabit You can also read the Fourth Circuit decision on his appeal, among other things.
ipsin 11y ago
https://en.wikipedia.org/wiki/Administrative_subpoena https://en.wikipedia.org/wiki/Administrative_subpoena

tjohns 11y ago

Not only do NSLs not require approval from a judge, they also include a very intimidating gag order that prevents you from discussing the issue with anyone else (including even your own family). One of the big problems with NSLs is that you can't let anyone know that you've received or acted on one, so there's very little accountability. Hence the recent trend of some companies including a warrant canary on their websites, under the assumption that a NSL can't prevent you from _not_ saying something (e.g. deleting the canary).

dak1 11y ago
I think deleting something would be considered an active action. The trick with a canary is that you're choosing not to do something, so it can't compel you to act (as compared to, for example, telling you you can't delete the canary). So for it to work, you need to issue a statement every month that says you haven't been issued a NSL, and then simply not issue a statement the month you finally were issued a NSL. That would then require the government to actually compel speech (compel you to post a new notice saying you didn't receive a canary). Of course, the above should make it blatantly obvious how absolutely absurd the blanket gag order on NSLs are.
- dak1 11y ago
  Interestingly, if you accept that code can be copyrighted, and that only things that are expressions (speech) are eligible for copyright ("A copyrighted work must be an original work of authorship which is fixed in a tangible medium of expression"), then code == speech. So, by compelling Apple to code something that doesn't exist, the government would indeed actually be compelling speech.
  - dragonwriter 11y ago
    Court processes involve compelled speech all the time. Heck, compelling witness testimony, which is one of the most well-established parts of the court process, is nothing but compelling speech. So, I'm not sure what the value is of a clever argument that compelling Apple to comply with the order here is "compelling speech" is supposed to be (likewise, the upthread one about NSL canaries.)