8 ms·

Opinion: The secret gag orders must stop

204 points by 1cvmask 5y ago

rektide 5y ago
Almost a courtesy that there was such an egregious absurd abuse of power. Can hardly ask for a more textbook example of how surveillance capitalism and authoritarian governments collide.
tomrod 5y ago
Secret gag orders are a dangerous game. It only requires one curmudgeon to bring it down. Some people legitimately don't care about future impact.
jrockway 5y ago
Good points. Secrecy was once used so that people wouldn't destroy the evidence the warrant sought. But now it's easy to tell the third party to retain the evidence; even if you delete it, they can still keep a copy. So there is no reason not to tell the target; they can't change the outcome, but they can begin the counter legal process to ensure their rights are preserved. Sometimes I wonder if they want secrecy so that criminals don't know they're being investigated, and commit a crime that's easier to prosecute. If they just stop committing crimes, then there's no fancy press release saying how great the DA is or whatever.
- mlb_hn 5y ago
  An alternative of that is as Oppenheimer once said, sometimes things are secret because a man doesn't like to know what he's up to if he can avoid it
- Stratoscope 5y ago
  > If they just stop committing crimes, then there's no fancy press release saying how great the DA is or whatever. That's an interesting observation on how people respond to their incentives. If I'm a DA, my job description is probably not to reduce crime. It is to successfully prosecute crimes that have already been committed. Of course, as a thoughtful and honorable person, I will naturally want to see if I can also reduce crime, not just prosecute it. But that is not the direct incentive I'm given. As a software developer on various mid-size teams, I've often found that I don't get much of a boost in my performance reviews when I find a way to make the entire team more productive, e.g. by solving a nagging problem that is affecting everyone. Instead, I get more highly rated by just making sure I knock out all of my own Jira tickets for the current sprint, and ignore those more global problems.
  - roenxi 5y ago
    As a thoughtful and honourable person ... my guess is that there would be probably 6-12 months fighting the incentive then a process something like: * Develop a philosophy that there are bad people out there. * Greatest good strategy is to identify and incarcerate/re-educate these bad people through punishment. * Therefore preemptive crime reduction measures don't really get to the root problem - they provide cover for the bad people to operate. * Anyone talking about how all people are made up of shades of grey doesn't understand the situation and should be ignored. People providing legal support to the bad people are troublemakers. * Bad people are the ones least able to resist prosecution. This is a mystery the DA never really sits down to rationalise. That transformation isn't a new thing. Incentives and a smart mind can rationalise much harder situations.
  - eru 5y ago
    > If I'm a DA, my job description is probably not to reduce crime. It is to successfully prosecute crimes that have already been committed. Well, it gets worse. Look beyond the job description to the actual incentives people face. If you are a DA with political ambitions, you might want to prosecute some very specific things, whether they are crimes or not. See also https://en.wikipedia.org/wiki/Public_choice https://en.wikipedia.org/wiki/Public_choice (And also https://en.wikipedia.org/wiki/Parkinson%27s_law https://en.wikipedia.org/wiki/Parkinson%27s_law for empire building.)
- throwaway29834 5y ago
  > Sometimes I wonder if they want secrecy so that criminals don't know they're being investigated, and commit a crime that's easier to prosecute. This is idiotic. When I worked murder investigations that used wiretaps, we didn't want the suspect to commit another murder. We wanted to gain enough evidence to see the suspect convicted. It defeats the purpose of the wiretap if they know we're listening to them.
Aerroon 5y ago
Secret gag orders and secret courts shouldn't be a thing in countries that call themselves free. It's a violation of due process. For all I know, the worst conspiracy theories I can imagine could all be true just because secret gag orders exist. It's impossible to prove that they're not true when policy like that is acceptable. It's an affront to democracy.
- mgoetzke 5y ago
  Illegal spying should remain illegal. When a spy agency has nothing to loose anymore, does not have to tread carefully anymore to see which laws to break or sidestep there is no bound to the eventual corruption that will come with time
deleted 5y ago
[deleted]
adrr 5y ago
