3 ms·

Also committing to a "fuck NSLs, we'll just go public and take it all the way legally" stance upfront might deter NSLs in the first place.

by rdl 10y ago

dmix 10y ago
The fact no-one has done this means the consequences must be absolutely devastating. Probably jail time for executives and potential financial collapse. Probably the only time an executive would go to jail for breaking the law in the US...
- jsmthrowaway 10y ago
  I remain unclear on the consequences. I don't think they're tested. 18 USC 2709(c) is what the government cites when they invoke nondisclosure. You win a prize if you find the consequences for violating that statute. Also, NSLs can be upgraded to court orders if the recipient is noncompliant. 18 USC 3511 discusses that: > the Attorney General may invoke the aid of any district court of the United States within the jurisdiction in which the investigation is carried on or the person or entity resides, carries on business, or may be found, to compel compliance with the request. The court may issue an order requiring the person or entity to comply with the request. Any failure to obey the order of the court may be punished by the court as contempt thereof. So they can upgrade to a court order and then hold you in contempt if you do not fulfill the terms of the court order. I am not clear if that includes the nondisclosure term. This is the closest I've ever come to identifying "what would legally happen if someone published an NSL?" Honestly, and I'm not extremely comfortable saying this and please do not get ideas, after a lot of research I don't think there is a federal punishment defined in legislation for doing it. Usually laws have a punishment immediately after them. As in, section A is what's illegal, section B is how to punish violations of section A. 18 USC 2709 and 18 USC 3511 don't have that, so I honestly have no idea what would happen, and I half wonder if the federal government doesn't either. (IANAL, etc)
  - generj 10y ago
    It's entirely possible a highly-paid legal counsel like Apple or Google has finds out the emperor is wearing no clothes and NSL's are unenforceable. The question is: who is willing to find out? There's all kinds of nasty stuff the gov can do to you personally for trying to fight an NSL - loss of gov contracts, detention at custom and border control, no-fly list, etc.
- dbg31415 10y ago
  People with success tend to be afraid of losing it. They know it's mostly all luck and lightening probably won't strike twice.
declan 10y ago
NSLs are likely not the case here with Yahoo (and in fact are not the most significant privacy threat, IMHO). An NSL is a demand from the FBI, not a court order. NSLs also have unique First Amendment vulnerabilities that would help a company choosing to publicize receiving one. A FISA court order, which can force you to do much more than NSLs, is the more significant operational threat to Internet companies. These court orders typically have "do not disclose" provisions. Willfully violating that court order will almost certainly result in contempt charges.
- malandrew 10y ago
  What if you had all your mail scanned or OCRed to remove certain phrases such as "do not disclose" and then the resulting message was delivered to you. The key here being that you will never have any knowledge of such requirements and therefore cannot act with intent to violate such requirements. Basically, can you eliminate mens rea as an element of the crime of contempt? The burden is on the deliverer to make sure you receive, open, read and acknowledge the entire message instead of a partial message.
  - dragonwriter 10y ago
    > What if you had all your mail scanned or OCRed to remove certain phrases such as "do not disclose" and then the resulting message was delivered to you. Willful blindness is (as one might expect) evidence of willfulness of an act, rather than a way of displaying an absence of willfulness.

Also committing to a "fuck NSLs, we'll just go public and take it all the way legally" stance upfront might deter NSLs in the first place.

by rdl 10y ago

Also committing to a "fuck NSLs, we'll just go public and take it all the way legally" stance upfront might deter NSLs in the first place.

dmix 10y ago

The fact no-one has done this means the consequences must be absolutely devastating. Probably jail time for executives and potential financial collapse. Probably the only time an executive would go to jail for breaking the law in the US...

jsmthrowaway 10y ago
I remain unclear on the consequences. I don't think they're tested. 18 USC 2709(c) is what the government cites when they invoke nondisclosure. You win a prize if you find the consequences for violating that statute. Also, NSLs can be upgraded to court orders if the recipient is noncompliant. 18 USC 3511 discusses that: > the Attorney General may invoke the aid of any district court of the United States within the jurisdiction in which the investigation is carried on or the person or entity resides, carries on business, or may be found, to compel compliance with the request. The court may issue an order requiring the person or entity to comply with the request. Any failure to obey the order of the court may be punished by the court as contempt thereof. So they can upgrade to a court order and then hold you in contempt if you do not fulfill the terms of the court order. I am not clear if that includes the nondisclosure term. This is the closest I've ever come to identifying "what would legally happen if someone published an NSL?" Honestly, and I'm not extremely comfortable saying this and please do not get ideas, after a lot of research I don't think there is a federal punishment defined in legislation for doing it. Usually laws have a punishment immediately after them. As in, section A is what's illegal, section B is how to punish violations of section A. 18 USC 2709 and 18 USC 3511 don't have that, so I honestly have no idea what would happen, and I half wonder if the federal government doesn't either. (IANAL, etc)
- generj 10y ago
  It's entirely possible a highly-paid legal counsel like Apple or Google has finds out the emperor is wearing no clothes and NSL's are unenforceable. The question is: who is willing to find out? There's all kinds of nasty stuff the gov can do to you personally for trying to fight an NSL - loss of gov contracts, detention at custom and border control, no-fly list, etc.
dbg31415 10y ago
People with success tend to be afraid of losing it. They know it's mostly all luck and lightening probably won't strike twice.

declan 10y ago

NSLs are likely not the case here with Yahoo (and in fact are not the most significant privacy threat, IMHO). An NSL is a demand from the FBI, not a court order. NSLs also have unique First Amendment vulnerabilities that would help a company choosing to publicize receiving one. A FISA court order, which can force you to do much more than NSLs, is the more significant operational threat to Internet companies. These court orders typically have "do not disclose" provisions. Willfully violating that court order will almost certainly result in contempt charges.

malandrew 10y ago
What if you had all your mail scanned or OCRed to remove certain phrases such as "do not disclose" and then the resulting message was delivered to you. The key here being that you will never have any knowledge of such requirements and therefore cannot act with intent to violate such requirements. Basically, can you eliminate mens rea as an element of the crime of contempt? The burden is on the deliverer to make sure you receive, open, read and acknowledge the entire message instead of a partial message.
- dragonwriter 10y ago
  > What if you had all your mail scanned or OCRed to remove certain phrases such as "do not disclose" and then the resulting message was delivered to you. Willful blindness is (as one might expect) evidence of willfulness of an act, rather than a way of displaying an absence of willfulness.