8 ms·

Justice Department moves to end routine gag orders on tech firms

375 points by forapurpose 9y ago

forapurpose 9y ago
And I'll append an analysis which says that much more is needed because the new rule applies only to the Justice Dept, and the orders come from many places, including state and local governments: https://www.justsecurity.org/46875/modernizing-ecpa-congressional-action-dojs-gag-order-guidelines/ https://www.justsecurity.org/46875/modernizing-ecpa-congress... I'll add that a rule changed by the Justice Dept can be changed again. A law may be needed.
- itchyjunk 9y ago
  Both good points. If I may ask, why is MS dropping the case if they had good points to make something come of it?
  - deleted 9y ago
    [deleted]
  - GCU-Empiricist 9y ago
    Likely because the government is a large enterprise customer who needs to not have a judicial precedent set. I.E. This seems a lawfare move to step back general gag use, so that they can step forward again in specific gag use, rather than risk losing and finding future gags severely restricted. Microsoft is being polite because sometimes it might be reasonable for government to gag a subpoena, without it being a national security issue.
  - bskap 9y ago
    Microsoft sued the Justice Department. I'm not a lawyer, but since the Justice Department is no longer doing this thing, they may not have any standing for the lawsuit. I don't think they can force the lawsuit through to get a decision since they're no longer being harmed by it. It wouldn't be the first time someone who thought they might lose backed down to avoid setting a precedent. Police departments did it with cases where people challenged the use of Stingrays, for example.
- lomnakkus 9y ago
  As a non-USian, is the Homeland Security (Newspeak!) under the Justice Dept, at least?
  - nerdponx 9y ago
    No, it's an independent, top-level cabinet position. The departments of Homeland Security and Justice are "peers", if you will. I'm not sure it's entirely newspeak. If you look at the list of departments that were gathered together to form DHS [0], it does make some sense to have them all in the same organization. [0]: https://en.wikipedia.org/wiki/United_States_Department_of_Homeland_Security#History https://en.wikipedia.org/wiki/United_States_Department_of_Ho...
    - forapurpose 9y ago
      The word "homeland" is propaganda-ish. Other department names are simply descriptive, such as Treasury, State, Interior, Veterans Affairs, etc. If named normally, it would have been something like 'Domestic Security'..
      - arca_vorago 9y ago
        Personally I think the DoD should go back to it's original name, the department of war, and then homeland should take dod.
        deleted 9y ago
        [deleted]
        jrockway 9y ago
        If we really want some Newspeak, how about the "Department of Peace"?
        gozur88 9y ago
        That's what Dennis Kucinich wanted to call it, though not so much in a newspeak way as just to reinforce a pacifist foreign policy.
baybal2 9y ago
Yes, that district attorney will no longer have free hand creeping on Osama Ben Laden's web diaries and his sextings On the downside, terrorists will now freely weave their evil conspiracies in web diaries of teenage girls. Nothing is more detrimental to American National Security® than privacy of your drunk selfies, teenage girls' web diaries, and your creep tweets to your ex-boss P.S. pfff, I'm just sarcastic. Don't you get that i am not saying this for real?
- sctb 9y ago
  Could you please just stop breaking the guidelines? It's easy: if you're about to post something like this, don't. We've asked you many times before, and we ban accounts that refuse. https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html
  - baybal2 9y ago
    Dear SCTB, I clearly see that generic flamebaiting is forbidden, yet how is simply humor (even if being abrasive to part of US population who can read in between the lines and downvoted to abyss) counted towards it. Somebody clearly didn't like my comment, it got flagged, it got downvoted, but I feel not that this amounts rule violation. I always sought of HN as being better at treating unpopular, yet correct comments than other places
nerdponx 9y ago
This is good news overall. Glad to see some sanity coming out of the White House. I'm a little suspicious though. Why is Microsoft pushing so hard for this? What's in it for them?
- paxy 9y ago
  Microsoft has been battling the government over this and more for a long time. They have another major ongoing case over US government rights to demand customer data stored overseas. > What's in it for them The very lucrative European business market. If they can't be assured that their data is safe with Microsoft (and out of US govt hands), they will naturally move to using non-US based competitors.
  - sandworm101 9y ago
    Not naturally. EU privacy law will force them.
    - karmelapple 9y ago
      Even without EU privacy laws, a variety of laws in the USA have made various organizations outside the US wary about storing data in the US.
    - deleted 9y ago
      [deleted]
  - the8472 9y ago
