6 ms·

Unsealed Filing Shows DOJ Misled Appeals Court About NSL Gag Orders

119 points by sinak 12y ago

java-man 12y ago
Still, more truthful than the Honorable Director Clapper...
themartorana 12y ago
What happens if someone went on CNN/whatever and just went "so we got this NSL..." Guantanamo? I'm a bit surprised someone hasn't simply opened their mouths. I applaud the EFF and everyone fighting this fight. Money is free speech but you can't talk about super-aggressive and highly-invasive (probably unconstitutional) NSLs even to say you got one. So utterly bizarre and disheartening. Although maybe disenfranchisement is half of the point.
- mkal_tsr 12y ago
  The EFF is doing important work. I hope everyone has either donated to them or switched their smile.amazon.com over to EFF. Or at least for the software/hardware people on HN.
  - joshstrange 12y ago
    I didn't know you could do this (I thought there were only a few handpicked charities). If you want to make a similar change your smile charity go here: https://smile.amazon.com/gp/charity/change.html?ie=UTF8&ref_=ya_pldn#q=Electronic+Frontier+Foundation+Inc&page=1&ref=smi_se_cycsr_srch_sr&orig= https://smile.amazon.com/gp/charity/change.html?ie=UTF8&ref_... Then install the "Smile Always" plugin to redirect you to smile: https://chrome.google.com/webstore/detail/smile-always/jgpmhnmjbhgkhpbgelalfpplebgfjmbf?hl=en https://chrome.google.com/webstore/detail/smile-always/jgpmh... (The offical amazon one doesn't auto redirect AFAICT)
- Karunamon 12y ago
  Guantanamo, no. Ugly and protracted legal battle against an adversary that would like nothing better to make an example out of you, yes.
  - toomuchtodo 12y ago
    "How do you feel about living in Russia for a bit?"
- MagicWishMonkey 12y ago
  You would likely go to federal prison, you would not be given a fair trial (a judge would sentence you in a secret court). The only reason Ladar Levison (the Lavabit guy) is a free man right now is because the guardian picked up his story before the FBI could toss his ass in a black SUV. He got lucky.
  - rayiner 12y ago
    Source on secret court is handing out jail sentences? The whole "secret court" thing is FUD. The FISA "secret court" was created by law to insert itself into a process that didn't require a court proceeding in the first place. It's not empowered to adjudicate peoples' rights and obligations.
    - jgeorge 12y ago
      I still don't think I'd like to be the person to test that.
      - kabdib 12y ago
        See? The system works! /snark
    - talmand 12y ago
      No source on handing out jail sentences, but I would bet you would get one if you defied it since you would be defying the law. Which would be when someone from the Justice Department would knock on your door. I would agree it's not quite the same thing. As for "secret court" that you put in "scary" quotes. Just to be sure, no one says secret as in no one knows it exists, but that the public is not allowed to know what it does. Which is not FUD, some of us see that as a clear problem.
      - rayiner 12y ago
        It is definitely FUD to say "a judge would sentence you in a secret court." And we know what the FISA court does--it reviews requests by intelligence agencies to engage in foreign surveillance, as provided for by the FISA Amendments Act. It does not put people in jail. The biggest misunderstanding about the FISA court, a misunderstanding rooted in FUD, is that it has the powers of an ordinary court and uses them in secret. But unlike a regular federal court, a FISA court cannot adjudicate your rights and obligations. What Congress did by creating the FISA court was to insert the judicial branch into a process, foreign surveillance, that, Constitutionally, does not require judicial branch involvement. Its proceedings can be secret only because it does not exercise the normal power of the judicial branch to determine peoples' legal rights.
