10 ms·

EFF Asks Judge to Rule NSA Internet Backbone Spying Techniques Unconstitutional

292 points by rosser 12y ago

SoftwareMaven 12y ago
I can't imagine a scenario where this could be viewed as not infringing, yet I'm not holding my breath. Even if it were found to be infringing, I have little hope the NSA would stop dragnet-like behavior. I keep hoping the water will get shut off to the datacenters across the valley.
- wdewind 12y ago
  The legal justification is that it is the same as police setting up a road block and reading license plate numbers as traffic flows by, or in the case of packet inspection actually doing "drunk driving" stops, which are legal. Edit: I'm actually wrong here, I looked up the source I originally read this on and realized I misinterpreted it. It's only one possible answer, not the answer: there is no case law, it hasn't been tested yet.
  - ps4fanboy 12y ago
    It is more like taking photos of the contents of everyone's cars and then using a computer to look for weed.
    - deleted 12y ago
      [deleted]
- finnn 12y ago
  Should put more pressure on the water company. Power too.
iandanforth 12y ago
Has standing been granted? That's been a huge stumbling block for these cases in the past.
- magicalist 12y ago
  Yes it has. A district court originally ruled that Jewel et al didn't have standing, but the 9th Circuit disagreed[1], ruling that the allegation was a concrete and particular injury that was easily traceable to the NSA's actions. This was also well before Snowden's revelations, which only added (significantly) more evidence to the EFF's case. [1] http://cdn.ca9.uscourts.gov/datastore/opinions/2011/12/29/10-15616.pdf http://cdn.ca9.uscourts.gov/datastore/opinions/2011/12/29/10...
cowbell 12y ago
Also in violation of international laws and treaties signed by the US. http://www.vox.com/2014/7/17/5910299/5-ways-obama-may-have-violated-human-rights-according-to-a-un-report http://www.vox.com/2014/7/17/5910299/5-ways-obama-may-have-v...
dm2 12y ago
I'd argue that the NSA needs to retain limited spying capabilities, but with very very strict control of how the data is used and stored. Dragnet surveillance is not acceptable or necessary. It's the sharing of this information that should be dramatically limited. Other government agencies (at federal, state, and local levels) need to be prevented from actively spying on citizens. Corporations also need to be prevented from spying on citizens, they are just as bad and just as careless with data. I'd love some discussion on this topic, please convince me I'm wrong. Of course there needs to be more regulation on the long-term storage of this data (1-2 years max seems sufficient) and the sharing of this data (absolutely no sharing with other agencies unless it's a major threat to national security) and absolutely no sharing any access of these databases with foreign governments. The NSA plays a critical role in keeping the country safe. It's becoming easier and easier for crazy, misguided, and foreign enemies to harm the nation and it's citizens, somebody has to protect us. Other countries are not going to give up their NSA equivalents and eliminating the NSA would cripple US intelligence. Knowledge is power is especially true when dealing with the scale that governments deal with. The fact is that the US is one of the prime targets for terrorism, both independent and foreign nation sponsored.
- cowbell 12y ago
  I'd argue that this behavior is in violation of international law as well as the constitution. http://gigaom.com/2014/07/16/un-human-rights-report-blows-apart-governments-pro-surveillance-arguments/ http://gigaom.com/2014/07/16/un-human-rights-report-blows-ap...
  - dm2 12y ago
    Things have changed dramatically since the constitution was conceived. Nobody predicted the internet, WMDs (which could easily be smuggled into the country, they're not just movie fiction), and other nations having spying capabilities. My main thought is that the US must stay ahead of other nations intelligence agencies. Other than protecting myself, my family, and the country I don't really have a good reason for this though.
    - 12y ago
rustyconover 12y ago
I think we should all look at the example of Mohammad Ali's appeals to the Supreme Court regarding charges of dodging the draft. In a documentary about Ali, I recall the one of the supreme court justice's clerks going back through the record, and it turned out the Ali's beliefs (being a member of the Nation of Islam) did qualify him as a conscious objector much like the Seventh Day Adventists. Before this point the courts has ruled the N.o.I. didn't deserve the same treatment for its members. Ruling for Ali posed a large problem for the Supreme Court, if they ruled in a way that set a large precedent that many people could claim they were objectors the country would have huge problems feeding the established "war machine" (the draft). So the justices went back through the record and found a technicality, as such they found a way Ali wouldn't be found guilty of dodging the draft due to a procedural error. See http://en.wikipedia.org/wiki/Clay_v._United_States http://en.wikipedia.org/wiki/Clay_v._United_States for all the details. I expect if the court comes to review the facts in this matter they will either be impeded in succeeding due to national security concerns or find a way to decide for the plaintiffs in the smallest possible way to not upset the established order. Very rarely are judicial decisions groundbreaking in precedent. They are more like the tree trimmers of legislation and executive privilege, they typically only trim branches not cut down entire trunks as this ruling would possibly do for Internet surveillance. So this the world we live in, encrypt your life.
- dan_bk 12y ago
  > encrypt your life Absolutely. The problem is: communication is a "network good", you don't do it alone. How do you want the "Facebook people" to understand the gravity of the situation? We all do communicate with Facebook people.
  - Ancorehraq 12y ago
    Perhaps the situation isn't grave. After all, despite EFF's best efforts, NSA is no more than a casual meme among all the Facebook people.
  - DanBC 12y ago
    I genuinely do not understand conversations where people talk about the evils of mass government surveillance and then accept the evils of mass corporate surveillance. GCHQ supposedly operates under UK law and needs warrants to search their huge databases and operates under the oversight of elected representatives. While that's unacceptable it's more regulated than the chaos of corporate data misuse.
suprgeek 12y ago
One of the points that I hope will be fully put to the sword is the tortured definition that the NSA & Govt. uses of spying. That argument is phrased approximately as: We are making limited digital copies of stuff (-possibly all internet traffic) that is stored in encrypted form and not actually "reading" it. It is only accessed in a much more limited & narrow context for investigations using "minimization" techniques that respect the fourth amendment. So we are not really spying in an unconstitutional manner... This is almost sure to come up if the case proceeds without being torpedoed by the national secrets defense..and I hope the EFF absolutely prevails in crushing this malarkey.
- pdkl95 12y ago
  https://www.eff.org/files/2014/07/24/backbone-3c-color.jpg https://www.eff.org/files/2014/07/24/backbone-3c-color.jpg Given this graphic in the article, I would guess this the main topic the EFF is pursuing. While I can see how the NSA's word games can confuse the issue regarding searching, what I've never understood is how nobody seems to notice that those same word games admit to seizing evidence. It's as if everybody forgot the 4th Amendment said "...unreasonable searches and seizures..." or something.
  - suprgeek 12y ago
    Same tortured definition: Copying(but not depriving you of it) without accessing (reading) is technically not seizing
    - swombat 12y ago
      Right, so let's agree to a system when the government will open every letter, scan the contents, save them to a database, but not read them until after they've run some analysis and determined that your specific letter is of interest. That is precisely what they're doing here, except on a much larger scale than the post office could ever fathom. It is shocking to compare this to the past. I've just finished reading "Team of Rivals", a biography of Lincoln, and the amount of deeply sensitive stuff that these high-level politicians shared in personal letters to their loved ones and colleagues is astonishing. No politician today would ever put such stuff in writing - if it got into the wrong hands, it could cause incalculable damage to their reputations, relationships, etc. Those guys were being entirely honest in hand-written letters that were delivered days away in different states by a very rudimentary postal system. They clearly had complete trust in the sanctity of the privacy of their letters. This level of trust in the US government (or any, in fact) is pretty much unthinkable today. We (the people) have lost a lot of valuable ground here.

