14 ms·

Judge orders Google to comply with FBI's secret NSL demands

196 points by declan 13y ago

CurtHagenlocher 13y ago
The most insidious thing about this is that the government is probably precluded from collecting the kind of information about us that companies like Google and Facebook routinely gather. But as long as someone else has already done the work, the government can just demand the information.
- Bosence 13y ago
  I have never thought about it that way before.
- magicalist 13y ago
  To be fair, that's literally the point of a search warrant (/subpoena/"demand letter"). It's a bit like saying that the phone company has already done all the work identifying who you call. Well, yes, that's what you use them for. I assume your point is more that we use these services for more than any one service in the past. The real issue in this case, however, is that the FBI can request the data and no one will ever know that they did. That can only lead to abuse. How many of those 192,499 requests were actually used to fight terrorism? Well, we can't find out...
  - axus 13y ago
    National Security Letters are warrant-less. A search by the government is [should be] only legal if it meets the conditions of the Fourth Amendment.
    - pyre 13y ago
      To be fair the NSL is the same thing as a warrant minus the judicial oversight (and possible paper trail). A NSL isn't diametrically different than a warrant.
      - magicalist 13y ago
        That's not correct. You can only request "non-content" data with a NSL, e.g. IP addresses, times of access, headers, etc. You need a warrant if you want actual content of communications, etc. (that's legally, of course. Many companies will roll over for even an informal request if they don't know better or to play ball (see: the telecom industry))
      - yardie 13y ago
        > A NSL isn't diametrically different than a warrant. The whole judicial oversight is the main and most important difference. Justice is supposed to be a balance and in these case the other side is loading the scale.
        pyre 13y ago
        A NSL is a government order to produce something, so is a warrant. The difference is that a warrant has oversight as a check against abuse, and a NSL has removed all oversight (no judge, can't talk about it, etc). | The whole judicial oversight is the main and | most important difference Not necessarily. If Google (or whomever) could publish all of the NSLs that they get, it would have the possibility to cause public backlash that spurns Congress into action. Let's not forget that if we use the 'secret court' (e.g. FISA) to approve these NSLs, there's a 99.9% chance of them being approved. The FISA court rarely rejects what is put to it (which makes it sort of telling that the government doesn't even want to deal with the formality of the FISA court). | Justice is supposed to be a balance and in | these case the other side is loading the scale. You are trying to say that because you don't like National Security Letters, but you do agree with warrants that they have to contain no similarities. I disagree with NSLs, but talking about NSLs like warrants without judicial oversight doesn't require some addendum of, "OMG! NSLs ARE NOT WARRANTS! WAKE UP SHEEPLE!"
        declan 13y ago
        Well, yes. Both are legal requests, if you want to think of it that way. But types of requests can be differentiated. We can draw a distinction, for instance, between a charity requesting that you voluntarily donate $$$ and an armed man on the sidewalk pulling a gun and requesting $$$. :)
    - rayiner 13y ago
      Not all searches under the 4th amendment require a warrant. The structure of the 4th amendment is a little bit non-obvious (see: http://lawlibrary.unm.edu/nmlr/10/1/03_stelzner_fourth.pdf‎ http://lawlibrary.unm.edu/nmlr/10/1/03_stelzner_fourth.pdf‎). The text reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The ", and" between "violated" and "no Warrants" complicates the interpretation.[1] At common law, there was a well-understood universe of things that required warrants. Thus, the comma can be read as creating two separate requirements: 1) All searches must be reasonable; and 2) All warrants (to the extent that a search requires a warrant) must be supported by probable cause. This reading admits the possibility of searches that are reasonable but don't require warrants. And this is a common sense category (e.g. very few people would say that police should have to go get a warrant to search a robber caught at the crime scene for weapons). Contemporary battles tend to be over what kinds of searches require warrants. This isn't just a battle over grammar, however. It's a question of: "what did we agree on the scope of the government's powers being?" As a general rule, the law doesn't constraint the government's ability to subpoena information from a third party without a warrant. E.g. if you're being prosecuted for fraud, the government doesn't need a warrant to subpoena your business partners requesting all documents they have from their dealings with you. The purpose of the 4th amendment is to protect you from the indignity of the search, not to protect the information itself. Under that logic, you can make a reasonable case that nothing should stop the government from subpoenaing any information Google or AT&T have about you. The real problem here is the secret nature of the NSL's, not the 4th amendment issues, IMHO. One of the things that justifies the far-reaching subpoena powers of common law courts is the fact that they are distributed, transparent entities--nearly everything is a matter of public record. [1] In plain speech, I might say: "I eat pizza, and I eat cake." The ", and" combines two independent thoughts without any necessary relationship between them, other than the fact that I like both. It could be the case that I never eat pizza and cake in the same meal.
      - sageikosa 13y ago
        Many of the warranted search battles when dealing with online information center around who owns the data. "Persons, houses, papers, and effects" might have made a lot of sense when indirect communication only could travel via letters, and knowledge only stored in books and memoirs. If a jewelry store puts up cameras to track people in the store, the jewelry store owns the footage and information. If Google tracks user queries, Google owns the tracking data (even if its about me). If I buy a storage locker, a warrant is needed to open it up without my consent. If Google "sells" me data storage either directly or indirectly, I assume I own the data stored within and it should take a warrant to access it, regardless of how easy it might be for the superintendent of the service to access it.