- Cieplak 12y ago
  The court would likely charge you with contempt. http://www.theblaze.com/stories/2014/02/19/child-services-files-contempt-charges-against-father-who-broke-gag-order-to-tell-story-of-daughter-kept-in-hospital-against-parents-will-source/ http://www.theblaze.com/stories/2014/02/19/child-services-fi...
- higherpurpose 12y ago
  I'm still angry at Marissa Mayer for saying that if she could go to prison over something like this. That's just not something I would expect a CEO of such a major corporation to say. FFS, US is not China (yet). She shouldn't put fear into everyone's hearts with that kind of statement, especially since I believe it was mostly baseless.
  - rayiner 12y ago
    A CEO can go to prison for selling stock at the wrong time...
  - discardorama 12y ago
    Have you heard of Joe Naccio? http://www.denverpost.com/business/ci_25434854/former-qwest-ceo-nacchio-claims-tv-his-jail http://www.denverpost.com/business/ci_25434854/former-qwest-...
matteotom 12y ago
I've been wondering this for a while now, can I set up a Twitter account that automatically tweets ever day "MatteoTom has never received a NSL/a gag order", and if I ever do receive one, stop sending the tweets? Can the FBI/DOJ/whoever require me (or Twitter) to continue to send out the tweets? Or is it somehow illegal for me to set up such an account in the first place?
- java-man 12y ago
  You don't get it. THEY are unconstrained by law.
  - matteotom 12y ago
    I'm not sure I understand what you're saying. The idea is that I would confirm that (NSLs received >= 1) by not saying that (NSLs received == 0).
    - java-man 12y ago
      The programmer's logic does not apply here. When you lie, you go to jail or worse. When they lie, they get promoted.
  - gomerclaus 12y ago
    YOU don't get it. He's not talking about their actions; he's talking about his own. Also, yes, they are constrained by law. That's how we're able to take the government to court.
- mikebike 12y ago
  That's called a warrant canary: https://www.eff.org/deeplinks/2014/04/warrant-canary-faq https://www.eff.org/deeplinks/2014/04/warrant-canary-faq
- noonespecial 12y ago
  I think you'll find that whatever it is that you are doing (or not doing) that they find objectionable will be some crime or another. The courts around here are becoming somewhat... marsupial.
toufka 12y ago
The argument was an odd one to begin with. The government argued that it was not stifling speech because you could say, "I have received between 0 and 249 NSLs, and here's what I think about NSLs..." You could not, however say, "I have received between 0 and 249 NSLs and here's what I think about NSLs (and I should know because I got one)... If it's not true that someone can complain about NSLs generically, then there is an odd position where one can comment on facts or opinions about NSLs precisely until one actually has experience to support facts or opinions about NSLs.
- aragot 12y ago
  Correct, how can we confident the gag orders don't require AmaGooSoft to pretend they received fewer NSLs than they did?
beedogs 12y ago
I'm gonna go out on a limb and say Eric Holder's DoJ is the worst we'll see in our lifetime.
- java-man 12y ago
  You are an optimist!
- bediger4000 12y ago
  Alberto Gonzalez and John Ashcroft give stiff competition there. Google for "alberto gonzales jane harman". I'm still puzzled about why that story didn't get any traction. Anyway, I think you're optimistic.
