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The FBI’s decision to ask companies for everything and let them figure out what they’re required to turn over has had the effect of potentially putting smaller

by bgentry 10y ago

The FBI’s decision to ask companies for everything and let them figure out what they’re required to turn over has had the effect of potentially putting smaller companies with fewer resources at a disadvantage, say national security attorneys. Without expensive legal representation and a familiarity with the law, companies might turn over more content than is necessary. You'd think the FBI wouldn't be able to just demand all kinds of stuff they have no legal right to. It's sad that the current state of our legal and political systems allows this sort of tactic to be effective and go unpunished.

iamdave 10y ago
You'd think the FBI wouldn't be able to just demand all kinds of stuff they have no legal right to. Paying some respect to established history for a moment, I-personally speaking-am not shocked at all. This sort of clandestine activity is how the FBI was born.
- bgentry 10y ago
  Yeah, I realize they have a very long history of this sort of behavior (pioneered by J. Edgar Hoover).
  - iamdave 10y ago
    I suppose what I was trying to imply was that the FBI was born of these tactics, emboldened by Hooover, condoned by the courts until they-the bureau-grew to such a size that (combined with McCarthyist politicking and language waged over nebulous concepts like "terrorism" and "drugs") that this is just a par 3 course for them. It doesn't make these things right of course, but I can't feign apoplectic over it either. You should expect better, but those expectations should be tempered just a bit. I don't think any amount of coverage or outrage is going to make a dent in this problem as long as the system the FBI operates in refuses to keep itself in check.
crazy1van 10y ago
Seems like a case of imbalanced consequences. If a company doesn't properly comply with a request, the company and some of its workers could quite possibly face criminal consequences. If the FBI's request is eventually found out to be invalid, very little of consequence will happen to the Bureau and even less to the employees. Unfortunately, this imbalance isn't unique to the FBI or even law enforcement. Even most government regulatory agencies seem to enjoy a presumption of acting in good faith which gets the agency, and even more crucially the employees, out of trouble when they overstep.
rhizome 10y ago
Leading people to forfeit their rights, to motivate them to offer more information than they are legally required to provide, is a long-standing law enforcement strategy. https://en.wikipedia.org/wiki/Reid_technique https://en.wikipedia.org/wiki/Reid_technique
nostrademons 10y ago
Liberal democracies usually operate under the principle that you can ask anything you want of someone, and it's up to them to say "no" if they find it disagreeable. The law is then there to step in when there is a dispute and say which party is right. Even the Bill of Rights depends upon people specifically asserting their rights; if a person voluntarily chooses to incriminate themselves, they've still incriminated themselves, the 5th amendment just states that if the government asks them to bear witness against themself and they refuse to speak, they have done nothing wrong. While this can lead to unfortunate power imbalances and information asymmetries, it's hard to see how the legal system could operate otherwise. If people were forbidden from asking - who would do the forbidding? What if this is used to prevent contracts that would legitimately be in the best interest of both parties? What if it were used to prevent emerging power centers from challenging the power of the organization that can determine what's legal to ask? How would you even know that such a question has occurred, if one party says "Don't talk about this"? Probably the best we can hope for is for Congress to pass a law specifically enumerating what electronic records the FBI may request. That seems to be what this article is calling for - consciousness-raising, and public debate. There's plenty of precedent for this, eg. the Miranda rights came from a court case where it was determined that police could not simply assume that a suspect was aware of their constitutional rights, and had to explicitly have them enumerated. But the fact that this needs to be handled on a case-by-case basis is a feature of the legal system, not a bug.
- ianstormtaylor 10y ago
  Great level-headed response! It sounds like there could be an interesting side project for someone—a mini-site that explains each of the things the FBI is allowed to request via each type of request. Or even sponsored by the EFF.
- schoen 10y ago
  Your reply might be inadvertently equivocating on meanings of "request", although I can see an interpretation where you're right. Bear in mind that in many government data requests, the government is really demanding or instructing someone to provide the data, in a manner calculated to make the recipient think that complying is not optional and that refusing to comply would be punished. In other contexts, the courts have at least created suppression remedies when law enforcement agents order people to do things that aren't really legally required. And if you as a private party make an improper legal demand of someone, there could be a legal remedy against you just because of that (although maybe that falls under "[t]he law is then there to step in when there is a dispute"). I think there are also cases where people have maintained civil rights challenges against law enforcement officers who gave improper orders (for example, improperly ordering someone to stop doing something -- like photography!). I would think the legal system could pay attention in a broader range of situations to the difference between law enforcement requesting people consent to something and making people believe that they have no choice.
rayiner 10y ago
> You'd think the FBI wouldn't be able to just demand all kinds of stuff they have no legal right to. The police are entitled to ask for cooperation from people to help with investigations. If there is a crime in my neighborhood, should police be banned from asking me about what I saw just because they can't compel me to do so? And if you set the boundary for what police "may ask for" == to what police may "compel you to provide" don't you think that'll lead to undesirable growth in the latter?
- brokenmachine 10y ago
  IMO they should be allowed to ask for whatever they want, but they must also clarify if it is a lawful order or a request. Then it is up to the requestee to decide whether or not to comply. That is the whole point of living in a democracy and not a police state, correct? Also that is the actual law. Tricking people into doing more than required by law is fraud in my opinion.
- imh 10y ago
  How about a nice compromise where if the person asks whether they have to comply to a request, the government has to respond truthfully? As far as I know, there are no such requirements.
- simonh 10y ago
  What they are doing is the equivalent of demanding that people help with the investigation and threatening them with legal consequences if they don't. The fact is that even if a police officer doesn't have the right to arrest you for refusing to comply, they can absolutely threaten to do so and as a matter of fact if they choose to cuff and detain you that is what will happen regardless of your legal rights regarding any information you might have.
syngrog66 10y ago
It is this that is a huge part of how I react negatively to the recent issue where Facebook has suddenly decided to push heavily on me to install a Facebook Messenger Android app on my phone. You know: the functionality that already worked, that was already a cleanly solved problem in their mobile web app. But yet with a native Android app the store says they "need" to access my camera, my microphone, my GPS, all my contacts, all my photos, videos, my file system, my phone, my wifi interface, etc etc. Because... you know. Just trust us. In order for me to type in a short ASCII text message and hit ENTER and have that delivered to another person. A problem solved with much less code, and much less permissions, both in SMS, email, Usenet, etc, for the prior 30+ years. I glance over to Shirer's Rise & Fall on my bookshelf, for a second or two, before falling asleep tonight. "Trust us." - 1932 Germany/Europe is calling