  - deleted 13y ago
    [deleted]
- tomkarlo 13y ago
  Does anyone know if they're actually precluded from this, or if it's just a matter of it being far more convenient to NSL a company that already has the data? As least in the latter scenario, they're not simply collecting data on everyone all the time.
OldSchool 13y ago
All they would have to do is go through traditional judicial procedure to gather information and nobody would complain. That shouldn't be too much to ask.
- dmix 13y ago
  What's good for the goose, is good for the gander.
mindcrime 13y ago
In a free and open society, we can't accept a government which operates in secret. If our government is to be accountable to the people, it needs to be transparent in what it's doing and how it's doing it. Just crying "national security, national security" doesn't magically make it OK for the government to do whatever it wants. I've often considered that if I were in a position to receive one of these, that I'd turn around and publish it on the web immediately after receiving it, and just accept the consequences. If that day ever comes, I hope I have the courage to go through with it.
- mhurron 13y ago
  > In a free and open society The people do not seem to want to live in a free and open society.
  - mindcrime 13y ago
    The people do not seem to want to live in a free and open society. Yeah. That makes me very sad. :-(
  - Xanza 13y ago
    Agreed, unfortunately.
  - forgottenpaswrd 13y ago
    Cynical view, most people can't understand what a computer is or what it could do. Most people can't understand how easy is for the government to access the pictures they post on facebook. This does not mean they don't care.
    - cinquemb 13y ago
      "Today, nobody cares… But tomorrow, they will…" - Wasalu Muhammad Jaco https://www.youtube.com/watch?v=Ge4BEdyZ8bM https://www.youtube.com/watch?v=Ge4BEdyZ8bM
- snowwrestler 13y ago
dmix 13y ago
I love looking up these judges track history with technology: http://en.wikipedia.org/wiki/Susan_Illston http://en.wikipedia.org/wiki/Susan_Illston > Sony v. Hotz > Currently, Illston is the presiding judge in Sony Computer Entertainment America LLC v. George Hotz, et al.,[13] in which Sony claims that Hotz's jailbreaking of the Sony PlayStation 3 violates the Digital Millennium Copyright Act. > She has granted Sony permission to track as much information as possible about those who had seen a private YouTube video about the jailbreak and to read their comments, plus obtain access to IP addresses, accounts, and other details of visitors to sites run by Geohot. The access granted by Illston extends even to those who had not downloaded the jailbreak code. So clearly her interest in information privacy is non existant.
- rayiner 13y ago
  The context of the order in Sony is with respect to discovery in an ongoing trial. There is very little "information privacy" with respect to the power of a court to seek out evidence in a trial, from anyone that might have it. See Elkins v. United States ("The pertinent general principle, responding to the deepest needs of society, is that society is entitled to every man's evidence."). But that's a very different issue than privacy rights in general.
  - venomsnake 13y ago
    The access granted by Illston extends even to those who had not downloaded the jailbreak code. I would say this puts it a bit out of the comfort zone.
    - rayiner 13y ago
      The judge granted access to get IP addresses of visitors to his website, whether or not they downloaded the code, which would be relevant to Sony in proving how widely the information was disseminated. There is nothing unusual about this. Information relevant to a claim or defense is fair game for a court's subpoena power. If this was a murder case, that took place in an apartment, the judge would allow the prosecution to subpoena the lobby's visitor logs, even as to people who were not visiting the victim's apartment. This doesn't say anything about the judge's views on "information privacy" just about the fact that there really isn't any as against the subpoena power of a court. If the material is private in some way, it will be treated confidentially and redacted in public filings, but that's about it. That's the problem with talking about a "right to privacy" in Anglo American law: there really isn't one. There are various protections serving different purposes, but they're not unified into some overarching principle of a right not to disclose or have information disclosed. That's why the subpoena power is so much broader than the power of police to search: because the animating principle isn't "privacy" but rather the protection of criminal defendants. If it were about privacy it wouldn't make sense to e.g. treat witnesses, who can be compelled to testify, differently than defendants, who can't. Now, I'm not arguing that this is the best possible way to do things. But it's the way we have been doing it for centuries (since the Middle Ages).
rayiner 13y ago
Relevant: "Illston, who is stepping down from her post in July, said another reason for her decision is her desire not to interfere while the Ninth Circuit Court of Appeals is reviewing the constitutionality of NSLs in an unrelated case that she also oversaw. In that separate lawsuit brought by the Electronic Frontier Foundation on behalf of an unnamed telecommunications company, Illston dealt a harsh blow to the bureau's use of NSLs."
DanielBMarkham 13y ago
The sad thing here is that there is a real war on terror, no matter what you hear. There are actual violent-minded individuals that the state has an obligation to track and protect us from. But the powers granted to the state to do this are humongously broad. It's ludicrous to have the FBI be able to write letters and retrieve any of your online activity it wants -- all without you knowing about it. The IRS has even more power. It can pull your records without the NSLs. All you have to be is "interesting" to them. (Don't know if they've exercised this power yet, but it's coming) So when corporations like Google complain, out trots the assistant director to give classified testimony about all these evil folks in the world. Yes, sure. But one doesn't justify the other. I'm really happy somebody is doing something about bad guys right now. What I worry about is a few years down the road when all of this security state nonsense is used for political reasons. Some people think you have to be afraid of the government knowing too much about you. Some people think you have to be afraid of corporations knowing too much about you. Some people worry that we can easily find out too much about just about anybody (facial recognition Google glass tied back to something like Spokeo isn't far off). But it's not an either-or choice. All of these factors work together, as we see in this case. This is not going to end well.