Interesting relevation is the NY Times and Google gag order was actively contested. The contract between NY Times and Google required that Google disclose any data requests to allow NY Times to contest them. Google actively contested the gag order because of this clause. That is going to be requirement in any service provider contract that I sign going forward.
- appleflaxen 5y ago
  outstanding point
xvector 5y ago
The 300,000 warrantless secret gag orders issued by the FBI [1] are why we should be E2EEing all the things. Really disappointed that Apple held off implementing further E2EE in iCloud at the FBI's behest [2]. A lot of very personal data is not E2EE in iCloud [3]: - Calendars - Contacts - iCloud Drive - Notes - Photos - Reminders - Voice Memos - Mail This is honestly completely unacceptable. The current 'E2EE' is basically a farce - storing this data without E2EE in the cloud creates an extremely powerful state surveillance apparatus subject to gag orders. It is irrelevant that my Memoji are E2EE when my photos, notes, files, and calendars are not. Furthermore, the E2EE implementation might not even be true E2EE: > When a user enables iCloud Keychain for the first time, the device establishes a circle of trust and creates a syncing identity for itself. > When the user turns on iCloud Keychain on another device, iCloud Keychain notices that the user has a previously established syncing circle in iCloud that it isn’t a member of. The device creates its syncing identity key pair, then creates an application ticket to request membership in the circle. [4] It follows that Apple or a malicious actor can add an invisible device to the initial keyring server-side - a virtual 'zeroth device' - and 'approve' the user's very first device. It would receive everything added to iCloud Keychain. It isn't stated if the iCloud Devices list in Settings is a cryptographically verified list of all devices. Until Apple verifies that this is the case, we cannot reasonably call iCloud Keychain E2EE. [1]: https://www.eff.org/issues/national-security-letters/faq https://www.eff.org/issues/national-security-letters/faq [2]: https://www.reuters.com/article/us-apple-fbi-icloud-exclusive/exclusive-apple-dropped-plan-for-encrypting-backups-after-fbi-complained-sources-idUSKBN1ZK1CT https://www.reuters.com/article/us-apple-fbi-icloud-exclusiv... [3]: https://support.apple.com/en-us/HT202303 https://support.apple.com/en-us/HT202303 [4]: https://support.apple.com/guide/security/secure-keychain-syncing-sec0a319b35f/1/web/1 https://support.apple.com/guide/security/secure-keychain-syn...
- schoolornot 5y ago
  + my most sensitive service, Messages (if iCloud Messages is enabled)
  - xvector 5y ago
    Messages in iCloud is E2EE, but if you enable iCloud backup it's not: > Messages in iCloud also uses end-to-end encryption. If you have iCloud Backup turned on, your backup includes a copy of the key protecting your Messages. [1] I love it how doesn't state that practically speaking, iCloud Backup is not E2EE. It seems Apple is afraid to be forthright the privacy implications of iCloud Backup. [1]: https://support.apple.com/en-us/HT202303 https://support.apple.com/en-us/HT202303
lettergram 5y ago
Bare with me, I think everyone needs to understand (1) why the secret courts are so important and (2) some of the damage done. First, the steele dossier was paid for by the Clinton foundation (basis for “Trump Russian collusion”). https://justthenews.com/sites/default/files/2021-01/Steele2017FBIDebriefing.pdf https://justthenews.com/sites/default/files/2021-01/Steele20... The fbi knew this. Why was this important? It was what directly led a secret FISA warrant being used by the Obama administration using NSA, FBI, etc resources to spy on trump (recall Hilary was part of that administration AND was running for president. Biden was also part of the administration) https://en.m.wikipedia.org/wiki/File:Optimized.pdf https://en.m.wikipedia.org/wiki/File:Optimized.pdf So we are clear. This is 100x worse than watergate so far, but it continues... It appears the NSA director had an unauthorized meeting with trump after which Trump held many meetings in golf courses https://www.npr.org/2016/11/22/502980006/reports-suggest-nsa-director-mike-rogers-is-on-his-way-out https://www.npr.org/2016/11/22/502980006/reports-suggest-nsa... Then as the article this article is discussing the “Trump Justice Department” really refers to special council muller investigating the White House https://www.nytimes.com/2021/06/13/us/politics/justice-department-apple-donald-mcgahn.html https://www.nytimes.com/2021/06/13/us/politics/justice-depar... Yes, I agree these need to stop. But will any of these people ever be held accountable? No. Most people don’t even know all of this, EVEN THOUGH it’s in the public record. So no one is getting rid