    At $employer we process lots of PII on behalf of customers which is covered by additional domain-specific privacy laws on top of the general ones. Compliance is important and because we occasionally have to handle production data inhouse this has far-reaching consequences. It's not just that we can't use US-based cloud services for production. We can't use them for anything. Anything like slack, gsuite, jira cloud are not suitable for handling the sensitive data. Even something as simple as using recaptcha required vetting by our data protection officer.
solotronics 9y ago
do these gag orders apply to foreign based subsidiaries of a company based in the US?
semperdark 9y ago
For the record, this does not include National Security Letters.
- gboudrias 9y ago
  I assume this is a step towards that. As a Canadian, I know for a fact we (as in our tech industry) have a lot of business that would go to the US by default if these letters stopped existing. Well, maybe not now, the damage is done. But it would've, and in time US tech companies' reputation will be repaired. As a foreigner, it doesn't seem like the repair process has started yet. Hope I'm wrong.
baybal2 9y ago
I'll try to say things in a less sarcastic form. Americans, the argumentation for interception correspondence and private life perlustration provided by your 3 letter services and whole executive branch in general is laughable. They talk about busting terror cells, then proceed to dig your personal data on facebook or somebody's very very private Snapchat conversations, as if Osama Bin Laden, with his alleged $ billions in the bank, has nothing else to do than writing a web diary with all his plans exposed in plain sight or sexting with his groupies. The prime interest of this STASI style mass perlustration are not the so called "terrorists," but your and other citizens private life, and it is laughable for anybody to claim that this is anything other than that. And it looks even more laughable when somebody goes beyond not only taking that as given, but even tries to insinuate a posh opposition and say to US government "you are not doing the mass domestic espionage in constitutionally correct way, you should do mass surveillance differently" as if mass surveillance can be ever become legal in USA. Microsoft probably sees and routinely fulfills thousands of data perlustration requests a months, but rather than saying "What you do is fucking illegal, you will get that data only over my dead body," they say "Dear uncle Sam, we have a lot of dirt on you, and in particular the request no. 9877989 with very weak legal argumentation in it, play nicer with us in the future"
- PhasmaFelis 9y ago
  > Americans, the argumentation for interception correspondence and private life perlustration provided by your 3 letter services and whole executive branch in general is laughable. I doubt anyone on this site disagrees with you. We're not the ones you need to yell at.
- visarga 9y ago
  I hate to have to say it, but besides the 3-letter agencies, all countries and many global companies are spying. Even if the US agencies fixed their behavior, the is still the problem of the rest of the world.
  - gozur88 9y ago
    I laughed my ass off when, after all the complaining the Germans did about the NSA collecting their PM's phone conversations, it turned out they did the very same thing to Hillary Clinton when she was Secretary of State travelling in Europe.
ComodoHacker 9y ago
That's the outcome Microsoft has deserved my sincere respect for.
danjoc 9y ago
I'm glad to see the Trump administration rolling back these Obama era privacy violations.
- wbhart 9y ago
  I think that the provisions of 18 U.S.C. § 3123(d)(2) were introduced by Bush as part of the Patriot act, after September 11, not by Obama. One might argue that Obama abused them, of course.
  - pc86 9y ago
    Certainly there are some unjust laws for which it is just as bad to leave them in place as it is to have enacted them in the first place. These may not rise quite to that level, but just because he did not sign them himself doesn't absolve Obama.
  - danjoc 9y ago
    It's pretty easy to argue abuse when the Obama administration was wiretapping the opposition party just before a presidential election, http://www.cnn.com/2017/09/18/politics/paul-manafort-government-wiretapped-fisa-russians/index.html http://www.cnn.com/2017/09/18/politics/paul-manafort-governm... In March the Obama administration denied it for months. Now it is a matter of fact.
    - ouid 9y ago
      Criminal investigations are non-partisan. You don't get structural immunity from espionage charges just because you are "of another political party" than the current president. The wiretap was authorized by a judge. The Whitehouse also never denied wiretapping Manafort, but if they HAD done so, it would have been proper. Wiretaps are secret, by their nature. This also occurred after Manafort had been removed from his position on the Trump campaign.
      - gozur88 9y ago
        >Criminal investigations are non-partisan. Sniff. I remember when I was young and idealistic. The Obama administration was clever enough to investigate people around Trump such that they would have pretty much everything he said in the can. What was highly irregular, and arguably illegal, was Susan Rice at the NSC authorizing the "unmasking" of the people involved as well as a wide intergovernmental distribution. She really had no business doing that, and it effectively leaked every aspect of the investigation.
deleted 9y ago
[deleted]