- betterunix 13y ago
  "There are actual violent-minded individuals that the state has an obligation to track and protect us from." It is hard to say, given the secrecy that surrounds all this. Who are our enemies right now? Who is the government trying to protect us from? We are meant to take it as a given that there are terrorists out there and that the government is actively protecting us from them -- yet so far, we have only heard about plots that either succeeded, or that never had a realistic chance of succeeding. We need to know the danger and how it is being addressed. If the government will not even tell us who is a suspected terrorist and why they are under suspicion, we have no choice but to assume that they are abusing their power.
  - diminoten 13y ago
    Do you deny the theoretical possibility that somewhere on this planet there are people actively attempting to hurt people in the US? Do you further, or alternatively deny that alerting those people to the fact that the FBI knows about them would harm the FBI's ability to stop them from harming people in the US? This should be an argument of degrees and to what extent, not an argument about the existence of a threat in the first place, or that the government should be absolutely open about everything. Such a position is quite extremist and completely impractical.
losethos 13y ago
God says... 4:13 And he said unto him, Say now unto her, Behold, thou hast been careful for us with all this care; what is to be done for thee? wouldest thou be spoken for to the king, or to the captain of the host? And she answered, I dwell among mine own people. 4:14 And he said, What then is to be done for her? And Gehazi answered, Verily she hath no child, and her husband is old. 4:15 And he said, Call her. And when he had called her, she stood in the door. 4:16 And he said, About this season, according to the time of life, thou shalt embrace a son. And she said, Nay, my lord, thou man of God, do not lie unto thine handmaid. 4:17 And the woman conceived, and bare a son at that season that Elisha had said unto her, according to the time of life. 4:18 And when the child was grown, it fell on a day, that he went out to his father to the reapers.
javajosh 13y ago
The mechanism for "watching the watchers" are the other two branches of government. One of the most worrying things I've seen is that the judicial branch seems unwilling to really oversee the executive branch. It's like judges want to abrogate their responsibility to check executive power. Are warrants really that much of a headache? Are they really that slow? Do the judges think that it matters that little to the public and the risk of harm that low?
- saalweachter 13y ago
  Responsibility is a headache. Even better than covering your ass is not having to. Judges should be issuing warrants for searches, and denying them when appropriate. But what if a judge appropriately denies a warrant for an overly broad search with no evidence of wrong doing on the part of those being searched, and then a building is blown up and it turns out the overly broad search would have caught the bastard? The judge acted appropriately, but he'll be crucified none-the-less. Too many people don't want to take the responsibility for doing the right thing and having bad come of it, so they'd rather do nothing, or even the wrong thing.
- rayiner 13y ago
  It's not because judges think warrants are a headache. It's because judges are deathly scared of being perceived as "judicial activists." The story of the judiciary of the last 20-30 years is the story of the backlash against the judiciary for liberal activism during the 1960's and 1970's, and a subsequent tendency to defer to the political branches whenever possible. As against the other two branches, all the court has is political capital. Nothing stops the President or Congress from just ignoring a court decision. The judiciary spent tremendous political capital during the civil rights era, and doesn't have enough left to battle the current era of overreaches in the name of national security. And in any case, national security was always one of the areas in which the executive branch was considered to be supreme over the other two branches.
  - declan 13y ago
    Judges don't wake up in the morning and say, "Well, I would like to do the right thing and declare this surveillance unconstitutional, but there was that Brown v. Board of Education sixty years ago, and so I'm going to punt!" Especially when you have tenure for life and -- in the case of the judge mentioned in my article that started this thread -- are voluntarily retiring in a month anyway. (Even if you get removed from office, which of course never happens, you'd get 5x - 10x your salary in the private sector.) In general, lower courts follow the lead of appellate courts, which in turn follow the lead of the Supreme Court. And on constitutional issues, those justices don't like to get too far out in front of what they believe the national consensus to be. That's why you have toothless rulings like U.S. v. Lopez, a commerce clause case that conservatives initially applauded, only to have Congress slightly tweak the law without complaint from the courts.
declan 13y ago
FYI, folks, I just posted a new article about a different lawsuit in New York in which the U.S. Department of Justice is asking a asked a Manhattan judge to grant its "petition to enforce" the FBI's NSL: http://news.cnet.com/8301-13578_3-57587005-38/justice-department-tries-to-force-google-to-hand-over-user-data/ http://news.cnet.com/8301-13578_3-57587005-38/justice-depart... Discussion thread: https://news.ycombinator.com/item?id=5799541 https://news.ycombinator.com/item?id=5799541
SideburnsOfDoom 13y ago
> The sad thing here is that there is a real war on terror Yeah. A pity there isn't a war on furniture too. http://www.theatlantic.com/international/archive/2012/06/americans-are-as-likely-to-be-killed-by-their-own-furniture-as-by-terrorism/258156/ http://www.theatlantic.com/international/archive/2012/06/ame...
- twoodfin 13y ago
  My god those comparisons are stupid. Was the U.S. getting involved in WW2 a severe overreaction since Americans were massively more likely to die of polio or black lung than Japanese or German bombs?
  - SideburnsOfDoom 13y ago
