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EFF Wins Battle Over Secret Legal Opinions on Government Spying

582 points by declan 12y ago

rayiner 12y ago
This is really wonderful work by the EFF. Legal opinions are not dangerous. They don't disclose the locations of undercover agents or anything like that. It's a contempt to the legal profession to keep them secret so that their reasoning cannot be scrutinized by courts. A lawyer's job is to make the best possible argument for her client's position, but if the court says she's wrong--and it's within the court's sole provenance to say what the law is--then she must acquiesce.
- shmerl 12y ago
  > Legal opinions are not dangerous. They are dangerous for those who prefer to keep society in the dark about their questionable practices.
- sitkack 12y ago
  > The U.S. Department of Justice today filed a motion to dismiss its appeal of a ruling over legal opinions about Section 215 of the Patriot Act, the controversial provision of law relied on by the NSA to collect the call records of millions of Americans. As a result of the dismissal, the Justice Department will be forced to release a previously undisclosed opinion from the Office of Legal Counsel (OLC) concerning access by law enforcement and intelligence agencies to census data under Section 215. By the government backing out, it _doesn't_ set legal precedent for the release or prevention of secret ruling. They lost a battle to continue the war.
  - spiritplumber 12y ago
    If this can be iterated, then the good guys will win.
    - raquo 12y ago
      Congress can introduce bullshit faster than EFF can fix it, so no – this process does not converge to anything good.
  - nitrogen 12y ago
    Sometimes I wonder if the government should be required to follow all cases through to a court ruling, so that precedent can be established when appropriate.
    - spacemanmatt 12y ago
      Yes and no; There are already some rules governing case abandonment but we definitely don't need a government obligated to follow through every fool action it initiates.
      - emhart 12y ago
        If you have the time, could you elaborate on those rules? I know nothing about that field, but am very curious.
Quanticles 12y ago
The ability of the public to challenge the government in court and win on an issue like this is a large part of why America is so successful - the citizens are what removes government rot and keeps the system running well.
- thinkling 12y ago
  Oh how I wish I agreed with that. I recognize the huge value of a healthy justice system, but at the same time (a) there's so much we still cannot get through this type of legal process (National Security Letters, anyone), and (b) there's so much systemic rot that cannot be addressed this way (e.g., campaign financing) or in any other way that seems tractable to me.
  - Normati 12y ago
    It's quite tractable, stop voting for the same two parties that keep causing the problems over and over again. The trouble is, most of your voting neighbors don't mind so they perpetuate the problem - there's the downside of democracy, two wolves and a sheep.
    - chrisbennet 12y ago
      Not sure why you got downvoted, but you make a good point. Political parties change their "offerings" when they lose votes. Analogy: When 2 large competing grocery chains start loosing business to small organic stores the big stores will start carrying organic food. The small organic store will never dominate the big stores but they can cause the big guys to change.
    - colordrops 12y ago
      I fully agree that voting for third parties is the way to go, but currently the public has been propagandized to believe that voting third party is wasting your vote, or even worse, causing harm. They are convinced that their vote is wasted by a propaganda video going around that describes the US system as a "first past the post", in which it is impossible for third parties to win. They are convinced that third party voting is harmful as it supposedly causes a spoiler effect. As long as people are brainwashed against voting third party by these flawed memes, the problem will remain intractable.
jriordan 12y ago
Here's why census data is relevant: If you receive an extended survey from the U.S. census, you are legally required to fill it out with all sorts of personal data. If you don't return it, a census rep will hound you until you do. The "Privacy Policy" for this data is on the U.S. Census website here: http://www.census.gov/about/policies/privacy/data_protection.html http://www.census.gov/about/policies/privacy/data_protection... Note the statement that "the statistics we release do not identify individuals or businesses". During the last census, it became pretty obvious that this would be an effective way for the U.S. Government to compel information from people who were suspected of something. Section 215 of the Patriot Act, after all, gives the government carte blanche to obtain any "tangible" thing. IMHO... the interesting questions to ask when this legal opinion is released are: 1. Was there ever any accuracy to the U.S. Census "Privacy Policy"? Were the privacy policies of the U.S. Census misrepresented to the public, and in particular to those who were required to complete an extended survey? 2. Does the legal opinion address the "third-party doctrine" when the information provided is provided under legal compulsion, and in particular with potential (if commonly unused) penalties for non-cooperation? A very interesting test case would be for someone to sue the government, in light of the upcoming 2020 census, to test the constitutionality of the criminal liability for not completing the extended survey in light of the government using the information provided for potential law enforcement purposes. It should be easier than usual to establish standing since anyone can be forced to complete one of these extended surveys.