of these secret courts, it’s too powerful a political weapon. The entire “russian collusion” thing was fake. The fake report was propagated by the news (and still a lot of people believe it), but importantly it was used to have our secret courts decimate our president. I say “our” not because I agreed with the man, never voted for him. But he was our president. Had the secret courts and BS not been there we probably would have had a different view on trump. Yes the courts need to disappear. As does all the ex-cia, ex-nsa and ex-fbi working in media. The media is controlling our view of this whole story and not telling anyone the truth. The media is propagating these stories and the ex-three-letter-agency “analysts” for CNN, MSNBC, Fox, etc then make claims running cover and in fact fabricating evidence.
- pavlov 5y ago
  > “Had the secret courts and BS not been there we probably would have had a different view on trump.” It’s the other way around, really. The negative view was there first: Trump created it by his own actions and bizarrely obsequious behavior towards Russia. Looking for an explanation, people reached for rumors and complex theories. But the truth seems to be that he was just very eager to become best buddies with dictators. There’s no need for direct collusion when one person is Putin and the other is a fanboy who hated NATO and every other international structure just on instinct.
coretx 5y ago
We don't know the best arguments against secret gag orders because of secret gag orders.
- deleted 5y ago
  [deleted]
deleted 5y ago
[deleted]
steve76 5y ago
Marxist Chinese spies need to stop trying to get pregnant by arrogant US leadership, then threatening to abort it to sway trade policy. That, and stop killing millions of poor elderly people with a horrible bioweapon over soy bean prices. You are humans, not lawless animals. Act like it please.
deleted 5y ago
[deleted]
smhost 5y ago
> When it comes to cybersecurity, the cloud bolsters protection. But now we’ve learned that the Trump Justice Department exploited this feature as part of a secret effort to obtain emails... So he's saying that it doesn't bolster protection. And he's blaming the government for using "the cloud" in exactly the way that it was intended to be used: to spy on people.
- mikeiz404 5y ago
  I interpreted "the cloud bolsters protection" as cloud hosted solutions tend to be more secure since there is a single company which specializes in that service. They can protect the service better than any single company which develops it in house probably would since that is what they specialize in, it is managed, they have more money to throw at it due to many customers, and they can take advantage of economies of scale. However that does make the cloud provided service much more of a target for those seeking that data.
neonate 5y ago
https://archive.is/9aZH3 https://archive.is/9aZH3
rsync 5y ago
The first Warrant Canary just turned 15 years old: https://twitter.com/rsyncnet/status/1387090538273206274 https://twitter.com/rsyncnet/status/1387090538273206274 It will be updated tomorrow morning, just like every Monday morning since April 2006.
- xvector 5y ago
  Warrant canaries are unreliable. Apple, for example, stopped issuing warrant canaries in Sept. 2014 [1], but was added to the NSA's PRISM program almost 2 years earlier, in Oct. 2012 [2]. But I suppose a warrant canary by nature requires companies to be honest. There's not much you can do if the company is being deceptive with a vaguely phrased canary. [1]: https://arstechnica.com/tech-policy/2014/09/no-apple-probably-didnt-get-new-secret-govt-orders-to-hand-over-data https://arstechnica.com/tech-policy/2014/09/no-apple-probabl... [2]: https://arstechnica.com/tech-policy/2013/06/new-leak-feds-can-access-anything-in-your-google-facebook-and-more/ https://arstechnica.com/tech-policy/2013/06/new-leak-feds-ca...
  - rsync 5y ago
    I have it on good authority that this one will continue...
    - deleted 5y ago
      [deleted]
    - moonchild 5y ago
      What will you do if the government coerces you into falsely renewing your warrant canary?
      - axiosgunnar 5y ago
        I believe his defense against this is having three locations around the world that all need sign off for a canary to be published. So there is no „the government“.
      - 5y ago
flefto 5y ago
Good luck with that. Secrecy is a drug that governments become addicted to, and with zero down side for the government, nothing ever gets wound back. Things will only get ever more secret.
RickJWagner 5y ago
We live in a hodge-podge of privacy violations. The government abuses privacy. Private industry (especially Big Tech) violates privacy. It will take a new generation of courageous politicians to sort it out. Until then, we're in for more of the same.