    A foreign military's bombs were intended as a prelude to invasion or destruction of the entire military capacity. A terrorist attack is a prelude to ... nothing much.
    - twoodfin 13y ago
      I don't think Japan was interested in destroying our entire military capacity, just enough to get us out of the Pacific. It wasn't a radically dissimilar aim than Al Qaeda's goal to get us out of the Islamic world, though just about everything else about the two events was different. As for a terrorist attack being "a prelude to ... nothing much", you know there was a first World Trade Center bombing, right?
bloaf 13y ago
What is to stop Google from simply giving the FBI the runaround for as long as it takes to get the legality sorted out. They could agree to give them the data and then cite technical difficulties, bureaucratic red tape, and other mistakes to stall for a year or two.
- declan 13y ago
  Contempt of court.
coldcode 13y ago
I wonder what would happen if Google told the FBI to bugger off and printed the NSLs on the web.
- MichaelGG 13y ago
  Fines, criminal charges? More importantly, the USG could find evidence against the individual, even invent something or help the target commit a crime, then "legitimately" say "See, Google is directly protecting real terrorists", which would help the USG far more than Google giving in to the NSLs.
  - walshemj 13y ago
    two words Anti trust :-)
  - rsync 13y ago
    I'll just leave this right here... rsync.net Warrant Canary - http://www.rsync.net/resources/notices/canary.txt http://www.rsync.net/resources/notices/canary.txt
- declan 13y ago
  Contempt of court. Also, even though some FBI NSL demands may improper, others would have a valid anti-terror component, and no company I'm aware of would intentionally interfere with such an investigation.
SeanDav 13y ago
The US government is missing the mark so completely, it is scary. Does anyone here think that actual, real terrorists are going to be discussing their plans using anything other than highly encrypted protocols, along with code words? These measures are absolutely of no use in catching anyone that is more intelligent than a gnat that actually wants to harm the US.
- alan_cx 13y ago
  I'm right with you in spirit, you should be 100% correct. But these terrorists do keep using electronic communications. I don't think any one serious and vaguely intelligent planning a major crime would do so using electronic communications. Surely every one now knows that it is iffy at best, and many believe that it is basically easily open to the authorities at a whim. But over an over again, these terrorists and/or their sympathisers do keep using electronic communications, then getting caught. Almost every case I can think of that has ended up in court and is reported on, has a big element of electronic communications evidence. It seems they are indeed as intelligent as that poor gnat, (who is probably asking why he is being bought in to it!!!). But, IIRC, a lot of the terrorists, we are told, are pretty smart people. They are not trailer trash (US) or chav scum (UK), they turn out to be degree level people, or students studying for degrees. Smart people, right? Ok, a fair number of them expect to die as a result of their terrorist action, but as we saw in Boston, that was not the case for them. But, why risk the "mission" being blown before it happens because of an electronic interception? They then risk doing the time, with out doing the crime. Worse still, it then gets used to justify the removal of various freedoms and liberty from the average citizen. And so on.... What you are saying should be 100% correct. It really should. But insanely, it isn't. Quite bizarre if you ask me.
- rayiner 13y ago
  > Does anyone here think that actual, real terrorists are going to be discussing their plans using anything other than highly encrypted protocols, along with code words? We keep seeing that a lot of terrorists are quite amateurish.
donrememberpass 13y ago
Is this a good time already to start building service clones from other countries that have a big stamp on it: "FBI-SAFE! 100% guarantee there's no ~FBI CRAMPS~ on your private communication, photos, locations, likes, etc we respect your privacy and we care for the future of mankind! Want to live in dystopian 1984 future in just about 10 years? We don't, too! (service hosted and maintained in Brazil)"
- walshemj 13y ago
  So the CIA station officer has a word with his counterpart - hint south Americas security services don't exactly have a shining record.
  - donrememberpass 13y ago
    Still, that's not the point. The point is that all this madness is so fragile and stupid that it can give lever for digital businesses overseas to have competitive edge on yours by both not being forced to waste resources building backdoors and surveillance into their systems(which also make them less secure) and also by making them have an advantage no USA business will be allowed to have ever, which is to offer privacy. It's probably what MEGA was thinking. Now when and if this happens the FBI will really see what's 'going dark'. Of course, they have plenty of means to try influencing things their ways but it's utterly unmanageable, if they choose to hack the servers and news break that US Government agencies are hacking into legitimate businesses overseas, it's not gonna sit well with both governments(Brazil, for example, is historically a pacific country that tries to not interfere with anyone, how will you make it into a terrorist country?) and to the general population, they can also do it politically but this won't sit well with the country's population too and are sure to have 'anti-american' vibes increasing, besides that, each country has it's culture and takes on civil liberties(and the chopping of them) and also it's own interests and industries it allows to influence it's politics, in Brazil that would be Meat, Soil, Mining, Cars industries... and if allowing privacy(or, at least, keeping civilian basic constitutional rights) ends up helping the economy too then it may also be a choice to be considered to support it too, right? Dunno if Hollywood bullshit will stick everywhere, and going heavy-handed on other countries matters are sure to spread the shit, there's plenty of countries in the world.
joyeuse6701 13y ago
I fail to see why an NSL is even necessary when a warrant should suffice?
shitlord 13y ago
What's with all the knee-jerk reactionary responses (and with all of them repeating roughly the same thing)? Under our legal system, it really shouldn't come as a shock to see how things turned out.