- orblivion 12y ago
  > If you don't return it, a census rep will hound you until you do. In theory.
  - jriordan 12y ago
    And very much in practice. Census reps -- all those temp workers that provide a reliable employment spike -- are instructed to pay multiple home visits to anyone who hasn't completed a questionnaire, extended survey or not. They are also instructed to remind holdouts of criminal liability for not responding. And they do! Also census reps must take an oath to not disclose individual information: http://www.census.gov/acs/www/about_the_survey/oath_nondisclosure/ http://www.census.gov/acs/www/about_the_survey/oath_nondiscl... How this comports with Section 215 access to individual data will be interesting to see.
msabalau 12y ago
If you found this encouraging, remember that donating to the EFF is a nice way to show appreciation. You can also set them up to benefit from amazon.smile if that strikes your fancy.
- guiambros 12y ago
  Great tip, thanks! Didn't realize EFF was one of the options. I'll alternate between my current choice on amazon.smile, and EFF, besides the direct contributions.
- deleted 12y ago
  [deleted]
  - etrautmann 12y ago
    can you elaborate?
    - tedivm 12y ago
      I'm guessing he's referring to blog posts like this one- https://www.eff.org/deeplinks/2014/04/tea-party-taxes-and-why-patriots-wouldve-revolted-against-surveillance-state https://www.eff.org/deeplinks/2014/04/tea-party-taxes-and-wh... Personally I'm happy to see issues that the left and right can both agree on, and don't really see an issue with EFF doing this if it helps accomplish their goals.
- mkal_tsr 12y ago
  Piggybacking on this... If you shop with Amazon.com, you can use the subdomain, smile.amazon.com to donate to your favorite charity, of which EFF is a part! So, if you'd like to 'passively' donate to the EFF, you can change your smile.amazon.com settings (and ensure you shop/checkout w/ the Smile subdomain) and a portion of your purchase will go to the EFF. There are many organizations and charities that are a part of the Smile program, so choose whichever you'd like to support.
  - 12y ago
aaron_m04 12y ago
Winning battles like this doesn't mean much as long as whistleblowers are thrown in jail and ignored by major US media outlets.
- HCIdivision17 12y ago
  But it means significantly more than nothing. Incremental improvement matters, and each success paves the next step toward the big important goals. There isn't a magic switch to just flip this enormous machine on its head. It's a crude, long, and brutal slog beating back the nonsense and cruft built up allowing such personal liberty injustices, and this is just another step. You can't protect whistleblowers if you can't know about them or the reasons they were thrown in jail. This is a step to getting that information and working on a legal vaccine. (IANAL, but I am a cautious optimist.)
- junto 12y ago
  One small step at a time. The Berlin Wall was not felled by bombs and guns, but the slow attrition of wall by the will of the public (and mistake over travel permissions by a civil servant). ;-)
MFergsn 12y ago
This battle was lost when the public accepted the term "secret laws" without rioting. Begging the state to disclose secret laws is like begging the executioner to disinfect the axe.
sbt 12y ago
I've never donated money to a political organization before, but I started an annual gold membership with the EFF. Initially I was sceptical, because I don't want to meddle in US politics as a non-US citizen. But these are global problems and the EFF does have a global agenda. I'm also very impressed with the work they do, even on smaller things like Privacy Badger. I encourage everyone concerned with privacy to pick up their bank card and chip in. We need to make this organization as strong as it can be. Congratulations to the EFF.
Aoyagi 12y ago
I'm curious, does EFF fight for the global "internet freedom" or just for American one? I know those two are tied, but they aren't the same.
- eukaryotia 12y ago
  The freedom will trickle down.
- jessaustin 12y ago
  USA is arguably the greatest threat to global internet freedom, although in specific locations there are other threats.
- msg 12y ago
  https://www.eff.org/issues/international https://www.eff.org/issues/international Asked and answered. They are for everyone.
- patronagezero 12y ago
  They're a facade, a ruse to convince the american's that they still have a say in the matters of the US Government. This should have been obvious when they took the hot air of their contributors and flew it over the NSA HQ.

