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EFF in Court to Argue NSA Collection from Internet Backbone Is Unconstitutional
- cevaris 12y agoWhat???!!
- iandanforth 12y ago"Under the government's legal theory, it can copy virtually all Internet communications and then search them from top to bottom for specific "identifiers"—all without a warrant or individualized suspicion—as long as it does so quickly using only automated processes." Love it. I hadn't thought of it like that before. Just because your search is fast doesn't mean it's not a search.
- higherpurpose 12y agoAlso, just because there isn't a "human" that does the search manually, doesn't mean the human doesn't benefit from the search (exactly as if he would if he did the search himself). And another thing: the 4th Amendment clearly talks about searches and seizures, so saying "we're only collecting it, but not searching it" shouldn't work as an excuse either. EFF should also make a case for how searching into your online Facebook accounts, Google accounts, chat accounts and so on, is the "searching through your home without a warrant and fishing for crimes of the 21st century" - or something along those lines. A third party may hold the data for you, but people think of those accounts as "theirs", and they have an expectation of privacy for them. If you keep something in a bank deposit box, does the bank own your deposit box and everything in it? Or is that "yours", and you expect nobody but you to access that? Right now, the government much prefers to go to these companies and just ask them for what you have in those accounts, because it's so much easier for them to do that, than ask you. But I feel they are skirting an important right humans should be having here. The "physical" protections seem to be so much better than the "digital" protections in the US law right now. It's time to change that, and make it clear that digital protections should be at least as strong as the kind of protections we benefit from in the real world. For example, it makes no sense for email to be considered under a much lower standard than real mail. They are both exactly the same type of communication. It's just the medium that's different, but that shouldn't matter at all.
- fluidcruft 12y ago> the 4th Amendment clearly talks about searches and seizures Not to nitpick, but how exactly is making a copy of something a seizure?
- mikegioia 12y agoWouldn't you need to take something first before copying it?
- geekamongus 12y agoNot if I use a camera to take a picture of it, from which I can look at it to make a copy.
- fluidcruft 12y agoIf by "take" you mean deny or restrict access and use by the "owner" then, no, of course not. You don't need exclusive access to copy something (or record information about it). For example, taking a picture of the Washington Monument isn't remotely anything that comes to mind when I consider what "seizing the Washington Monument" would entail.
- ethbro 12y agoSince the principles of photography post-dated the Constitution, I'd say it's a fair assumption that in its time the expectation was that exclusive access would be needed to (laboriously) copy something. But it's kind of pedantic to argue over a single word. The pertinent question is 'Do the views espoused by the Constitution as a whole (and subsequent case law) offer an opinion on the rightness of mass copying-without-exclusive access?' Which is pretty thorny indeed. IANAL, but from what I've read it seems as though the Supreme Court is steadily trending more towards supporting an inherent right to privacy as a buttress against decisions that would otherwise feel wrong.
- deleted 12y ago[deleted]
- spacefight 12y agoThis is exactly what we need: worldwide and on a large scale. Bundled with media support, grass roots call for action campaigns and much more. Let them know we won't accept the status quo.
- Raphmedia 12y agoThis is it. This is the tipping point. I'm donating money to the EFF.
- diafygi 12y agoGreat! Be sure to do the recurring donation option. I donate $10 per month automatically, which is barely noticeable.
- Raphmedia 12y agoI wish $10/month was barely noticeable for me! But I've send them $25, which I'm sure they will put to good use!
- sarciszewski 12y agoIf you can't, I'll send a recurring $20/month starting on Friday. Ping me on Twitter if I forget :)
- Raphmedia 12y agoAwesome!
- LLWM 12y agoI can't either, and neither can my wife or any of our 6 kids. Please send 80.
- sarciszewski 12y agoI don't believe you have a wife or kids. Enjoy your hand.
- IceyEC 12y agoI was going to do 10 recurring but just hit 25 to help those who can't do the 10 :)
- zimbatm 12y agoIf I send a copy of a music record by email and the NSA keeps a copy of it, can they be sued for copyright infringement ?
- deleted 12y ago[deleted]
- sarciszewski 12y agoSo if I download copyrighted material but never listen to it, I'm not infringing?
- deleted 12y ago[deleted]
- wcummings 12y agoObviously not, because you haven't collected it yet!
- AngrySkillzz 12y agoI had that idea a while ago. Write a short article, copyright it, and then email it to a bunch of terrorists to make sure the NSA pick it up. Because we really have two different paradigms involved here; the big copyright trade associations claim that the law is broken when you copy something, whereas the US government claims the law is broken only when/if they inspect the copied material.