196 points by declan 13y ago

The most insidious thing about this is that the government is probably precluded from collecting the kind of information about us that companies like Google and Facebook routinely gather. But as long as someone else has already done the work, the government can just demand the information.

Bosence 13y ago
I have never thought about it that way before.
magicalist 13y ago
To be fair, that's literally the point of a search warrant (/subpoena/"demand letter"). It's a bit like saying that the phone company has already done all the work identifying who you call. Well, yes, that's what you use them for. I assume your point is more that we use these services for more than any one service in the past. The real issue in this case, however, is that the FBI can request the data and no one will ever know that they did. That can only lead to abuse. How many of those 192,499 requests were actually used to fight terrorism? Well, we can't find out...
- axus 13y ago
  National Security Letters are warrant-less. A search by the government is [should be] only legal if it meets the conditions of the Fourth Amendment.
  - pyre 13y ago
    To be fair the NSL is the same thing as a warrant minus the judicial oversight (and possible paper trail). A NSL isn't diametrically different than a warrant.
    - magicalist 13y ago
      That's not correct. You can only request "non-content" data with a NSL, e.g. IP addresses, times of access, headers, etc. You need a warrant if you want actual content of communications, etc. (that's legally, of course. Many companies will roll over for even an informal request if they don't know better or to play ball (see: the telecom industry))
    - yardie 13y ago
      > A NSL isn't diametrically different than a warrant. The whole judicial oversight is the main and most important difference. Justice is supposed to be a balance and in these case the other side is loading the scale.
      - pyre 13y ago
        A NSL is a government order to produce something, so is a warrant. The difference is that a warrant has oversight as a check against abuse, and a NSL has removed all oversight (no judge, can't talk about it, etc). | The whole judicial oversight is the main and | most important difference Not necessarily. If Google (or whomever) could publish all of the NSLs that they get, it would have the possibility to cause public backlash that spurns Congress into action. Let's not forget that if we use the 'secret court' (e.g. FISA) to approve these NSLs, there's a 99.9% chance of them being approved. The FISA court rarely rejects what is put to it (which makes it sort of telling that the government doesn't even want to deal with the formality of the FISA court). | Justice is supposed to be a balance and in | these case the other side is loading the scale. You are trying to say that because you don't like National Security Letters, but you do agree with warrants that they have to contain no similarities. I disagree with NSLs, but talking about NSLs like warrants without judicial oversight doesn't require some addendum of, "OMG! NSLs ARE NOT WARRANTS! WAKE UP SHEEPLE!"
        declan 13y ago
        Well, yes. Both are legal requests, if you want to think of it that way. But types of requests can be differentiated. We can draw a distinction, for instance, between a charity requesting that you voluntarily donate $$$ and an armed man on the sidewalk pulling a gun and requesting $$$. :)
  - rayiner 13y ago
    Not all searches under the 4th amendment require a warrant. The structure of the 4th amendment is a little bit non-obvious (see: http://lawlibrary.unm.edu/nmlr/10/1/03_stelzner_fourth.pdf‎ http://lawlibrary.unm.edu/nmlr/10/1/03_stelzner_fourth.pdf‎). The text reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The ", and" between "violated" and "no Warrants" complicates the interpretation.[1] At common law, there was a well-understood universe of things that required warrants. Thus, the comma can be read as creating two separate requirements: 1) All searches must be reasonable; and 2) All warrants (to the extent that a search requires a warrant) must be supported by probable cause. This reading admits the possibility of searches that are reasonable but don't require warrants. And this is a common sense category (e.g. very few people would say that police should have to go get a warrant to search a robber caught at the crime scene for weapons). Contemporary battles tend to be over what kinds of searches require warrants. This isn't just a battle over grammar, however. It's a question of: "what did we agree on the scope of the government's powers being?" As a general rule, the law doesn't constraint the government's ability to subpoena information from a third party without a warrant. E.g. if you're being prosecuted for fraud, the government doesn't need a warrant to subpoena your business partners requesting all documents they have from their dealings with you. The purpose of the 4th amendment is to protect you from the indignity of the search, not to protect the information itself. Under that logic, you can make a reasonable case that nothing should stop the government from subpoenaing any information Google or AT&T have about you. The real problem here is the secret nature of the NSL's, not the 4th amendment issues, IMHO. One of the things that justifies the far-reaching subpoena powers of common law courts is the fact that they are distributed, transparent entities--nearly everything is a matter of public record. [1] In plain speech, I might say: "I eat pizza, and I eat cake." The ", and" combines two independent thoughts without any necessary relationship between them, other than the fact that I like both. It could be the case that I never eat pizza and cake in the same meal.
    - sageikosa 13y ago
      Many of the warranted search battles when dealing with online information center around who owns the data. "Persons, houses, papers, and effects" might have made a lot of sense when indirect communication only could travel via letters, and knowledge only stored in books and memoirs. If a jewelry store puts up cameras to track people in the store, the jewelry store owns the footage and information. If Google tracks user queries, Google owns the tracking data (even if its about me). If I buy a storage locker, a warrant is needed to open it up without my consent. If Google "sells" me data storage either directly or indirectly, I assume I own the data stored within and it should take a warrant to access it, regardless of how easy it might be for the superintendent of the service to access it.
- deleted 13y ago
  [deleted]
tomkarlo 13y ago
Does anyone know if they're actually precluded from this, or if it's just a matter of it being far more convenient to NSL a company that already has the data? As least in the latter scenario, they're not simply collecting data on everyone all the time.