- jacquesm 12y ago
  I have at least another 25 years in me (I hope!) and I'll take that bet.
logn 12y ago
The government has nothing to lose. They can print money and write new loopholes into laws. There need to be class action lawsuits against every corporation complicit in crimes against the public. If I can get paid for Red Bull promising me wings, I can certainly sue Google for using a sealed envelope as the logo for Gmail.
- _up 12y ago
  Then don't ever use Google new "Inbox" because they choose an open envelope as the logo.
r0h1n 12y ago
Provisions in the law the gag participants from even talking about a violation of their rights are particularly insidious. Sure, they're Kafka-esque, but they also affect the poor, small and marginalized disproportionately. What is a small business or private citizen to do if they cannot even talk about how they're being wronged against? How will they solicit the support of others? How will they use the free media/press (meant to be a bulwark against injustice) to publicize their cause? This isn't isolated to just the NSA/FBI/DoJ, or the US alone. Ag-gag laws [1], "super injunctions" [2] and "secret trials" [3] are all examples of this dangerous trend. [1] - http://www.theguardian.com/commentisfree/2012/jun/06/agriculture-gag-laws-press-freedom http://www.theguardian.com/commentisfree/2012/jun/06/agricul... [2] - http://www.lawteacher.net/human-rights/essays/super-injunction-used-to-gag-investigative.php http://www.lawteacher.net/human-rights/essays/super-injuncti... [3] - http://www.bbc.co.uk/news/uk-27806814 http://www.bbc.co.uk/news/uk-27806814
- dmix 12y ago
  There was a particularly apt quote from UK's former homeland security spokesman: > Secret court hearings will hand a major propaganda victory to terrorists, a former security adviser to David Cameron has warned. Senior Tory MP Patrick Mercer said he had ‘grave’ concerns about the Government’s plans, which he warned would erode centuries of open justice. > The former Army officer, who served as the party’s homeland security spokesman until 2007, also claimed the measures would succeed in destroying British values – effectively doing the terrorists’ job for them http://www.dailymail.co.uk/news/article-2126374/Secret-courts-hand-victory-terrorists-David-Camerons-ex-security-adviser-warns-PM.html http://www.dailymail.co.uk/news/article-2126374/Secret-court... It's a shame that American lawmakers did not come to a similar conclusion, that secret courts and rulings erode the values of a free and open society.
  - chii 12y ago
    > secret courts and rulings erode the values of a free and open society. secret courts allow the appearance of a free and open society whilst actually enacting draconian practices without fear of reprisal.
  - 12y ago
zaroth 12y ago
Everywhere it says 'quality' I think it's supposed to say 'quantity'. This was quite confusing, since the world 'quality' appears throughout (and a total of 4 times) but the word 'quantity' appears only once at the 2nd to last quote, and even then it's contradictory; There’s nothing that says that they can’t comment, they’re allowed to make specific comments about _quantity_, there’s absolutely no ban on them commenting on the _quality_ of those they’ve received. Or is it actually that the argument was over commenting on the "quality" of the NSL, and if so, what does that even mean?
higherpurpose 12y ago
At this point why doesn't everyone assume DoJ/law enforcement is misleading in Court? That should be the default, and their statements should always be thoroughly checked.