204 points by 1cvmask 5y ago

Almost a courtesy that there was such an egregious absurd abuse of power. Can hardly ask for a more textbook example of how surveillance capitalism and authoritarian governments collide.

tomrod 5y ago

Secret gag orders are a dangerous game. It only requires one curmudgeon to bring it down. Some people legitimately don't care about future impact.

jrockway 5y ago

Good points. Secrecy was once used so that people wouldn't destroy the evidence the warrant sought. But now it's easy to tell the third party to retain the evidence; even if you delete it, they can still keep a copy. So there is no reason not to tell the target; they can't change the outcome, but they can begin the counter legal process to ensure their rights are preserved. Sometimes I wonder if they want secrecy so that criminals don't know they're being investigated, and commit a crime that's easier to prosecute. If they just stop committing crimes, then there's no fancy press release saying how great the DA is or whatever.

mlb_hn 5y ago
An alternative of that is as Oppenheimer once said, sometimes things are secret because a man doesn't like to know what he's up to if he can avoid it
Stratoscope 5y ago
> If they just stop committing crimes, then there's no fancy press release saying how great the DA is or whatever. That's an interesting observation on how people respond to their incentives. If I'm a DA, my job description is probably not to reduce crime. It is to successfully prosecute crimes that have already been committed. Of course, as a thoughtful and honorable person, I will naturally want to see if I can also reduce crime, not just prosecute it. But that is not the direct incentive I'm given. As a software developer on various mid-size teams, I've often found that I don't get much of a boost in my performance reviews when I find a way to make the entire team more productive, e.g. by solving a nagging problem that is affecting everyone. Instead, I get more highly rated by just making sure I knock out all of my own Jira tickets for the current sprint, and ignore those more global problems.
- roenxi 5y ago
  As a thoughtful and honourable person ... my guess is that there would be probably 6-12 months fighting the incentive then a process something like: * Develop a philosophy that there are bad people out there. * Greatest good strategy is to identify and incarcerate/re-educate these bad people through punishment. * Therefore preemptive crime reduction measures don't really get to the root problem - they provide cover for the bad people to operate. * Anyone talking about how all people are made up of shades of grey doesn't understand the situation and should be ignored. People providing legal support to the bad people are troublemakers. * Bad people are the ones least able to resist prosecution. This is a mystery the DA never really sits down to rationalise. That transformation isn't a new thing. Incentives and a smart mind can rationalise much harder situations.
- eru 5y ago
  > If I'm a DA, my job description is probably not to reduce crime. It is to successfully prosecute crimes that have already been committed. Well, it gets worse. Look beyond the job description to the actual incentives people face. If you are a DA with political ambitions, you might want to prosecute some very specific things, whether they are crimes or not. See also https://en.wikipedia.org/wiki/Public_choice https://en.wikipedia.org/wiki/Public_choice (And also https://en.wikipedia.org/wiki/Parkinson%27s_law https://en.wikipedia.org/wiki/Parkinson%27s_law for empire building.)
throwaway29834 5y ago
> Sometimes I wonder if they want secrecy so that criminals don't know they're being investigated, and commit a crime that's easier to prosecute. This is idiotic. When I worked murder investigations that used wiretaps, we didn't want the suspect to commit another murder. We wanted to gain enough evidence to see the suspect convicted. It defeats the purpose of the wiretap if they know we're listening to them.

Aerroon 5y ago

Secret gag orders and secret courts shouldn't be a thing in countries that call themselves free. It's a violation of due process. For all I know, the worst conspiracy theories I can imagine could all be true just because secret gag orders exist. It's impossible to prove that they're not true when policy like that is acceptable. It's an affront to democracy.

mgoetzke 5y ago
Illegal spying should remain illegal. When a spy agency has nothing to loose anymore, does not have to tread carefully anymore to see which laws to break or sidestep there is no bound to the eventual corruption that will come with time

deleted 5y ago

[deleted]

adrr 5y ago

Interesting relevation is the NY Times and Google gag order was actively contested. The contract between NY Times and Google required that Google disclose any data requests to allow NY Times to contest them. Google actively contested the gag order because of this clause. That is going to be requirement in any service provider contract that I sign going forward.