OldSchool 13y ago

All they would have to do is go through traditional judicial procedure to gather information and nobody would complain. That shouldn't be too much to ask.

dmix 13y ago
What's good for the goose, is good for the gander.

mindcrime 13y ago

In a free and open society, we can't accept a government which operates in secret. If our government is to be accountable to the people, it needs to be transparent in what it's doing and how it's doing it. Just crying "national security, national security" doesn't magically make it OK for the government to do whatever it wants. I've often considered that if I were in a position to receive one of these, that I'd turn around and publish it on the web immediately after receiving it, and just accept the consequences. If that day ever comes, I hope I have the courage to go through with it.

mhurron 13y ago
> In a free and open society The people do not seem to want to live in a free and open society.
- mindcrime 13y ago
  The people do not seem to want to live in a free and open society. Yeah. That makes me very sad. :-(
- Xanza 13y ago
  Agreed, unfortunately.
- forgottenpaswrd 13y ago
  Cynical view, most people can't understand what a computer is or what it could do. Most people can't understand how easy is for the government to access the pictures they post on facebook. This does not mean they don't care.
  - cinquemb 13y ago
    "Today, nobody cares… But tomorrow, they will…" - Wasalu Muhammad Jaco https://www.youtube.com/watch?v=Ge4BEdyZ8bM https://www.youtube.com/watch?v=Ge4BEdyZ8bM
snowwrestler 13y ago

dmix 13y ago

I love looking up these judges track history with technology: http://en.wikipedia.org/wiki/Susan_Illston http://en.wikipedia.org/wiki/Susan_Illston > Sony v. Hotz > Currently, Illston is the presiding judge in Sony Computer Entertainment America LLC v. George Hotz, et al.,[13] in which Sony claims that Hotz's jailbreaking of the Sony PlayStation 3 violates the Digital Millennium Copyright Act. > She has granted Sony permission to track as much information as possible about those who had seen a private YouTube video about the jailbreak and to read their comments, plus obtain access to IP addresses, accounts, and other details of visitors to sites run by Geohot. The access granted by Illston extends even to those who had not downloaded the jailbreak code. So clearly her interest in information privacy is non existant.

rayiner 13y ago
The context of the order in Sony is with respect to discovery in an ongoing trial. There is very little "information privacy" with respect to the power of a court to seek out evidence in a trial, from anyone that might have it. See Elkins v. United States ("The pertinent general principle, responding to the deepest needs of society, is that society is entitled to every man's evidence."). But that's a very different issue than privacy rights in general.
- venomsnake 13y ago
  The access granted by Illston extends even to those who had not downloaded the jailbreak code. I would say this puts it a bit out of the comfort zone.
  - rayiner 13y ago
    The judge granted access to get IP addresses of visitors to his website, whether or not they downloaded the code, which would be relevant to Sony in proving how widely the information was disseminated. There is nothing unusual about this. Information relevant to a claim or defense is fair game for a court's subpoena power. If this was a murder case, that took place in an apartment, the judge would allow the prosecution to subpoena the lobby's visitor logs, even as to people who were not visiting the victim's apartment. This doesn't say anything about the judge's views on "information privacy" just about the fact that there really isn't any as against the subpoena power of a court. If the material is private in some way, it will be treated confidentially and redacted in public filings, but that's about it. That's the problem with talking about a "right to privacy" in Anglo American law: there really isn't one. There are various protections serving different purposes, but they're not unified into some overarching principle of a right not to disclose or have information disclosed. That's why the subpoena power is so much broader than the power of police to search: because the animating principle isn't "privacy" but rather the protection of criminal defendants. If it were about privacy it wouldn't make sense to e.g. treat witnesses, who can be compelled to testify, differently than defendants, who can't. Now, I'm not arguing that this is the best possible way to do things. But it's the way we have been doing it for centuries (since the Middle Ages).

rayiner 13y ago

Relevant: "Illston, who is stepping down from her post in July, said another reason for her decision is her desire not to interfere while the Ninth Circuit Court of Appeals is reviewing the constitutionality of NSLs in an unrelated case that she also oversaw. In that separate lawsuit brought by the Electronic Frontier Foundation on behalf of an unnamed telecommunications company, Illston dealt a harsh blow to the bureau's use of NSLs."

DanielBMarkham 13y ago

The sad thing here is that there is a real war on terror, no matter what you hear. There are actual violent-minded individuals that the state has an obligation to track and protect us from. But the powers granted to the state to do this are humongously broad. It's ludicrous to have the FBI be able to write letters and retrieve any of your online activity it wants -- all without you knowing about it. The IRS has even more power. It can pull your records without the NSLs. All you have to be is "interesting" to them. (Don't know if they've exercised this power yet, but it's coming) So when corporations like Google complain, out trots the assistant director to give classified testimony about all these evil folks in the world. Yes, sure. But one doesn't justify the other. I'm really happy somebody is doing something about bad guys right now. What I worry about is a few years down the road when all of this security state nonsense is used for political reasons. Some people think you have to be afraid of the government knowing too much about you. Some people think you have to be afraid of corporations knowing too much about you. Some people worry that we can easily find out too much about just about anybody (facial recognition Google glass tied back to something like Spokeo isn't far off). But it's not an either-or choice. All of these factors work together, as we see in this case. This is not going to end well.