292 points by rosser 12y ago

I can't imagine a scenario where this could be viewed as not infringing, yet I'm not holding my breath. Even if it were found to be infringing, I have little hope the NSA would stop dragnet-like behavior. I keep hoping the water will get shut off to the datacenters across the valley.

wdewind 12y ago
The legal justification is that it is the same as police setting up a road block and reading license plate numbers as traffic flows by, or in the case of packet inspection actually doing "drunk driving" stops, which are legal. Edit: I'm actually wrong here, I looked up the source I originally read this on and realized I misinterpreted it. It's only one possible answer, not the answer: there is no case law, it hasn't been tested yet.
- ps4fanboy 12y ago
  It is more like taking photos of the contents of everyone's cars and then using a computer to look for weed.
  - deleted 12y ago
    [deleted]
finnn 12y ago
Should put more pressure on the water company. Power too.

iandanforth 12y ago

Has standing been granted? That's been a huge stumbling block for these cases in the past.

magicalist 12y ago
Yes it has. A district court originally ruled that Jewel et al didn't have standing, but the 9th Circuit disagreed[1], ruling that the allegation was a concrete and particular injury that was easily traceable to the NSA's actions. This was also well before Snowden's revelations, which only added (significantly) more evidence to the EFF's case. [1] http://cdn.ca9.uscourts.gov/datastore/opinions/2011/12/29/10-15616.pdf http://cdn.ca9.uscourts.gov/datastore/opinions/2011/12/29/10...

cowbell 12y ago

Also in violation of international laws and treaties signed by the US. http://www.vox.com/2014/7/17/5910299/5-ways-obama-may-have-violated-human-rights-according-to-a-un-report http://www.vox.com/2014/7/17/5910299/5-ways-obama-may-have-v...

dm2 12y ago

I'd argue that the NSA needs to retain limited spying capabilities, but with very very strict control of how the data is used and stored. Dragnet surveillance is not acceptable or necessary. It's the sharing of this information that should be dramatically limited. Other government agencies (at federal, state, and local levels) need to be prevented from actively spying on citizens. Corporations also need to be prevented from spying on citizens, they are just as bad and just as careless with data. I'd love some discussion on this topic, please convince me I'm wrong. Of course there needs to be more regulation on the long-term storage of this data (1-2 years max seems sufficient) and the sharing of this data (absolutely no sharing with other agencies unless it's a major threat to national security) and absolutely no sharing any access of these databases with foreign governments. The NSA plays a critical role in keeping the country safe. It's becoming easier and easier for crazy, misguided, and foreign enemies to harm the nation and it's citizens, somebody has to protect us. Other countries are not going to give up their NSA equivalents and eliminating the NSA would cripple US intelligence. Knowledge is power is especially true when dealing with the scale that governments deal with. The fact is that the US is one of the prime targets for terrorism, both independent and foreign nation sponsored.