- gamesbrainiac 12y agoDonating money to EFF. Finally. I've been waiting so long :)
- diafygi 12y agoFYI, these proceedings are open to the public. I've gone to two of them before to support the EFF. You just wear a suit and sit in the audience quietly. When the arguments (which are fascinating, by the way) are over everyone gets up at the same time and leaves. Hopefully, the judges notice how much public support is there for the EFF. If you are in the bay area, I highly encourage you to go (this one is very near the Oakland 12th St BART). You are watching history in the making.
- gamesbrainiac 12y agoYou sure there's going to be any space left? This is going to be a pretty iconic case.
- diafygi 12y agoI went to the last one in Oakland and there was about 20-30 people who came to watch. However, at another case in SF, it was at capacity and they had to set up a live feed to the cafeteria for the overflow. Hopefully, that happens this time, too :)
- gamesbrainiac 12y agoHopefully live streams will also pop up :)
- mrfusion 12y agoProtest outside otherwise?
- LLWM 12y agoAll these comments about donating to the EFF. Any way I can donate money to the NSA to balance things out a bit?
- sarciszewski 12y agoJust use your credit card on any eCommerce website that uses opencart. TAO can take care of the rest. :P
- joshstrange 12y agoIt's called taxes, and don't worry, you are already a BIG donor.
- LLWM 12y agoAll these comments about taxes are really making me regret creating that Irish shell corporation.
- schoen 12y agoAccording to Wikipedia, NSA's share of Federal budget outlays was about 0.28% in 2013 (although there's a conceptual question whether you can just multiply your tax bill by 0.0028 to find out your contribution to NSA's budget, because Federal expenditures are also funded from sources other than personal income tax). (Here I kind of wish we had a "facts we wouldn't know without Snowden" mock-HTML tag.)
- joshstrange 12y agoNot to mention the "Black Budgets" that undoubtedly fund the NSA and friends.
- diafygi 12y agoSure! Pay your taxes.
- junto 12y agoYep, buy heroin and cocaine. They have a nice little sideline with the CIA.
- joshstrange 12y agoIf you haven't already go to this link (Probably need to be logged into Amazon): 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_... And select EFF as your Smile charity. THEN get the browser extension to automatically redirect you to the Smile link: Chrome: https://chrome.google.com/webstore/detail/smile-always/jgpmhnmjbhgkhpbgelalfpplebgfjmbf?hl=en https://chrome.google.com/webstore/detail/smile-always/jgpmh... Firefox: https://addons.mozilla.org/en-US/firefox/addon/amazonsmileredirector/ https://addons.mozilla.org/en-US/firefox/addon/amazonsmilere... EDIT: I only use the chrome extension, if someone has a better FF extension just let me know and I'll change the link, that was the first one I found.
- cheshire137 12y ago"Read and change all your data on all websites". No thanks to the Chrome extension, but EFF is now my charity on Amazon Smile at least.
- renata 12y agoMuch like Android, Chrome does not have very fine-grained permissions. On the plus side, it's pretty much just a zip file so it's easy to open it up and see what it's actually doing.
- TylerJay 12y agoUnfortunately, that's the permission level required to allow rerouting (changing the url of amazon.com/.../foo => smile.amazon.com/.../foo)
- azdle 12y agoI use that FF extension and have no complaints. The best thing I can say about it is that I never notice it, but it always does seem to put me on smile.
- viccuad 12y agoFor those who prefer the Free Sotfware Fundation, it is also available on the list.
- cm2187 12y agoI am a supporter of the EFF but I don't really see the point of suing the NSA. If they loose, they will call it something else keep doing it. And the NSA is only one of the offenders. Don't think foreign gvt aren't doing the same on their side of the cable. The only solution is systematic encryption. The EFF's let's encrypt effort is way more constructive in my mind.
- swombat 12y agoBoth avenues must be pursued. One without the other is useless. Pursuing the technical-only approach will fail if the use of such technology is made illegal.
- Morgawr 12y agoIt doesn't even need to be made illegal, just incorrectly "regulated".