betterunix 13y ago
"There are actual violent-minded individuals that the state has an obligation to track and protect us from." It is hard to say, given the secrecy that surrounds all this. Who are our enemies right now? Who is the government trying to protect us from? We are meant to take it as a given that there are terrorists out there and that the government is actively protecting us from them -- yet so far, we have only heard about plots that either succeeded, or that never had a realistic chance of succeeding. We need to know the danger and how it is being addressed. If the government will not even tell us who is a suspected terrorist and why they are under suspicion, we have no choice but to assume that they are abusing their power.
- diminoten 13y ago
  Do you deny the theoretical possibility that somewhere on this planet there are people actively attempting to hurt people in the US? Do you further, or alternatively deny that alerting those people to the fact that the FBI knows about them would harm the FBI's ability to stop them from harming people in the US? This should be an argument of degrees and to what extent, not an argument about the existence of a threat in the first place, or that the government should be absolutely open about everything. Such a position is quite extremist and completely impractical.

losethos 13y ago

God says... 4:13 And he said unto him, Say now unto her, Behold, thou hast been careful for us with all this care; what is to be done for thee? wouldest thou be spoken for to the king, or to the captain of the host? And she answered, I dwell among mine own people. 4:14 And he said, What then is to be done for her? And Gehazi answered, Verily she hath no child, and her husband is old. 4:15 And he said, Call her. And when he had called her, she stood in the door. 4:16 And he said, About this season, according to the time of life, thou shalt embrace a son. And she said, Nay, my lord, thou man of God, do not lie unto thine handmaid. 4:17 And the woman conceived, and bare a son at that season that Elisha had said unto her, according to the time of life. 4:18 And when the child was grown, it fell on a day, that he went out to his father to the reapers.

javajosh 13y ago

The mechanism for "watching the watchers" are the other two branches of government. One of the most worrying things I've seen is that the judicial branch seems unwilling to really oversee the executive branch. It's like judges want to abrogate their responsibility to check executive power. Are warrants really that much of a headache? Are they really that slow? Do the judges think that it matters that little to the public and the risk of harm that low?

saalweachter 13y ago
Responsibility is a headache. Even better than covering your ass is not having to. Judges should be issuing warrants for searches, and denying them when appropriate. But what if a judge appropriately denies a warrant for an overly broad search with no evidence of wrong doing on the part of those being searched, and then a building is blown up and it turns out the overly broad search would have caught the bastard? The judge acted appropriately, but he'll be crucified none-the-less. Too many people don't want to take the responsibility for doing the right thing and having bad come of it, so they'd rather do nothing, or even the wrong thing.
rayiner 13y ago
It's not because judges think warrants are a headache. It's because judges are deathly scared of being perceived as "judicial activists." The story of the judiciary of the last 20-30 years is the story of the backlash against the judiciary for liberal activism during the 1960's and 1970's, and a subsequent tendency to defer to the political branches whenever possible. As against the other two branches, all the court has is political capital. Nothing stops the President or Congress from just ignoring a court decision. The judiciary spent tremendous political capital during the civil rights era, and doesn't have enough left to battle the current era of overreaches in the name of national security. And in any case, national security was always one of the areas in which the executive branch was considered to be supreme over the other two branches.
- declan 13y ago
  Judges don't wake up in the morning and say, "Well, I would like to do the right thing and declare this surveillance unconstitutional, but there was that Brown v. Board of Education sixty years ago, and so I'm going to punt!" Especially when you have tenure for life and -- in the case of the judge mentioned in my article that started this thread -- are voluntarily retiring in a month anyway. (Even if you get removed from office, which of course never happens, you'd get 5x - 10x your salary in the private sector.) In general, lower courts follow the lead of appellate courts, which in turn follow the lead of the Supreme Court. And on constitutional issues, those justices don't like to get too far out in front of what they believe the national consensus to be. That's why you have toothless rulings like U.S. v. Lopez, a commerce clause case that conservatives initially applauded, only to have Congress slightly tweak the law without complaint from the courts.

declan 13y ago

FYI, folks, I just posted a new article about a different lawsuit in New York in which the U.S. Department of Justice is asking a asked a Manhattan judge to grant its "petition to enforce" the FBI's NSL: http://news.cnet.com/8301-13578_3-57587005-38/justice-department-tries-to-force-google-to-hand-over-user-data/ http://news.cnet.com/8301-13578_3-57587005-38/justice-depart... Discussion thread: https://news.ycombinator.com/item?id=5799541 https://news.ycombinator.com/item?id=5799541

SideburnsOfDoom 13y ago

> The sad thing here is that there is a real war on terror Yeah. A pity there isn't a war on furniture too. http://www.theatlantic.com/international/archive/2012/06/americans-are-as-likely-to-be-killed-by-their-own-furniture-as-by-terrorism/258156/ http://www.theatlantic.com/international/archive/2012/06/ame...