cowbell 12y ago
I'd argue that this behavior is in violation of international law as well as the constitution. http://gigaom.com/2014/07/16/un-human-rights-report-blows-apart-governments-pro-surveillance-arguments/ http://gigaom.com/2014/07/16/un-human-rights-report-blows-ap...
- dm2 12y ago
  Things have changed dramatically since the constitution was conceived. Nobody predicted the internet, WMDs (which could easily be smuggled into the country, they're not just movie fiction), and other nations having spying capabilities. My main thought is that the US must stay ahead of other nations intelligence agencies. Other than protecting myself, my family, and the country I don't really have a good reason for this though.
  - 12y ago

rustyconover 12y ago

I think we should all look at the example of Mohammad Ali's appeals to the Supreme Court regarding charges of dodging the draft. In a documentary about Ali, I recall the one of the supreme court justice's clerks going back through the record, and it turned out the Ali's beliefs (being a member of the Nation of Islam) did qualify him as a conscious objector much like the Seventh Day Adventists. Before this point the courts has ruled the N.o.I. didn't deserve the same treatment for its members. Ruling for Ali posed a large problem for the Supreme Court, if they ruled in a way that set a large precedent that many people could claim they were objectors the country would have huge problems feeding the established "war machine" (the draft). So the justices went back through the record and found a technicality, as such they found a way Ali wouldn't be found guilty of dodging the draft due to a procedural error. See http://en.wikipedia.org/wiki/Clay_v._United_States http://en.wikipedia.org/wiki/Clay_v._United_States for all the details. I expect if the court comes to review the facts in this matter they will either be impeded in succeeding due to national security concerns or find a way to decide for the plaintiffs in the smallest possible way to not upset the established order. Very rarely are judicial decisions groundbreaking in precedent. They are more like the tree trimmers of legislation and executive privilege, they typically only trim branches not cut down entire trunks as this ruling would possibly do for Internet surveillance. So this the world we live in, encrypt your life.

dan_bk 12y ago
> encrypt your life Absolutely. The problem is: communication is a "network good", you don't do it alone. How do you want the "Facebook people" to understand the gravity of the situation? We all do communicate with Facebook people.
- Ancorehraq 12y ago
  Perhaps the situation isn't grave. After all, despite EFF's best efforts, NSA is no more than a casual meme among all the Facebook people.
- DanBC 12y ago
  I genuinely do not understand conversations where people talk about the evils of mass government surveillance and then accept the evils of mass corporate surveillance. GCHQ supposedly operates under UK law and needs warrants to search their huge databases and operates under the oversight of elected representatives. While that's unacceptable it's more regulated than the chaos of corporate data misuse.

suprgeek 12y ago

One of the points that I hope will be fully put to the sword is the tortured definition that the NSA & Govt. uses of spying. That argument is phrased approximately as: We are making limited digital copies of stuff (-possibly all internet traffic) that is stored in encrypted form and not actually "reading" it. It is only accessed in a much more limited & narrow context for investigations using "minimization" techniques that respect the fourth amendment. So we are not really spying in an unconstitutional manner... This is almost sure to come up if the case proceeds without being torpedoed by the national secrets defense..and I hope the EFF absolutely prevails in crushing this malarkey.

pdkl95 12y ago
https://www.eff.org/files/2014/07/24/backbone-3c-color.jpg https://www.eff.org/files/2014/07/24/backbone-3c-color.jpg Given this graphic in the article, I would guess this the main topic the EFF is pursuing. While I can see how the NSA's word games can confuse the issue regarding searching, what I've never understood is how nobody seems to notice that those same word games admit to seizing evidence. It's as if everybody forgot the 4th Amendment said "...unreasonable searches and seizures..." or something.
- suprgeek 12y ago
  Same tortured definition: Copying(but not depriving you of it) without accessing (reading) is technically not seizing
  - swombat 12y ago
    Right, so let's agree to a system when the government will open every letter, scan the contents, save them to a database, but not read them until after they've run some analysis and determined that your specific letter is of interest. That is precisely what they're doing here, except on a much larger scale than the post office could ever fathom. It is shocking to compare this to the past. I've just finished reading "Team of Rivals", a biography of Lincoln, and the amount of deeply sensitive stuff that these high-level politicians shared in personal letters to their loved ones and colleagues is astonishing. No politician today would ever put such stuff in writing - if it got into the wrong hands, it could cause incalculable damage to their reputations, relationships, etc. Those guys were being entirely honest in hand-written letters that were delivered days away in different states by a very rudimentary postal system. They clearly had complete trust in the sanctity of the privacy of their letters. This level of trust in the US government (or any, in fact) is pretty much unthinkable today. We (the people) have lost a lot of valuable ground here.