- smtddr 12y ago--Someday in the futre--- SecurityAwareCustomer: "I've noticed that my VPN and ssh connections have started to lag & disconnect frequently" Comcast: "We've gotten several reports on this issue. To better serve our customers we've implemented a software designed to optimize network traffic routing. To do that, the software must do some deep packet inspection. Unfortunately, if a traffic is encrypted this software must go through all its known packet types before determining that it's encrypted. This takes time and also because the incoming buffer might fill up before it's done determining the packet is from an encrypted stream, said packets might get dropped entirely." SecurityAwareCustomer: "So, encrypted traffic's performance is severely degraded then?" Comcast: "We're sorry for any inconvenience this may cause" SecurityAwareCustomer: "Couldn't you check if it's known encryption first, then try other packet types?" Comcast: "The software vendor has been made aware of the issue. Due to net-neutrality laws & regulations, the vendor was assigned to us by the USGov and they must review any proposed changes to the software. This legal process could take a long time." SecurityAwareCustomer: "How long?" Comcast: "Thank you for choosing Comcast!" -Comcast hangs up phone- SecurityAwareCustomer: "............huh"
- aragot 12y agoThe Fourth only protects 330 million out of 7 billion people. However, if we don't help US citizen for their democracy, we'll have no weight for ours.
- Taek 12y agoInteresting that the "Bill of Rights" wouldn't apply universally. We're all human.
- pm90 12y agoAFAIK the US Constitution is just a contract put forth by the US citizens limiting the power of the US Govt. By agreeing to obey the constitution, you become a US citizen and vice-versa. Although the principles apply universally, they have a legal basis to be enforced (by the US judiciary) only in the US.
- philsnow 12y agoWouldn't it be lovely if we considered citizens of other countries to be (sorry to abuse the term) "first class citizens" w.r.t. what rules we apply to them / how we govern or limit ourselves when surveilling them? We could hold ourselves to a higher standard, but we take the (without a doubt efficacious, but) low road. Possibly impractical nowadays from a national security standpoint in the "you can't get there from here" sense, but lovely nonetheless.
- chc 12y agoIf we did that, they would also be governed by things like federal drug law and tax law. It does not seem desirable to apply the same rules both to citizens and non-citizens.
- danenania 12y agoRights are different from laws. There is no 'right to be taxed', but there are rights to privacy. Alleging that basic rights do exist but should only apply to human beings who live inside the borders of your own country is just a fundamentally bigoted position. It's essentially admitting that certain lines should not be crossed in allowing people a decent and dignified existence, but then proclaiming only 5% of the world deserves that dignity due solely to the accident of where they're born. You might as well be separating the world into 'people who matter' and 'people who don't', which, as we've learned through history both ancient and recent, provides a great basis for activities like torture and genocide. Not exactly what you'd hope for from an enlightened democracy.
- dustinfarris 12y agoEFF joins the ranks of ACLU in my book. Donated.
- 0x5f3759df-i 12y agoThe title seems a little misleading >Jewel was filed in 2008 on behalf of San Francisco Bay Area resident Carolyn Jewel and other AT&T customers. This isn't a new lawsuit, it has just taken forever to even get to this point. The main focus of this case isn't from the Snowden documents but the Snowden documents did open up the case to actually go forward without State Secrets censorship.
- shawn-butler 12y ago>>>> The court thus faulted them [the ACLU in ACLU v. NSA, 493 F.3d 644, 648] for “assert[ing] a mere belief” that the NSA eavesdropped on their communications without warrants. Id. This failure of proof doomed standing. Ultimately Jewel may face similar procedural, evidentiary and substantive barriers as the plaintiffs in ACLU, but, at this initial pleading stage, the allegations are deemed true and are presumed to “embrace the ‘specific facts’ needed to sustain the complaint.” [0] >>> EFF is on a fishing expedition. I am not unsympathetic. But this judicial arm-twisting and absurd twisting of language / law needs to stop as the road it opens is not helpful to our democracy. They will never be able to justify their claims with anything that will pass evidentiary muster. Supporting the EFF is all fine but generally a waste of time and money for effecting real change. The only way these programs end is if Congress is full of people who want this to stop and will ensure that it does. If an obscure libertarian like Grover Norquist can dominate electoral cycles with a "Taxpayer Protection Pledge" why can someone not similarly dominate electoral cycles with a "Privacy Protection Pledge"? Demand every presidential candidate sign it, etc. Make it a real wedge issue. I wonder if the answer is that US citizens don't care because they don't really see how they are harmed? They believe the Govt is protecting them by doing this? [0]: http://cdn.ca9.uscourts.gov/datastore/opinions/2011/12/29/10-15616.pdf http://cdn.ca9.uscourts.gov/datastore/opinions/2011/12/29/10... [pdf]
- spacefight 12y ago"Supporting the EFF is all fine but generally a waste of time and money for effecting real change. The only way these programs end is if Congress is full of people who want this to stop and will ensure that it does." If this is the only way, I have little hope.
