4 ms·

Do civilian webmasters or Dev/Ops personnel typically retain all the data they transmit or receive along with the metadata as well? That's what I'm still confu

by mpyne 12y ago

Do civilian webmasters or Dev/Ops personnel typically retain all the data they transmit or receive along with the metadata as well? That's what I'm still confused about here; why couldn't the court order the NSA to retain some set of metadata on the 702 programs they are running? Why does this entire argument revolve around the binary decision of all possibly relevant data and metadata or none of it? Even if NSA has to filter heaps and heaps of metadata (which is the "data" for their system), they could easily retain summary information of what data was filtered, whether it's filtered by subnet, identifier, etc. As made clear in the past year by both NSA and EFF, metadata can reveal a lot about the activities of a person (or in this case, an Agency). I think it would make more sense for the EFF to push for specific items to be retained by NSA for civil discovery instead of "all NSA intake via 702".

anigbrowl 12y ago
Because Rule 26 of the Federal Rules for Civil Procedure, which governs discovery, specifically rule 26(b)(1) is quite broad in scope, and even sanitizing it of non-privileged information (most likely classified data in this context) could allow outside parties to make structural inferences that would compromise intelligence gathering activities. As a cheesy example, suppose I have files that note the existence of Alice, Bob, Carol, and Donald, and suppose furthermore that I suspect Carol of being a spy. You object to my surveillance activities and ask discovery of same. My evidence that Carol is a spy may be obviously privileged, but if I give you my files on Alice, Bob, and Donald it's easy to guess that I view Carol as somehow different from the others. Now, I could in theory furnish minimal information on Carol that would not clearly distinguish her from the other three, but that puts the Executive Branch in the awkward position of making judgments about what degree of truth it is appropriate to provide, which is the sort of thing that is properly the province of the Judicial Branch. So the Executive Branch argues that compliance would necessarily mean an abrogation of Judicial Branch functions if it is not to impair he Executive Branch's lawful security function, and now you've got a separation-of-powers problem. What happens in many cases and may happen in this one, is that if there isn't a clear legal principle which guides the balance of the interests the Court may review the material in question and decide exactly what should be handed over and what can be retained, which decision might then be appealed to higher court by one party or the other.
- mpyne 12y ago
  Good points, all. It would probably be easier to argue about particulars if EFF had suggested any (though maybe they've made such feelers already in private).

by mpyne 12y ago

anigbrowl 12y ago

Because Rule 26 of the Federal Rules for Civil Procedure, which governs discovery, specifically rule 26(b)(1) is quite broad in scope, and even sanitizing it of non-privileged information (most likely classified data in this context) could allow outside parties to make structural inferences that would compromise intelligence gathering activities. As a cheesy example, suppose I have files that note the existence of Alice, Bob, Carol, and Donald, and suppose furthermore that I suspect Carol of being a spy. You object to my surveillance activities and ask discovery of same. My evidence that Carol is a spy may be obviously privileged, but if I give you my files on Alice, Bob, and Donald it's easy to guess that I view Carol as somehow different from the others. Now, I could in theory furnish minimal information on Carol that would not clearly distinguish her from the other three, but that puts the Executive Branch in the awkward position of making judgments about what degree of truth it is appropriate to provide, which is the sort of thing that is properly the province of the Judicial Branch. So the Executive Branch argues that compliance would necessarily mean an abrogation of Judicial Branch functions if it is not to impair he Executive Branch's lawful security function, and now you've got a separation-of-powers problem. What happens in many cases and may happen in this one, is that if there isn't a clear legal principle which guides the balance of the interests the Court may review the material in question and decide exactly what should be handed over and what can be retained, which decision might then be appealed to higher court by one party or the other.

mpyne 12y ago
Good points, all. It would probably be easier to argue about particulars if EFF had suggested any (though maybe they've made such feelers already in private).