by bgentry 10y ago

iamdave 10y ago

You'd think the FBI wouldn't be able to just demand all kinds of stuff they have no legal right to. Paying some respect to established history for a moment, I-personally speaking-am not shocked at all. This sort of clandestine activity is how the FBI was born.

bgentry 10y ago
Yeah, I realize they have a very long history of this sort of behavior (pioneered by J. Edgar Hoover).
- iamdave 10y ago
  I suppose what I was trying to imply was that the FBI was born of these tactics, emboldened by Hooover, condoned by the courts until they-the bureau-grew to such a size that (combined with McCarthyist politicking and language waged over nebulous concepts like "terrorism" and "drugs") that this is just a par 3 course for them. It doesn't make these things right of course, but I can't feign apoplectic over it either. You should expect better, but those expectations should be tempered just a bit. I don't think any amount of coverage or outrage is going to make a dent in this problem as long as the system the FBI operates in refuses to keep itself in check.

crazy1van 10y ago

Seems like a case of imbalanced consequences. If a company doesn't properly comply with a request, the company and some of its workers could quite possibly face criminal consequences. If the FBI's request is eventually found out to be invalid, very little of consequence will happen to the Bureau and even less to the employees. Unfortunately, this imbalance isn't unique to the FBI or even law enforcement. Even most government regulatory agencies seem to enjoy a presumption of acting in good faith which gets the agency, and even more crucially the employees, out of trouble when they overstep.