582 points by declan 12y ago

This is really wonderful work by the EFF. Legal opinions are not dangerous. They don't disclose the locations of undercover agents or anything like that. It's a contempt to the legal profession to keep them secret so that their reasoning cannot be scrutinized by courts. A lawyer's job is to make the best possible argument for her client's position, but if the court says she's wrong--and it's within the court's sole provenance to say what the law is--then she must acquiesce.

shmerl 12y ago
> Legal opinions are not dangerous. They are dangerous for those who prefer to keep society in the dark about their questionable practices.
sitkack 12y ago
> The U.S. Department of Justice today filed a motion to dismiss its appeal of a ruling over legal opinions about Section 215 of the Patriot Act, the controversial provision of law relied on by the NSA to collect the call records of millions of Americans. As a result of the dismissal, the Justice Department will be forced to release a previously undisclosed opinion from the Office of Legal Counsel (OLC) concerning access by law enforcement and intelligence agencies to census data under Section 215. By the government backing out, it _doesn't_ set legal precedent for the release or prevention of secret ruling. They lost a battle to continue the war.
- spiritplumber 12y ago
  If this can be iterated, then the good guys will win.
  - raquo 12y ago
    Congress can introduce bullshit faster than EFF can fix it, so no – this process does not converge to anything good.
- nitrogen 12y ago
  Sometimes I wonder if the government should be required to follow all cases through to a court ruling, so that precedent can be established when appropriate.
  - spacemanmatt 12y ago
    Yes and no; There are already some rules governing case abandonment but we definitely don't need a government obligated to follow through every fool action it initiates.
    - emhart 12y ago
      If you have the time, could you elaborate on those rules? I know nothing about that field, but am very curious.

Quanticles 12y ago

The ability of the public to challenge the government in court and win on an issue like this is a large part of why America is so successful - the citizens are what removes government rot and keeps the system running well.

thinkling 12y ago
Oh how I wish I agreed with that. I recognize the huge value of a healthy justice system, but at the same time (a) there's so much we still cannot get through this type of legal process (National Security Letters, anyone), and (b) there's so much systemic rot that cannot be addressed this way (e.g., campaign financing) or in any other way that seems tractable to me.
- Normati 12y ago
  It's quite tractable, stop voting for the same two parties that keep causing the problems over and over again. The trouble is, most of your voting neighbors don't mind so they perpetuate the problem - there's the downside of democracy, two wolves and a sheep.
  - chrisbennet 12y ago
    Not sure why you got downvoted, but you make a good point. Political parties change their "offerings" when they lose votes. Analogy: When 2 large competing grocery chains start loosing business to small organic stores the big stores will start carrying organic food. The small organic store will never dominate the big stores but they can cause the big guys to change.
  - colordrops 12y ago
    I fully agree that voting for third parties is the way to go, but currently the public has been propagandized to believe that voting third party is wasting your vote, or even worse, causing harm. They are convinced that their vote is wasted by a propaganda video going around that describes the US system as a "first past the post", in which it is impossible for third parties to win. They are convinced that third party voting is harmful as it supposedly causes a spoiler effect. As long as people are brainwashed against voting third party by these flawed memes, the problem will remain intractable.

jriordan 12y ago

Here's why census data is relevant: If you receive an extended survey from the U.S. census, you are legally required to fill it out with all sorts of personal data. If you don't return it, a census rep will hound you until you do. The "Privacy Policy" for this data is on the U.S. Census website here: http://www.census.gov/about/policies/privacy/data_protection.html http://www.census.gov/about/policies/privacy/data_protection... Note the statement that "the statistics we release do not identify individuals or businesses". During the last census, it became pretty obvious that this would be an effective way for the U.S. Government to compel information from people who were suspected of something. Section 215 of the Patriot Act, after all, gives the government carte blanche to obtain any "tangible" thing. IMHO... the interesting questions to ask when this legal opinion is released are: 1. Was there ever any accuracy to the U.S. Census "Privacy Policy"? Were the privacy policies of the U.S. Census misrepresented to the public, and in particular to those who were required to complete an extended survey? 2. Does the legal opinion address the "third-party doctrine" when the information provided is provided under legal compulsion, and in particular with potential (if commonly unused) penalties for non-cooperation? A very interesting test case would be for someone to sue the government, in light of the upcoming 2020 census, to test the constitutionality of the criminal liability for not completing the extended survey in light of the government using the information provided for potential law enforcement purposes. It should be easier than usual to establish standing since anyone can be forced to complete one of these extended surveys.