119 points by sinak 12y ago

Still, more truthful than the Honorable Director Clapper...

What happens if someone went on CNN/whatever and just went "so we got this NSL..." Guantanamo? I'm a bit surprised someone hasn't simply opened their mouths. I applaud the EFF and everyone fighting this fight. Money is free speech but you can't talk about super-aggressive and highly-invasive (probably unconstitutional) NSLs even to say you got one. So utterly bizarre and disheartening. Although maybe disenfranchisement is half of the point.

mkal_tsr 12y ago
The EFF is doing important work. I hope everyone has either donated to them or switched their smile.amazon.com over to EFF. Or at least for the software/hardware people on HN.
- joshstrange 12y ago
  I didn't know you could do this (I thought there were only a few handpicked charities). If you want to make a similar change your smile charity go here: https://smile.amazon.com/gp/charity/change.html?ie=UTF8&ref_=ya_pldn#q=Electronic+Frontier+Foundation+Inc&page=1&ref=smi_se_cycsr_srch_sr&orig= https://smile.amazon.com/gp/charity/change.html?ie=UTF8&ref_... Then install the "Smile Always" plugin to redirect you to smile: https://chrome.google.com/webstore/detail/smile-always/jgpmhnmjbhgkhpbgelalfpplebgfjmbf?hl=en https://chrome.google.com/webstore/detail/smile-always/jgpmh... (The offical amazon one doesn't auto redirect AFAICT)
Karunamon 12y ago
Guantanamo, no. Ugly and protracted legal battle against an adversary that would like nothing better to make an example out of you, yes.
- toomuchtodo 12y ago
  "How do you feel about living in Russia for a bit?"
MagicWishMonkey 12y ago
You would likely go to federal prison, you would not be given a fair trial (a judge would sentence you in a secret court). The only reason Ladar Levison (the Lavabit guy) is a free man right now is because the guardian picked up his story before the FBI could toss his ass in a black SUV. He got lucky.
- rayiner 12y ago
  Source on secret court is handing out jail sentences? The whole "secret court" thing is FUD. The FISA "secret court" was created by law to insert itself into a process that didn't require a court proceeding in the first place. It's not empowered to adjudicate peoples' rights and obligations.
  - jgeorge 12y ago
    I still don't think I'd like to be the person to test that.
    - kabdib 12y ago
      See? The system works! /snark
  - talmand 12y ago
    No source on handing out jail sentences, but I would bet you would get one if you defied it since you would be defying the law. Which would be when someone from the Justice Department would knock on your door. I would agree it's not quite the same thing. As for "secret court" that you put in "scary" quotes. Just to be sure, no one says secret as in no one knows it exists, but that the public is not allowed to know what it does. Which is not FUD, some of us see that as a clear problem.
    - rayiner 12y ago
      It is definitely FUD to say "a judge would sentence you in a secret court." And we know what the FISA court does--it reviews requests by intelligence agencies to engage in foreign surveillance, as provided for by the FISA Amendments Act. It does not put people in jail. The biggest misunderstanding about the FISA court, a misunderstanding rooted in FUD, is that it has the powers of an ordinary court and uses them in secret. But unlike a regular federal court, a FISA court cannot adjudicate your rights and obligations. What Congress did by creating the FISA court was to insert the judicial branch into a process, foreign surveillance, that, Constitutionally, does not require judicial branch involvement. Its proceedings can be secret only because it does not exercise the normal power of the judicial branch to determine peoples' legal rights.
Cieplak 12y ago
The court would likely charge you with contempt. http://www.theblaze.com/stories/2014/02/19/child-services-files-contempt-charges-against-father-who-broke-gag-order-to-tell-story-of-daughter-kept-in-hospital-against-parents-will-source/ http://www.theblaze.com/stories/2014/02/19/child-services-fi...
higherpurpose 12y ago
I'm still angry at Marissa Mayer for saying that if she could go to prison over something like this. That's just not something I would expect a CEO of such a major corporation to say. FFS, US is not China (yet). She shouldn't put fear into everyone's hearts with that kind of statement, especially since I believe it was mostly baseless.
- rayiner 12y ago
  A CEO can go to prison for selling stock at the wrong time...
- discardorama 12y ago
  Have you heard of Joe Naccio? http://www.denverpost.com/business/ci_25434854/former-qwest-ceo-nacchio-claims-tv-his-jail http://www.denverpost.com/business/ci_25434854/former-qwest-...

matteotom 12y ago

I've been wondering this for a while now, can I set up a Twitter account that automatically tweets ever day "MatteoTom has never received a NSL/a gag order", and if I ever do receive one, stop sending the tweets? Can the FBI/DOJ/whoever require me (or Twitter) to continue to send out the tweets? Or is it somehow illegal for me to set up such an account in the first place?

java-man 12y ago
You don't get it. THEY are unconstrained by law.
- matteotom 12y ago
  I'm not sure I understand what you're saying. The idea is that I would confirm that (NSLs received >= 1) by not saying that (NSLs received == 0).
  - java-man 12y ago
    The programmer's logic does not apply here. When you lie, you go to jail or worse. When they lie, they get promoted.
- gomerclaus 12y ago
  YOU don't get it. He's not talking about their actions; he's talking about his own. Also, yes, they are constrained by law. That's how we're able to take the government to court.
mikebike 12y ago
That's called a warrant canary: https://www.eff.org/deeplinks/2014/04/warrant-canary-faq https://www.eff.org/deeplinks/2014/04/warrant-canary-faq
noonespecial 12y ago
I think you'll find that whatever it is that you are doing (or not doing) that they find objectionable will be some crime or another. The courts around here are becoming somewhat... marsupial.