375 points by forapurpose 9y ago

And I'll append an analysis which says that much more is needed because the new rule applies only to the Justice Dept, and the orders come from many places, including state and local governments: https://www.justsecurity.org/46875/modernizing-ecpa-congressional-action-dojs-gag-order-guidelines/ https://www.justsecurity.org/46875/modernizing-ecpa-congress... I'll add that a rule changed by the Justice Dept can be changed again. A law may be needed.

itchyjunk 9y ago
Both good points. If I may ask, why is MS dropping the case if they had good points to make something come of it?
- deleted 9y ago
  [deleted]
- GCU-Empiricist 9y ago
  Likely because the government is a large enterprise customer who needs to not have a judicial precedent set. I.E. This seems a lawfare move to step back general gag use, so that they can step forward again in specific gag use, rather than risk losing and finding future gags severely restricted. Microsoft is being polite because sometimes it might be reasonable for government to gag a subpoena, without it being a national security issue.
- bskap 9y ago
  Microsoft sued the Justice Department. I'm not a lawyer, but since the Justice Department is no longer doing this thing, they may not have any standing for the lawsuit. I don't think they can force the lawsuit through to get a decision since they're no longer being harmed by it. It wouldn't be the first time someone who thought they might lose backed down to avoid setting a precedent. Police departments did it with cases where people challenged the use of Stingrays, for example.
lomnakkus 9y ago
As a non-USian, is the Homeland Security (Newspeak!) under the Justice Dept, at least?
- nerdponx 9y ago
  No, it's an independent, top-level cabinet position. The departments of Homeland Security and Justice are "peers", if you will. I'm not sure it's entirely newspeak. If you look at the list of departments that were gathered together to form DHS [0], it does make some sense to have them all in the same organization. [0]: https://en.wikipedia.org/wiki/United_States_Department_of_Homeland_Security#History https://en.wikipedia.org/wiki/United_States_Department_of_Ho...
  - forapurpose 9y ago
    The word "homeland" is propaganda-ish. Other department names are simply descriptive, such as Treasury, State, Interior, Veterans Affairs, etc. If named normally, it would have been something like 'Domestic Security'..
    - arca_vorago 9y ago
      Personally I think the DoD should go back to it's original name, the department of war, and then homeland should take dod.
      - deleted 9y ago
        [deleted]
      - jrockway 9y ago
        If we really want some Newspeak, how about the "Department of Peace"?
        gozur88 9y ago
        That's what Dennis Kucinich wanted to call it, though not so much in a newspeak way as just to reinforce a pacifist foreign policy.

baybal2 9y ago

Yes, that district attorney will no longer have free hand creeping on Osama Ben Laden's web diaries and his sextings On the downside, terrorists will now freely weave their evil conspiracies in web diaries of teenage girls. Nothing is more detrimental to American National Security® than privacy of your drunk selfies, teenage girls' web diaries, and your creep tweets to your ex-boss P.S. pfff, I'm just sarcastic. Don't you get that i am not saying this for real?

sctb 9y ago
Could you please just stop breaking the guidelines? It's easy: if you're about to post something like this, don't. We've asked you many times before, and we ban accounts that refuse. https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html
- baybal2 9y ago
  Dear SCTB, I clearly see that generic flamebaiting is forbidden, yet how is simply humor (even if being abrasive to part of US population who can read in between the lines and downvoted to abyss) counted towards it. Somebody clearly didn't like my comment, it got flagged, it got downvoted, but I feel not that this amounts rule violation. I always sought of HN as being better at treating unpopular, yet correct comments than other places

nerdponx 9y ago

This is good news overall. Glad to see some sanity coming out of the White House. I'm a little suspicious though. Why is Microsoft pushing so hard for this? What's in it for them?

paxy 9y ago
Microsoft has been battling the government over this and more for a long time. They have another major ongoing case over US government rights to demand customer data stored overseas. > What's in it for them The very lucrative European business market. If they can't be assured that their data is safe with Microsoft (and out of US govt hands), they will naturally move to using non-US based competitors.
- sandworm101 9y ago
  Not naturally. EU privacy law will force them.
  - karmelapple 9y ago
    Even without EU privacy laws, a variety of laws in the USA have made various organizations outside the US wary about storing data in the US.
  - deleted 9y ago
    [deleted]
- the8472 9y ago
  At $employer we process lots of PII on behalf of customers which is covered by additional domain-specific privacy laws on top of the general ones. Compliance is important and because we occasionally have to handle production data inhouse this has far-reaching consequences. It's not just that we can't use US-based cloud services for production. We can't use them for anything. Anything like slack, gsuite, jira cloud are not suitable for handling the sensitive data. Even something as simple as using recaptcha required vetting by our data protection officer.

