5 ms·

When NSLs have been challenged in court, the government has withdrawn

179 points by diafygi 13y ago

diafygi 13y ago
This article is likely not updated with the fourth company: Google, who recently lost their initial challenge. http://news.cnet.com/8301-13578_3-57587003-38/judge-orders-google-to-comply-with-fbis-secret-nsl-demands/ http://news.cnet.com/8301-13578_3-57587003-38/judge-orders-g... However, > It wasn't a complete win for the Justice Department, however: Illston all but invited Google to try again, stressing that the company has only raised broad arguments, not ones "specific to the 19 NSLs at issue." She also reserved judgment on two of the 19 NSLs, saying she wanted the government to "provide further information" prior to making a decision. and > 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. So it seems that we'll have to wait for the Ninth Circuit to declare NSLs unconstitutional before deciding if Google's case counts as a loss.
- notimetorelax 13y ago
  OT: There should be some rule about publishing articles without date on them.
  - gridmaths 13y ago
    this always annoys me.. common practice in science papers, which is weird as the citations invariably have date.
  - heresthedate 13y ago
    For what it's worth, I was able to track down the date via one of their RSS feeds: https://www.aclunc.org/home/features_aclu_of_northern_california.xml https://www.aclunc.org/home/features_aclu_of_northern_califo... National Security Letters 05/06/2008 03:05 PM
einhverfr 13y ago
I have wondered about this. The gag orders are somewhat problematic but can they mandate that one actively lies about having received a NSL? Suppose I put up on my startup's web page (http://www.efficito.com http://www.efficito.com), "we have not received any NSL's and pledge to fight any we get." Suppose we always end press releases with such a promise. Suppose we get one one day, so when we do, we change "We have not received" to "we cannot confirm or deny whether we have received." Close observers will note the shift and note we have moved from a flat denial to a refusal to disclose. I have trouble imagining that such could be prohibited because if it is, it either ends up being a mandatory lie and compelled speech or it ends up being prior restraint even before the NSL is issued. Not sure I would risk my business on it though.
- cmsmith 13y ago
  That is the exact idea behind this [1]. [1] http://www.rsync.net/resources/notices/canary.txt http://www.rsync.net/resources/notices/canary.txt
- DASD 13y ago
  I've just submitted a post on this. What you're referring to is called a warrant canary. https://news.ycombinator.com/item?id=5837351 https://news.ycombinator.com/item?id=5837351
- rsync 13y ago
  We have been operating such a "warrant canary" since 2006: http://www.rsync.net/resources/notices/canary.txt http://www.rsync.net/resources/notices/canary.txt Some additional details - we update the document weekly, and include a non-vague news item from the financial press that we could not have known about - this proves that these are not being pre-populated, or published automatically, etc. Further, we replicate these to our non-US (Zurich, Hong Kong) locations so that multiple court jurisdictions are required to coerce them to be created falsely. I wonder how the canton of Zurich would rule in such a case ?
  - e12e 13y ago
    It is a great effort. But AFAIK -- actually putting it to use -- would put you in danger of whatever punishment there would be for not complying. I suppose, in the most extreme of cases, death (presumably for "treason"). More likely some form of "aiding and abetting" or "profiting from" (or even "conspiring to commit..."). As Zurich's interest's align more closely with the US than Hong Kong, I think you'd stand a better chance of Hong Kong refusing, than Zurich. The most likely scenario would be to put pressure on one or several members with access to "put back" the warranty canaries, if at all feasible (or just putting pressure on the only one's that were told of the warrant in the first place, effectively forcing them to lie to their colleagues as well. A national intelligence organisation can be a very scary thing disobey). I still respect your willingness to have such a canary in place -- but in the event that is truly needed, I doubt it's effectiveness (I would love to be proven wrong, though).
JacksonGariety 13y ago
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declan 13y ago
I think the ACLU's article was correct when it was written, probably a few years ago. It is no longer correct. In fact, DOJ initiated the second NSL lawsuit. That's the opposite of "withdraw[ing]." (By way of background, I disclosed the existence of the SF NSL court order last week and also disclosed the existence of the NYC NSL lawsuit.)
fnordfnordfnord 13y ago
Well, of course the gov't withdraws. Even if the NSL is legit, the gov't should probably withdraw for the simple reason of protecting their program and their investigation from scrutiny. They already have the information they need. And, they can simply re-file the NSL later if that becomes necessary. Now, consider the gov't's probable reaction when the NSL isn't legit, and they know it (I suspect this is the case for the majority of NSL's). The best strategy is still to withdraw the NSL, and evade scrutiny as much as possible.