rhizome 10y ago

Leading people to forfeit their rights, to motivate them to offer more information than they are legally required to provide, is a long-standing law enforcement strategy. https://en.wikipedia.org/wiki/Reid_technique https://en.wikipedia.org/wiki/Reid_technique

nostrademons 10y ago

Liberal democracies usually operate under the principle that you can ask anything you want of someone, and it's up to them to say "no" if they find it disagreeable. The law is then there to step in when there is a dispute and say which party is right. Even the Bill of Rights depends upon people specifically asserting their rights; if a person voluntarily chooses to incriminate themselves, they've still incriminated themselves, the 5th amendment just states that if the government asks them to bear witness against themself and they refuse to speak, they have done nothing wrong. While this can lead to unfortunate power imbalances and information asymmetries, it's hard to see how the legal system could operate otherwise. If people were forbidden from asking - who would do the forbidding? What if this is used to prevent contracts that would legitimately be in the best interest of both parties? What if it were used to prevent emerging power centers from challenging the power of the organization that can determine what's legal to ask? How would you even know that such a question has occurred, if one party says "Don't talk about this"? Probably the best we can hope for is for Congress to pass a law specifically enumerating what electronic records the FBI may request. That seems to be what this article is calling for - consciousness-raising, and public debate. There's plenty of precedent for this, eg. the Miranda rights came from a court case where it was determined that police could not simply assume that a suspect was aware of their constitutional rights, and had to explicitly have them enumerated. But the fact that this needs to be handled on a case-by-case basis is a feature of the legal system, not a bug.

ianstormtaylor 10y ago
Great level-headed response! It sounds like there could be an interesting side project for someone—a mini-site that explains each of the things the FBI is allowed to request via each type of request. Or even sponsored by the EFF.
schoen 10y ago
Your reply might be inadvertently equivocating on meanings of "request", although I can see an interpretation where you're right. Bear in mind that in many government data requests, the government is really demanding or instructing someone to provide the data, in a manner calculated to make the recipient think that complying is not optional and that refusing to comply would be punished. In other contexts, the courts have at least created suppression remedies when law enforcement agents order people to do things that aren't really legally required. And if you as a private party make an improper legal demand of someone, there could be a legal remedy against you just because of that (although maybe that falls under "[t]he law is then there to step in when there is a dispute"). I think there are also cases where people have maintained civil rights challenges against law enforcement officers who gave improper orders (for example, improperly ordering someone to stop doing something -- like photography!). I would think the legal system could pay attention in a broader range of situations to the difference between law enforcement requesting people consent to something and making people believe that they have no choice.

rayiner 10y ago

> You'd think the FBI wouldn't be able to just demand all kinds of stuff they have no legal right to. The police are entitled to ask for cooperation from people to help with investigations. If there is a crime in my neighborhood, should police be banned from asking me about what I saw just because they can't compel me to do so? And if you set the boundary for what police "may ask for" == to what police may "compel you to provide" don't you think that'll lead to undesirable growth in the latter?

brokenmachine 10y ago
IMO they should be allowed to ask for whatever they want, but they must also clarify if it is a lawful order or a request. Then it is up to the requestee to decide whether or not to comply. That is the whole point of living in a democracy and not a police state, correct? Also that is the actual law. Tricking people into doing more than required by law is fraud in my opinion.
imh 10y ago
How about a nice compromise where if the person asks whether they have to comply to a request, the government has to respond truthfully? As far as I know, there are no such requirements.
simonh 10y ago
What they are doing is the equivalent of demanding that people help with the investigation and threatening them with legal consequences if they don't. The fact is that even if a police officer doesn't have the right to arrest you for refusing to comply, they can absolutely threaten to do so and as a matter of fact if they choose to cuff and detain you that is what will happen regardless of your legal rights regarding any information you might have.

syngrog66 10y ago

It is this that is a huge part of how I react negatively to the recent issue where Facebook has suddenly decided to push heavily on me to install a Facebook Messenger Android app on my phone. You know: the functionality that already worked, that was already a cleanly solved problem in their mobile web app. But yet with a native Android app the store says they "need" to access my camera, my microphone, my GPS, all my contacts, all my photos, videos, my file system, my phone, my wifi interface, etc etc. Because... you know. Just trust us. In order for me to type in a short ASCII text message and hit ENTER and have that delivered to another person. A problem solved with much less code, and much less permissions, both in SMS, email, Usenet, etc, for the prior 30+ years. I glance over to Shirer's Rise & Fall on my bookshelf, for a second or two, before falling asleep tonight. "Trust us." - 1932 Germany/Europe is calling