solotronics 9y ago

do these gag orders apply to foreign based subsidiaries of a company based in the US?

semperdark 9y ago

For the record, this does not include National Security Letters.

gboudrias 9y ago
I assume this is a step towards that. As a Canadian, I know for a fact we (as in our tech industry) have a lot of business that would go to the US by default if these letters stopped existing. Well, maybe not now, the damage is done. But it would've, and in time US tech companies' reputation will be repaired. As a foreigner, it doesn't seem like the repair process has started yet. Hope I'm wrong.

baybal2 9y ago

I'll try to say things in a less sarcastic form. Americans, the argumentation for interception correspondence and private life perlustration provided by your 3 letter services and whole executive branch in general is laughable. They talk about busting terror cells, then proceed to dig your personal data on facebook or somebody's very very private Snapchat conversations, as if Osama Bin Laden, with his alleged $ billions in the bank, has nothing else to do than writing a web diary with all his plans exposed in plain sight or sexting with his groupies. The prime interest of this STASI style mass perlustration are not the so called "terrorists," but your and other citizens private life, and it is laughable for anybody to claim that this is anything other than that. And it looks even more laughable when somebody goes beyond not only taking that as given, but even tries to insinuate a posh opposition and say to US government "you are not doing the mass domestic espionage in constitutionally correct way, you should do mass surveillance differently" as if mass surveillance can be ever become legal in USA. Microsoft probably sees and routinely fulfills thousands of data perlustration requests a months, but rather than saying "What you do is fucking illegal, you will get that data only over my dead body," they say "Dear uncle Sam, we have a lot of dirt on you, and in particular the request no. 9877989 with very weak legal argumentation in it, play nicer with us in the future"

PhasmaFelis 9y ago
> Americans, the argumentation for interception correspondence and private life perlustration provided by your 3 letter services and whole executive branch in general is laughable. I doubt anyone on this site disagrees with you. We're not the ones you need to yell at.
visarga 9y ago
I hate to have to say it, but besides the 3-letter agencies, all countries and many global companies are spying. Even if the US agencies fixed their behavior, the is still the problem of the rest of the world.
- gozur88 9y ago
  I laughed my ass off when, after all the complaining the Germans did about the NSA collecting their PM's phone conversations, it turned out they did the very same thing to Hillary Clinton when she was Secretary of State travelling in Europe.

ComodoHacker 9y ago

That's the outcome Microsoft has deserved my sincere respect for.

danjoc 9y ago

I'm glad to see the Trump administration rolling back these Obama era privacy violations.

wbhart 9y ago
I think that the provisions of 18 U.S.C. § 3123(d)(2) were introduced by Bush as part of the Patriot act, after September 11, not by Obama. One might argue that Obama abused them, of course.
- pc86 9y ago
  Certainly there are some unjust laws for which it is just as bad to leave them in place as it is to have enacted them in the first place. These may not rise quite to that level, but just because he did not sign them himself doesn't absolve Obama.
- danjoc 9y ago
  It's pretty easy to argue abuse when the Obama administration was wiretapping the opposition party just before a presidential election, http://www.cnn.com/2017/09/18/politics/paul-manafort-government-wiretapped-fisa-russians/index.html http://www.cnn.com/2017/09/18/politics/paul-manafort-governm... In March the Obama administration denied it for months. Now it is a matter of fact.
  - ouid 9y ago
    Criminal investigations are non-partisan. You don't get structural immunity from espionage charges just because you are "of another political party" than the current president. The wiretap was authorized by a judge. The Whitehouse also never denied wiretapping Manafort, but if they HAD done so, it would have been proper. Wiretaps are secret, by their nature. This also occurred after Manafort had been removed from his position on the Trump campaign.
    - gozur88 9y ago
      >Criminal investigations are non-partisan. Sniff. I remember when I was young and idealistic. The Obama administration was clever enough to investigate people around Trump such that they would have pretty much everything he said in the can. What was highly irregular, and arguably illegal, was Susan Rice at the NSC authorizing the "unmasking" of the people involved as well as a wide intergovernmental distribution. She really had no business doing that, and it effectively leaked every aspect of the investigation.

deleted 9y ago

[deleted]