toufka 12y ago

The argument was an odd one to begin with. The government argued that it was not stifling speech because you could say, "I have received between 0 and 249 NSLs, and here's what I think about NSLs..." You could not, however say, "I have received between 0 and 249 NSLs and here's what I think about NSLs (and I should know because I got one)... If it's not true that someone can complain about NSLs generically, then there is an odd position where one can comment on facts or opinions about NSLs precisely until one actually has experience to support facts or opinions about NSLs.

aragot 12y ago
Correct, how can we confident the gag orders don't require AmaGooSoft to pretend they received fewer NSLs than they did?

beedogs 12y ago

I'm gonna go out on a limb and say Eric Holder's DoJ is the worst we'll see in our lifetime.

java-man 12y ago
You are an optimist!
bediger4000 12y ago
Alberto Gonzalez and John Ashcroft give stiff competition there. Google for "alberto gonzales jane harman". I'm still puzzled about why that story didn't get any traction. Anyway, I think you're optimistic.
jacquesm 12y ago
I have at least another 25 years in me (I hope!) and I'll take that bet.

logn 12y ago

The government has nothing to lose. They can print money and write new loopholes into laws. There need to be class action lawsuits against every corporation complicit in crimes against the public. If I can get paid for Red Bull promising me wings, I can certainly sue Google for using a sealed envelope as the logo for Gmail.

_up 12y ago
Then don't ever use Google new "Inbox" because they choose an open envelope as the logo.

r0h1n 12y ago

Provisions in the law the gag participants from even talking about a violation of their rights are particularly insidious. Sure, they're Kafka-esque, but they also affect the poor, small and marginalized disproportionately. What is a small business or private citizen to do if they cannot even talk about how they're being wronged against? How will they solicit the support of others? How will they use the free media/press (meant to be a bulwark against injustice) to publicize their cause? This isn't isolated to just the NSA/FBI/DoJ, or the US alone. Ag-gag laws [1], "super injunctions" [2] and "secret trials" [3] are all examples of this dangerous trend. [1] - http://www.theguardian.com/commentisfree/2012/jun/06/agriculture-gag-laws-press-freedom http://www.theguardian.com/commentisfree/2012/jun/06/agricul... [2] - http://www.lawteacher.net/human-rights/essays/super-injunction-used-to-gag-investigative.php http://www.lawteacher.net/human-rights/essays/super-injuncti... [3] - http://www.bbc.co.uk/news/uk-27806814 http://www.bbc.co.uk/news/uk-27806814

dmix 12y ago
There was a particularly apt quote from UK's former homeland security spokesman: > Secret court hearings will hand a major propaganda victory to terrorists, a former security adviser to David Cameron has warned. Senior Tory MP Patrick Mercer said he had ‘grave’ concerns about the Government’s plans, which he warned would erode centuries of open justice. > The former Army officer, who served as the party’s homeland security spokesman until 2007, also claimed the measures would succeed in destroying British values – effectively doing the terrorists’ job for them http://www.dailymail.co.uk/news/article-2126374/Secret-courts-hand-victory-terrorists-David-Camerons-ex-security-adviser-warns-PM.html http://www.dailymail.co.uk/news/article-2126374/Secret-court... It's a shame that American lawmakers did not come to a similar conclusion, that secret courts and rulings erode the values of a free and open society.
- chii 12y ago
  > secret courts and rulings erode the values of a free and open society. secret courts allow the appearance of a free and open society whilst actually enacting draconian practices without fear of reprisal.
- 12y ago

zaroth 12y ago

Everywhere it says 'quality' I think it's supposed to say 'quantity'. This was quite confusing, since the world 'quality' appears throughout (and a total of 4 times) but the word 'quantity' appears only once at the 2nd to last quote, and even then it's contradictory; There’s nothing that says that they can’t comment, they’re allowed to make specific comments about _quantity_, there’s absolutely no ban on them commenting on the _quality_ of those they’ve received. Or is it actually that the argument was over commenting on the "quality" of the NSL, and if so, what does that even mean?

higherpurpose 12y ago

At this point why doesn't everyone assume DoJ/law enforcement is misleading in Court? That should be the default, and their statements should always be thoroughly checked.