orblivion 12y ago
> If you don't return it, a census rep will hound you until you do. In theory.
- jriordan 12y ago
  And very much in practice. Census reps -- all those temp workers that provide a reliable employment spike -- are instructed to pay multiple home visits to anyone who hasn't completed a questionnaire, extended survey or not. They are also instructed to remind holdouts of criminal liability for not responding. And they do! Also census reps must take an oath to not disclose individual information: http://www.census.gov/acs/www/about_the_survey/oath_nondisclosure/ http://www.census.gov/acs/www/about_the_survey/oath_nondiscl... How this comports with Section 215 access to individual data will be interesting to see.

msabalau 12y ago

If you found this encouraging, remember that donating to the EFF is a nice way to show appreciation. You can also set them up to benefit from amazon.smile if that strikes your fancy.

guiambros 12y ago
Great tip, thanks! Didn't realize EFF was one of the options. I'll alternate between my current choice on amazon.smile, and EFF, besides the direct contributions.
deleted 12y ago
[deleted]
- etrautmann 12y ago
  can you elaborate?
  - tedivm 12y ago
    I'm guessing he's referring to blog posts like this one- https://www.eff.org/deeplinks/2014/04/tea-party-taxes-and-why-patriots-wouldve-revolted-against-surveillance-state https://www.eff.org/deeplinks/2014/04/tea-party-taxes-and-wh... Personally I'm happy to see issues that the left and right can both agree on, and don't really see an issue with EFF doing this if it helps accomplish their goals.
mkal_tsr 12y ago
Piggybacking on this... If you shop with Amazon.com, you can use the subdomain, smile.amazon.com to donate to your favorite charity, of which EFF is a part! So, if you'd like to 'passively' donate to the EFF, you can change your smile.amazon.com settings (and ensure you shop/checkout w/ the Smile subdomain) and a portion of your purchase will go to the EFF. There are many organizations and charities that are a part of the Smile program, so choose whichever you'd like to support.
- 12y ago

aaron_m04 12y ago

Winning battles like this doesn't mean much as long as whistleblowers are thrown in jail and ignored by major US media outlets.

HCIdivision17 12y ago
But it means significantly more than nothing. Incremental improvement matters, and each success paves the next step toward the big important goals. There isn't a magic switch to just flip this enormous machine on its head. It's a crude, long, and brutal slog beating back the nonsense and cruft built up allowing such personal liberty injustices, and this is just another step. You can't protect whistleblowers if you can't know about them or the reasons they were thrown in jail. This is a step to getting that information and working on a legal vaccine. (IANAL, but I am a cautious optimist.)
junto 12y ago
One small step at a time. The Berlin Wall was not felled by bombs and guns, but the slow attrition of wall by the will of the public (and mistake over travel permissions by a civil servant). ;-)

MFergsn 12y ago

This battle was lost when the public accepted the term "secret laws" without rioting. Begging the state to disclose secret laws is like begging the executioner to disinfect the axe.

sbt 12y ago

I've never donated money to a political organization before, but I started an annual gold membership with the EFF. Initially I was sceptical, because I don't want to meddle in US politics as a non-US citizen. But these are global problems and the EFF does have a global agenda. I'm also very impressed with the work they do, even on smaller things like Privacy Badger. I encourage everyone concerned with privacy to pick up their bank card and chip in. We need to make this organization as strong as it can be. Congratulations to the EFF.

Aoyagi 12y ago

I'm curious, does EFF fight for the global "internet freedom" or just for American one? I know those two are tied, but they aren't the same.

eukaryotia 12y ago
The freedom will trickle down.
jessaustin 12y ago
USA is arguably the greatest threat to global internet freedom, although in specific locations there are other threats.
msg 12y ago
https://www.eff.org/issues/international https://www.eff.org/issues/international Asked and answered. They are for everyone.
patronagezero 12y ago
They're a facade, a ruse to convince the american's that they still have a say in the matters of the US Government. This should have been obvious when they took the hot air of their contributors and flew it over the NSA HQ.