twoodfin 13y ago
My god those comparisons are stupid. Was the U.S. getting involved in WW2 a severe overreaction since Americans were massively more likely to die of polio or black lung than Japanese or German bombs?
- SideburnsOfDoom 13y ago
  A foreign military's bombs were intended as a prelude to invasion or destruction of the entire military capacity. A terrorist attack is a prelude to ... nothing much.
  - twoodfin 13y ago
    I don't think Japan was interested in destroying our entire military capacity, just enough to get us out of the Pacific. It wasn't a radically dissimilar aim than Al Qaeda's goal to get us out of the Islamic world, though just about everything else about the two events was different. As for a terrorist attack being "a prelude to ... nothing much", you know there was a first World Trade Center bombing, right?

bloaf 13y ago

What is to stop Google from simply giving the FBI the runaround for as long as it takes to get the legality sorted out. They could agree to give them the data and then cite technical difficulties, bureaucratic red tape, and other mistakes to stall for a year or two.

declan 13y ago
Contempt of court.

coldcode 13y ago

I wonder what would happen if Google told the FBI to bugger off and printed the NSLs on the web.

MichaelGG 13y ago
Fines, criminal charges? More importantly, the USG could find evidence against the individual, even invent something or help the target commit a crime, then "legitimately" say "See, Google is directly protecting real terrorists", which would help the USG far more than Google giving in to the NSLs.
- walshemj 13y ago
  two words Anti trust :-)
- rsync 13y ago
  I'll just leave this right here... rsync.net Warrant Canary - http://www.rsync.net/resources/notices/canary.txt http://www.rsync.net/resources/notices/canary.txt
declan 13y ago
Contempt of court. Also, even though some FBI NSL demands may improper, others would have a valid anti-terror component, and no company I'm aware of would intentionally interfere with such an investigation.

SeanDav 13y ago

The US government is missing the mark so completely, it is scary. Does anyone here think that actual, real terrorists are going to be discussing their plans using anything other than highly encrypted protocols, along with code words? These measures are absolutely of no use in catching anyone that is more intelligent than a gnat that actually wants to harm the US.

alan_cx 13y ago
I'm right with you in spirit, you should be 100% correct. But these terrorists do keep using electronic communications. I don't think any one serious and vaguely intelligent planning a major crime would do so using electronic communications. Surely every one now knows that it is iffy at best, and many believe that it is basically easily open to the authorities at a whim. But over an over again, these terrorists and/or their sympathisers do keep using electronic communications, then getting caught. Almost every case I can think of that has ended up in court and is reported on, has a big element of electronic communications evidence. It seems they are indeed as intelligent as that poor gnat, (who is probably asking why he is being bought in to it!!!). But, IIRC, a lot of the terrorists, we are told, are pretty smart people. They are not trailer trash (US) or chav scum (UK), they turn out to be degree level people, or students studying for degrees. Smart people, right? Ok, a fair number of them expect to die as a result of their terrorist action, but as we saw in Boston, that was not the case for them. But, why risk the "mission" being blown before it happens because of an electronic interception? They then risk doing the time, with out doing the crime. Worse still, it then gets used to justify the removal of various freedoms and liberty from the average citizen. And so on.... What you are saying should be 100% correct. It really should. But insanely, it isn't. Quite bizarre if you ask me.
rayiner 13y ago
> Does anyone here think that actual, real terrorists are going to be discussing their plans using anything other than highly encrypted protocols, along with code words? We keep seeing that a lot of terrorists are quite amateurish.

donrememberpass 13y ago

Is this a good time already to start building service clones from other countries that have a big stamp on it: "FBI-SAFE! 100% guarantee there's no ~FBI CRAMPS~ on your private communication, photos, locations, likes, etc we respect your privacy and we care for the future of mankind! Want to live in dystopian 1984 future in just about 10 years? We don't, too! (service hosted and maintained in Brazil)"

walshemj 13y ago
So the CIA station officer has a word with his counterpart - hint south Americas security services don't exactly have a shining record.
- donrememberpass 13y ago
  Still, that's not the point. The point is that all this madness is so fragile and stupid that it can give lever for digital businesses overseas to have competitive edge on yours by both not being forced to waste resources building backdoors and surveillance into their systems(which also make them less secure) and also by making them have an advantage no USA business will be allowed to have ever, which is to offer privacy. It's probably what MEGA was thinking. Now when and if this happens the FBI will really see what's 'going dark'. Of course, they have plenty of means to try influencing things their ways but it's utterly unmanageable, if they choose to hack the servers and news break that US Government agencies are hacking into legitimate businesses overseas, it's not gonna sit well with both governments(Brazil, for example, is historically a pacific country that tries to not interfere with anyone, how will you make it into a terrorist country?) and to the general population, they can also do it politically but this won't sit well with the country's population too and are sure to have 'anti-american' vibes increasing, besides that, each country has it's culture and takes on civil liberties(and the chopping of them) and also it's own interests and industries it allows to influence it's politics, in Brazil that would be Meat, Soil, Mining, Cars industries... and if allowing privacy(or, at least, keeping civilian basic constitutional rights) ends up helping the economy too then it may also be a choice to be considered to support it too, right? Dunno if Hollywood bullshit will stick everywhere, and going heavy-handed on other countries matters are sure to spread the shit, there's plenty of countries in the world.

joyeuse6701 13y ago

I fail to see why an NSL is even necessary when a warrant should suffice?

shitlord 13y ago

What's with all the knee-jerk reactionary responses (and with all of them repeating roughly the same thing)? Under our legal system, it really shouldn't come as a shock to see how things turned out.