appleflaxen 5y ago
outstanding point

xvector 5y ago

The 300,000 warrantless secret gag orders issued by the FBI [1] are why we should be E2EEing all the things. Really disappointed that Apple held off implementing further E2EE in iCloud at the FBI's behest [2]. A lot of very personal data is not E2EE in iCloud [3]: - Calendars - Contacts - iCloud Drive - Notes - Photos - Reminders - Voice Memos - Mail This is honestly completely unacceptable. The current 'E2EE' is basically a farce - storing this data without E2EE in the cloud creates an extremely powerful state surveillance apparatus subject to gag orders. It is irrelevant that my Memoji are E2EE when my photos, notes, files, and calendars are not. Furthermore, the E2EE implementation might not even be true E2EE: > When a user enables iCloud Keychain for the first time, the device establishes a circle of trust and creates a syncing identity for itself. > When the user turns on iCloud Keychain on another device, iCloud Keychain notices that the user has a previously established syncing circle in iCloud that it isn’t a member of. The device creates its syncing identity key pair, then creates an application ticket to request membership in the circle. [4] It follows that Apple or a malicious actor can add an invisible device to the initial keyring server-side - a virtual 'zeroth device' - and 'approve' the user's very first device. It would receive everything added to iCloud Keychain. It isn't stated if the iCloud Devices list in Settings is a cryptographically verified list of all devices. Until Apple verifies that this is the case, we cannot reasonably call iCloud Keychain E2EE. [1]: https://www.eff.org/issues/national-security-letters/faq https://www.eff.org/issues/national-security-letters/faq [2]: https://www.reuters.com/article/us-apple-fbi-icloud-exclusive/exclusive-apple-dropped-plan-for-encrypting-backups-after-fbi-complained-sources-idUSKBN1ZK1CT https://www.reuters.com/article/us-apple-fbi-icloud-exclusiv... [3]: https://support.apple.com/en-us/HT202303 https://support.apple.com/en-us/HT202303 [4]: https://support.apple.com/guide/security/secure-keychain-syncing-sec0a319b35f/1/web/1 https://support.apple.com/guide/security/secure-keychain-syn...

schoolornot 5y ago
+ my most sensitive service, Messages (if iCloud Messages is enabled)
- xvector 5y ago
  Messages in iCloud is E2EE, but if you enable iCloud backup it's not: > Messages in iCloud also uses end-to-end encryption. If you have iCloud Backup turned on, your backup includes a copy of the key protecting your Messages. [1] I love it how doesn't state that practically speaking, iCloud Backup is not E2EE. It seems Apple is afraid to be forthright the privacy implications of iCloud Backup. [1]: https://support.apple.com/en-us/HT202303 https://support.apple.com/en-us/HT202303

lettergram 5y ago

Bare with me, I think everyone needs to understand (1) why the secret courts are so important and (2) some of the damage done. First, the steele dossier was paid for by the Clinton foundation (basis for “Trump Russian collusion”). https://justthenews.com/sites/default/files/2021-01/Steele2017FBIDebriefing.pdf https://justthenews.com/sites/default/files/2021-01/Steele20... The fbi knew this. Why was this important? It was what directly led a secret FISA warrant being used by the Obama administration using NSA, FBI, etc resources to spy on trump (recall Hilary was part of that administration AND was running for president. Biden was also part of the administration) https://en.m.wikipedia.org/wiki/File:Optimized.pdf https://en.m.wikipedia.org/wiki/File:Optimized.pdf So we are clear. This is 100x worse than watergate so far, but it continues... It appears the NSA director had an unauthorized meeting with trump after which Trump held many meetings in golf courses https://www.npr.org/2016/11/22/502980006/reports-suggest-nsa-director-mike-rogers-is-on-his-way-out https://www.npr.org/2016/11/22/502980006/reports-suggest-nsa... Then as the article this article is discussing the “Trump Justice Department” really refers to special council muller investigating the White House https://www.nytimes.com/2021/06/13/us/politics/justice-department-apple-donald-mcgahn.html https://www.nytimes.com/2021/06/13/us/politics/justice-depar... Yes, I agree these need to stop. But will any of these people ever be held accountable? No. Most people don’t even know all of this, EVEN THOUGH it’s in the public record. So no one is getting rid of these secret courts, it’s too powerful a political weapon. The entire “russian collusion” thing was fake. The fake report was propagated by the news (and still a lot of people believe it), but importantly it was used to have our secret courts decimate our president. I say “our” not because I agreed with the man, never voted for him. But he was our president. Had the secret courts and BS not been there we probably would have had a different view on trump. Yes the courts need to disappear. As does all the ex-cia, ex-nsa and ex-fbi working in media. The media is controlling our view of this whole story and not telling anyone the truth. The media is propagating these stories and the ex-three-letter-agency “analysts” for CNN, MSNBC, Fox, etc then make claims running cover and in fact fabricating evidence.