179 points by diafygi 13y ago

This article is likely not updated with the fourth company: Google, who recently lost their initial challenge. http://news.cnet.com/8301-13578_3-57587003-38/judge-orders-google-to-comply-with-fbis-secret-nsl-demands/ http://news.cnet.com/8301-13578_3-57587003-38/judge-orders-g... However, > It wasn't a complete win for the Justice Department, however: Illston all but invited Google to try again, stressing that the company has only raised broad arguments, not ones "specific to the 19 NSLs at issue." She also reserved judgment on two of the 19 NSLs, saying she wanted the government to "provide further information" prior to making a decision. and > 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. So it seems that we'll have to wait for the Ninth Circuit to declare NSLs unconstitutional before deciding if Google's case counts as a loss.

notimetorelax 13y ago
OT: There should be some rule about publishing articles without date on them.
- gridmaths 13y ago
  this always annoys me.. common practice in science papers, which is weird as the citations invariably have date.
- heresthedate 13y ago
  For what it's worth, I was able to track down the date via one of their RSS feeds: https://www.aclunc.org/home/features_aclu_of_northern_california.xml https://www.aclunc.org/home/features_aclu_of_northern_califo... National Security Letters 05/06/2008 03:05 PM

einhverfr 13y ago

I have wondered about this. The gag orders are somewhat problematic but can they mandate that one actively lies about having received a NSL? Suppose I put up on my startup's web page (http://www.efficito.com http://www.efficito.com), "we have not received any NSL's and pledge to fight any we get." Suppose we always end press releases with such a promise. Suppose we get one one day, so when we do, we change "We have not received" to "we cannot confirm or deny whether we have received." Close observers will note the shift and note we have moved from a flat denial to a refusal to disclose. I have trouble imagining that such could be prohibited because if it is, it either ends up being a mandatory lie and compelled speech or it ends up being prior restraint even before the NSL is issued. Not sure I would risk my business on it though.

cmsmith 13y ago
That is the exact idea behind this [1]. [1] http://www.rsync.net/resources/notices/canary.txt http://www.rsync.net/resources/notices/canary.txt
DASD 13y ago
I've just submitted a post on this. What you're referring to is called a warrant canary. https://news.ycombinator.com/item?id=5837351 https://news.ycombinator.com/item?id=5837351
rsync 13y ago
We have been operating such a "warrant canary" since 2006: http://www.rsync.net/resources/notices/canary.txt http://www.rsync.net/resources/notices/canary.txt Some additional details - we update the document weekly, and include a non-vague news item from the financial press that we could not have known about - this proves that these are not being pre-populated, or published automatically, etc. Further, we replicate these to our non-US (Zurich, Hong Kong) locations so that multiple court jurisdictions are required to coerce them to be created falsely. I wonder how the canton of Zurich would rule in such a case ?
- e12e 13y ago
  It is a great effort. But AFAIK -- actually putting it to use -- would put you in danger of whatever punishment there would be for not complying. I suppose, in the most extreme of cases, death (presumably for "treason"). More likely some form of "aiding and abetting" or "profiting from" (or even "conspiring to commit..."). As Zurich's interest's align more closely with the US than Hong Kong, I think you'd stand a better chance of Hong Kong refusing, than Zurich. The most likely scenario would be to put pressure on one or several members with access to "put back" the warranty canaries, if at all feasible (or just putting pressure on the only one's that were told of the warrant in the first place, effectively forcing them to lie to their colleagues as well. A national intelligence organisation can be a very scary thing disobey). I still respect your willingness to have such a canary in place -- but in the event that is truly needed, I doubt it's effectiveness (I would love to be proven wrong, though).

JacksonGariety 13y ago

SHARE THIS ON FACEBOOK

declan 13y ago

I think the ACLU's article was correct when it was written, probably a few years ago. It is no longer correct. In fact, DOJ initiated the second NSL lawsuit. That's the opposite of "withdraw[ing]." (By way of background, I disclosed the existence of the SF NSL court order last week and also disclosed the existence of the NYC NSL lawsuit.)

fnordfnordfnord 13y ago

Well, of course the gov't withdraws. Even if the NSL is legit, the gov't should probably withdraw for the simple reason of protecting their program and their investigation from scrutiny. They already have the information they need. And, they can simply re-file the NSL later if that becomes necessary. Now, consider the gov't's probable reaction when the NSL isn't legit, and they know it (I suspect this is the case for the majority of NSL's). The best strategy is still to withdraw the NSL, and evade scrutiny as much as possible.