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US Sought Permission to Change Historical Record of a Public Court Proceeding
- philfreo 12y ago> The transcript of a court proceeding is the historical record of that event, what will exist and inform the public long after the persons involved are gone. The government's attempt to change this history was unprecedented. We could find no example of where a court had granted such a remedy or even where such a request had been made. This was another example of the government's attempt to shroud in secrecy both its own actions, as well as the challenges to those actions. Reminder to donate to the EFF: https://supporters.eff.org/donate https://supporters.eff.org/donate
- grecy 12y agoThe article specifically pointed out the government wanted to make the change secretly, so that nobody would ever know it was done: when it was over, the government secretly, and surprisingly sought permission to “remove” classified information from the transcript, and even indicated that it wanted to do so secretly, so the public could never even know that they had done so. So if this has ever been done in the past, there is of course no record of it.
- CWuestefeld 12y agoThe government's attempt to change this history was unprecedented. We could find no example of where a court had granted such a remedy Of course, the very nature of such a change renders it undiscoverable. Who knows how many records have been changed and records of that change been expunged.
- indrax 12y agoThe fact that they said this, without pointing out that it was unknowable, makes me wonder if they know of another request that they can't talk about.
- dreamweapon 12y agoEverything faded into mist. The past was erased, the erasure was forgotten, the lie became truth. -- George Orwell, 1984, Part 1, Chapter 7
- seanflyon 12y agoThose who control the present, control the past and those who control the past control the future.
- angersock 12y agoIt's great to see the government finally adopting more practices from recent work in software development. You know, like git rebase and amending history.
- JoshTriplett 12y agoIf this were done using git rebase, anyone with their own copy of the repository would quickly notice the change and have a full record of the old and new versions.
- arethuza 12y agoFrom a political perspective then your local repo is wrong, always was wrong and owning it an act of subversion ;-)
- phy6 12y agoShould have waited for gitcummulo, so you wouldn't have permissions to know there was a rebase.
- snorrah 12y agoWhat
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- javajosh 12y agoAwesome job, EFF. You are doing important work. Curious: we have laws against "attempted murder", are there any laws against "attempted illegal redaction of court proceedings" that can be applied here? My concern is that there is no deterrent to this being attempted again, perhaps in a context that is less visible, and less ably defended, than in this case.
- mjn 12y agoIn general no, parties have pretty wide latitude to file motions. If the law doesn't permit the request, the remedy is just that the court rejects it. That's the basis of the adversarial system; parties are expected to try to make any argument in their favor they can possibly come up with, and the court's job (or jury's job) is to weigh them. So it's disfavored to punish someone who makes a losing argument beyond just the fact that they lose the argument. In rare cases an attorney can be sanctioned for lawyering way out of line ("Rule 11 sanctions"), but that usually requires a pattern of over-the-top behavior, ignoring the court's instructions, repeated frivolous arguments, etc.
- javajosh 12y agoThat's too bad. I would assume that the USG would be held to a higher standard - but IANAL.
- gohrt 12y agoThe government does plenty of plainly illegal behavior, which we should work on fighting, before worrying about whether "grey area" behavior should be legal.
- couchand 12y agoMinor clarification: the role of a jury is not to rule on the merit of a motion such as this, but rather to decide the facts of a case. The presiding judge is responsible for deciding the law.
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- mjn 12y agoTangential question: reading the transcript, I'm surprised that two of the three parties' lawyers are attending the court session via speakerphone. Is that common?
- couchand 12y agoYes, it is fairly common. Keep in mind that this was a hearing on an emergency motion, so it was probably scheduled fairly quickly. There is significant variation in the scale of legal proceedings: full-blown trials pretty much require the physical presence of counsel, but early stage hearings are frequently conducted by phone.
- revelation 12y agoThe transcript is a good read, too. The EFF explains how the NSA grabs data wholesale from fiber optic cables (step 1) and then filters it according to selectors (step 2). This is the governments rebuke: > IN FACT, THE SUPREME COURT DELINEATED PRECISELY HOW > THE PROGRAM OPERATES. AND IT IS A TARGETED PROGRAM. IT IS A > PROGRAM THAT IS TARGETED AT SPECIFIC SELECTORS, THAT IS PHONE > NUMBERS OR EMAIL ACCOUNTS. This person doesn't have an understanding of how selectors work. He doesn't realize that you can't decide if something is a phone number or an email account until you have already taken a look at it. This is the level on which they argue. They trick people into thinking that you can put a bunch of selectors in one bag and have only matching communications magically appear in a second one, circumventing the obvious constutional issue of collecting everything. But gravity is still in effect, so anyone with a basic understanding realizes that you can't get to (2) without having taken step (1). > IT IS NOT BULK META DATA COLLECTION. > IT'S A TARGETED COMMUNICATION SURVEILLANCE PROGRAM > AGAINST NON U.S. PERSONS LOCATED OUTSIDE THE UNITED STATES. You're not sure if he is just ignorant or feigning ignorance. And the problem is that it might just work. It brings back memories to the Java APIs case where the career lawyer argued a trivial three line Java code Google copied verbatim constituted copyright infringement. He didn't know, of course, what he was talking about. There was no mental framework for him to realize the sheer stupidity on display.