- dmix 12y agoOh, people are still making this comment on HN? The whole "the only answer is politics" thing sort of lost its luster when absolutely nothing happened politically over one and a half years since Snowden. One could argue the NSA has only been solidified by the political system. So good luck with that approach.
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- sgt101 12y agoWhat Internet Backbone is that? The one that closed in 1995?
- sp332 12y agohttps://en.wikipedia.org/wiki/Internet_backbone https://en.wikipedia.org/wiki/Internet_backbone A decentralized, redundant network among many companies.
- sgt101 12y agoOk, it's in Wikipedia! But, backbone's are normally singular and control a single organism. I think that the metaphore held fine until 1995, but that which has come since then does not look, act or smell like a backbone to me... (see what I did there with the metaphore thing :))
- csandreasen 12y agoI don't think the EFF is going to win this one. It's not because of some government conspiracy, or the odds being stacked against them or anything like that, but rather because their argument is flawed. As detailed elsewhere on the EFF's site[1], the core of their case centers around NSA's Section 702 Upstream collection. They have more recently hinged their argument on the Privacy and Civil Liberty Oversight Board report on Section 702[2], but the case predates it going back as far as Mark Klein's Room 641A disclosure. The identifiers that the EFF talks about are described in the report as follows: As noted above, however, all upstream collection — of which “about” collection is a subset — is “selector-based, i.e., based on . . . things like phone numbers or emails.” Just as in PRISM collection, a selector used as a basis for upstream collection “is not a ‘keyword’ or particular term (e.g., ‘nuclear’ or ‘bomb’) but must be a specific communications identifier (e.g., email address).” In other words, the government’s collection devices are not searching for references to particular topics or ideas, but only for references to specific communications selectors used by people who have been targeted under Section 702. In other words, the NSA is searching for the communications of specific people - it's targeted collection. The EFF itself even concedes that they are filtering out wholly domestic communications[3]. Instead of questioning the specific procedures for targeting these people, the likelihood that they may fail and collect an innocent bystander's communications, the procedures dealing with incidental or accidental collection, etc., they are instead taking the stance that the filtering itself is illegal because a packet filter needs to see a packet before determining whether or not it matches the specific communication. As an analogy, if where to pull up my terminal and run: $ seq 1 3 | grep -v 2 | grep 3 > out.txt ... the government is arguing that the collection is the contents of out.txt ("3") and furthermore, they put an extra measure in place to ensure that the number 2 (i.e. purely domestic communications) is never collected. The EFF is arguing that 1, 2 and 3 are all collected because each one exists in grep's buffer for a millisecond before it is discarded - it doesn't matter that it's never seen by a human, entered into a database, written to disk or transmitted elsewhere. I think I see why the EFF is making that argument: in Clapper v. Amnesty International it was ruled that the plaintiff didn't have standing because they couldn't show that their specific communications had been collected. Jewel v. NSA would likely have the same issue, so to get around it the EFF is instead arguing that the very fact that the NSA is conducting any sort of packet filtering itself constitutes a search and seizure, regardless what safeguards are put in place or whether the filtering is targeted. I think they're grasping for straws with this one - I'd be really surprised if they win. If I were in their place, I'd probably FOIA the hell out of the 702 procedures and look for loopholes instead. [1] https://www.eff.org/press/releases/eff-asks-judge-rule-nsa-internet-backbone-spying-techniques-unconstitutional https://www.eff.org/press/releases/eff-asks-judge-rule-nsa-i... [2] http://www.pclob.gov/Library/702-Report-2.pdf http://www.pclob.gov/Library/702-Report-2.pdf [3] https://www.eff.org/files/2014/07/24/backbone-3c-color.jpg https://www.eff.org/files/2014/07/24/backbone-3c-color.jpg
- Constitutional 12y agoThe courts do have power in the federal government. If they say that some law is unlawful, then it is not able to be enforced as a law. The courts have that power since the constitution gives it to them. I think that you need to look at constitutional law a little more. The Executive branch does not have more power then the courts or the Congress. By the constitution.
- deleted 12y ago[deleted]
- andy_ppp 12y agoEven if the EFF win the NSA will carry on regardless. Our laws have been diminished to the point where the powerful do not have to obey.
- pluma 12y agoI'd love for this to actually make a difference, but I doubt it. The NSA has redefined the language around wiretapping just as the military has redefined the language around war and the CIA has redefined the language around torture. I'm sure everything that has happened was legal. The question is: if all of these crimes are legal and those with the power to ban them have no interest in doing so, what's left? And how long will it be until that happens?