pavlov 5y ago
> “Had the secret courts and BS not been there we probably would have had a different view on trump.” It’s the other way around, really. The negative view was there first: Trump created it by his own actions and bizarrely obsequious behavior towards Russia. Looking for an explanation, people reached for rumors and complex theories. But the truth seems to be that he was just very eager to become best buddies with dictators. There’s no need for direct collusion when one person is Putin and the other is a fanboy who hated NATO and every other international structure just on instinct.

coretx 5y ago

We don't know the best arguments against secret gag orders because of secret gag orders.

deleted 5y ago
[deleted]

deleted 5y ago

[deleted]

steve76 5y ago

Marxist Chinese spies need to stop trying to get pregnant by arrogant US leadership, then threatening to abort it to sway trade policy. That, and stop killing millions of poor elderly people with a horrible bioweapon over soy bean prices. You are humans, not lawless animals. Act like it please.

deleted 5y ago

[deleted]

smhost 5y ago

> When it comes to cybersecurity, the cloud bolsters protection. But now we’ve learned that the Trump Justice Department exploited this feature as part of a secret effort to obtain emails... So he's saying that it doesn't bolster protection. And he's blaming the government for using "the cloud" in exactly the way that it was intended to be used: to spy on people.

mikeiz404 5y ago
I interpreted "the cloud bolsters protection" as cloud hosted solutions tend to be more secure since there is a single company which specializes in that service. They can protect the service better than any single company which develops it in house probably would since that is what they specialize in, it is managed, they have more money to throw at it due to many customers, and they can take advantage of economies of scale. However that does make the cloud provided service much more of a target for those seeking that data.

neonate 5y ago

https://archive.is/9aZH3 https://archive.is/9aZH3

rsync 5y ago

The first Warrant Canary just turned 15 years old: https://twitter.com/rsyncnet/status/1387090538273206274 https://twitter.com/rsyncnet/status/1387090538273206274 It will be updated tomorrow morning, just like every Monday morning since April 2006.

xvector 5y ago
Warrant canaries are unreliable. Apple, for example, stopped issuing warrant canaries in Sept. 2014 [1], but was added to the NSA's PRISM program almost 2 years earlier, in Oct. 2012 [2]. But I suppose a warrant canary by nature requires companies to be honest. There's not much you can do if the company is being deceptive with a vaguely phrased canary. [1]: https://arstechnica.com/tech-policy/2014/09/no-apple-probably-didnt-get-new-secret-govt-orders-to-hand-over-data https://arstechnica.com/tech-policy/2014/09/no-apple-probabl... [2]: https://arstechnica.com/tech-policy/2013/06/new-leak-feds-can-access-anything-in-your-google-facebook-and-more/ https://arstechnica.com/tech-policy/2013/06/new-leak-feds-ca...
- rsync 5y ago
  I have it on good authority that this one will continue...
  - deleted 5y ago
    [deleted]
  - moonchild 5y ago
    What will you do if the government coerces you into falsely renewing your warrant canary?
    - axiosgunnar 5y ago
      I believe his defense against this is having three locations around the world that all need sign off for a canary to be published. So there is no „the government“.
    - 5y ago

flefto 5y ago

Good luck with that. Secrecy is a drug that governments become addicted to, and with zero down side for the government, nothing ever gets wound back. Things will only get ever more secret.

RickJWagner 5y ago

We live in a hodge-podge of privacy violations. The government abuses privacy. Private industry (especially Big Tech) violates privacy. It will take a new generation of courageous politicians to sort it out. Until then, we're in for more of the same.