- dchichkov 12y agoI think that both sides have perfect understanding that STEP TWO (filtering/targeting) is technically impossible without doing the STEP ONE (bulk traffic capture). And that bulk traffic capture (dragnet surveillance) is illegal under the existing rules. And yes, it is a very entertaining read: > WE'VE SAID THIS FROM THE BEGINNING, YOUR HONOR. > IT'S A SOMEWHAT AWKWARD POSITION FOR US TO BE STANDING > HERE TRYING TO ARGUE THE GOVERNMENT HAS TO KEEP > INFORMATION WE DIDN'T THINK THEY SHOULD COLLECT IN THE > FIRST PLACE. ... yet another $25 donation just went out your way, EFF. Keep it up ;) edit: > THE COURT: MY VACUUM THEORY THAT NATURE AND LAWYERS HATE A VACUUM WHEN GIVEN A CHANCE TO -- > MS. COHN: IT'S TRUE. MY CAT HATES THE VACUUM, TOO.
- rtpg 12y agoI really don't think the "pre-filter collection" question can be as non-ambiguously answered as you claim. If the gov't had a guy at the post office collecting specific people's mail, would the fact that he's looking at the address on all the mail be considered a search? Even if on a technical level at one point all traffic is on RAM on some machine of the NSA, if they're not actually keeping it or looking at it in any real sense (beyond specific meta-data stuff that isn't stored), then I find it hard to consider that equivalent to actually storing the trafic. The argument that they could easily switch it to do wholesale collection is pretty irrelevant in the courts.
- RexRollman 12y agoWhat kills me is that this is all happening under the leadership of a president who once taught constitutional law. If someone with his background won't stop this kind of thing from happening, who will?
- sunshinerag 12y agoDid he say he is going to uphold constitutional law? Reading does not imply respect and defence of the same.
- mcantelon 12y agoIf Obama was inclined to stop this sort of thing he wouldn't have ended up a presidential candidate in the first place.
- TeMPOraL 12y agoThat's true and this is a very important point. The system selects against people who would disturb the status quo too much - therefore if you get to the point of being elected president, you are most likely compliant enough and so deep in various deals that you don't have much choice except than to do what various power groups want you to.
- enraged_camel 12y agoThe sad part is that disturbing the status quo was Obama's campaign platform. "Change," he called it.
- rapind 12y agoIf a politician ever runs with a campaign branded "Irony" they will get my vote. Even if they are completely mad.
- couchand 12y agoHow about satire? You could support Die Partei [0]. [0]: http://www.economist.com/news/europe/21610332-election-satirical-party-european-parliament-speaks-volumes-curvy-cannons-and http://www.economist.com/news/europe/21610332-election-satir...
- gohrt 12y ago"US Sought Permission" ? That's an odd phrasing. Who did the US ask?
- jonah 12y agoWe need a service like this[1] to track the changes from all courts, not just the SCOTUS[2]. [1] http://www.dailydot.com/news/twitter-tracks-supreme-court-changes/ http://www.dailydot.com/news/twitter-tracks-supreme-court-ch... [2] http://www.nytimes.com/2014/05/25/us/final-word-on-us-law-isnt-supreme-court-keeps-editing.html http://www.nytimes.com/2014/05/25/us/final-word-on-us-law-is...
- belovedeagle 12y agoThat wouldn't help in this instance: you can't track changes in a document you don't have. The court documents were not released to the public until after all of this happened; that was the point.
- factchecka 12y agoLoving the url for Shubert v. Obama: https://www.eff.org/cases/shubert-v-bush https://www.eff.org/cases/shubert-v-bush
- Kesseki 12y agoThat's because it was originally filed when Bush was in office. When you sue a government official in his or her official capacity, the caption (sometimes, but especially on appeal) gets updated when the office changes hands.
- zecho 12y agoHistorical URL. Bush was the original president when first filed.
- shmerl 12y agoPolice state mentality in action.
- natch 12y agoThanks EFF for fighting this. >The government's attempt to change this history was unprecedented. How does the EFF know this was unprecedented? If there had been a precedent, wouldn't it be hidden? I would expect the EFF to avoid statements that seem naive, even while I appreciate what they do.
- greghatch 12y agoIf it's hidden, then its assumed to be unprecedented until evidence presents otherwise. There aren't going to be forward assumptions of precedents without evidence.
- esbranson 12y ago> We could find no example of where a court had Given the exorbitant fees the PACER system charges, I doubt anyone, even the EFF, could afford to find such a case out of all the federal court cases.
- fragsworth 12y agoWell, given the nature of the thing requested, it is actually impossible to find historic examples of it until now (when the request was denied)