
Judge orders Google to comply with FBI's secret NSL demands - declan
http://news.cnet.com/8301-13578_3-57587003-38/
======
dmix
I love looking up these judges track history with technology:

<http://en.wikipedia.org/wiki/Susan_Illston>

> Sony v. Hotz

> Currently, Illston is the presiding judge in Sony Computer Entertainment
> America LLC v. George Hotz, et al.,[13] in which Sony claims that Hotz's
> jailbreaking of the Sony PlayStation 3 violates the Digital Millennium
> Copyright Act.

> She has granted Sony permission to track as much information as possible
> about those who had seen a private YouTube video about the jailbreak and to
> read their comments, plus obtain access to IP addresses, accounts, and other
> details of visitors to sites run by Geohot. The access granted by Illston
> extends even to those who had not downloaded the jailbreak code.

So clearly her interest in information privacy is non existant.

~~~
rayiner
The context of the order in Sony is with respect to discovery in an ongoing
trial. There is very little "information privacy" with respect to the power of
a court to seek out evidence in a trial, from anyone that might have it. See
Elkins v. United States ("The pertinent general principle, responding to the
deepest needs of society, is that society is entitled to every man's
evidence.").

But that's a very different issue than privacy rights in general.

~~~
venomsnake
_The access granted by Illston extends even to those who had not downloaded
the jailbreak code._

I would say this puts it a bit out of the comfort zone.

~~~
rayiner
The judge granted access to get IP addresses of visitors to his website,
whether or not they downloaded the code, which would be relevant to Sony in
proving how widely the information was disseminated. There is nothing unusual
about this. Information relevant to a claim or defense is fair game for a
court's subpoena power. If this was a murder case, that took place in an
apartment, the judge would allow the prosecution to subpoena the lobby's
visitor logs, even as to people who were not visiting the victim's apartment.
This doesn't say anything about the judge's views on "information privacy"
just about the fact that there really isn't any as against the subpoena power
of a court. If the material is private in some way, it will be treated
confidentially and redacted in public filings, but that's about it.

That's the problem with talking about a "right to privacy" in Anglo American
law: there really isn't one. There are various protections serving different
purposes, but they're not unified into some overarching principle of a right
not to disclose or have information disclosed. That's why the subpoena power
is so much broader than the power of police to search: because the animating
principle isn't "privacy" but rather the protection of criminal defendants. If
it were about privacy it wouldn't make sense to e.g. treat witnesses, who can
be compelled to testify, differently than defendants, who can't.

Now, I'm not arguing that this is the best possible way to do things. But it's
the way we have been doing it for centuries (since the Middle Ages).

~~~
venomsnake
Another question - are there any protections from Sony using the information
in other non case related activities -extortion letters similar to porn sites
come to mind.

~~~
rayiner
A subpoena is a signed litigation document, which means it's either ordered by
the court or issued by an attorney of record. Abuse of the subpoena can result
in sanctions on both the attorney who signed it and his or her client. It can
also run into various statutes (e.g. the 9th circuit allowed a suit to proceed
against an attorney who issued an overbroad subpoena for e-mail under the CFAA
under the theory it was equivalent to hacking the e-mail provider). Extortion
is of course also illegal. Finally, witnesses can invoke the 5th to avoid
producing information that might incriminate them in a subsequent criminal
case.

As a general rule, there's "no money" in doing something like that. You run
the risk of getting sanctioned, and if you use the information improperly in
other litigation, it'll just get excluded as having been obtained via abuse of
a subpoena.

The bigger worry is stuff like this, which doesn't happen under court
supervision: [http://www.wired.com/threatlevel/2012/08/administrative-
subp...](http://www.wired.com/threatlevel/2012/08/administrative-
subpoenas/all).

------
DanielBMarkham
The sad thing here is that there is a real war on terror, no matter what you
hear. There are actual violent-minded individuals that the state has an
obligation to track and protect us from.

But the powers granted to the state to do this are humongously broad. It's
ludicrous to have the FBI be able to write letters and retrieve any of your
online activity it wants -- all without you knowing about it. The IRS has even
more power. It can pull your records without the NSLs. All you have to be is
"interesting" to them. (Don't know if they've exercised this power yet, but
it's coming)

So when corporations like Google complain, out trots the assistant director to
give classified testimony about all these evil folks in the world. Yes, sure.
But one doesn't justify the other. I'm really happy somebody is doing
something about bad guys right now. What I worry about is a few years down the
road when all of this security state nonsense is used for political reasons.

Some people think you have to be afraid of the government knowing too much
about you. Some people think you have to be afraid of corporations knowing too
much about you. Some people worry that we can easily find out too much about
just about anybody (facial recognition Google glass tied back to something
like Spokeo isn't far off). But it's not an either-or choice. All of these
factors work together, as we see in this case.

This is not going to end well.

~~~
jacquesm
> The sad thing here is that there is a real war on terror, no matter what you
> hear.

No there isn't. That's the whole trick. It's a mind thing, as long as enough
people believe there is a war on terror there is a war on terror, when they
stop believing they'll resort to good old police-work and the judicial system
to back it all up.

See Spain and the bombings there, the UK and the bombings there, India and the
bombings there and so on. Everybody else seems to treat it as a series of acts
by loosely organized and funded individuals that don't seem to have a common
goal or even coherency about their deeds.

And the best bit: it doesn't work. You can't declare 'war' on lone wolves or
small cells if they're careful enough. Any idiot (you, me, any other visitor
here) could turn around and become a terrorist tomorrow, there would be no
other outward distinguishing factor, just that bit that flipped in our heads.
And by the time there would be an outside observable factor (objects going
'foom') it would be way too late.

~~~
venomsnake
I think the best summary of the war on terror can be found in the fact that
the US is forcibly feeding the "terrorists" in Guantanamo while parts of the
government are trying their best to cut the money for food stamps for people
that are starving.

~~~
lotsofcows
Even with the quotes, that's still too strong a statement. Until they have
been processed by a court they are innocent.

The USA has held innocent people without a trial for over a decade. Some of
those people were children when "arrested".

This situation weighs against every American and yet it's still ongoing.

~~~
threeseed
It is without doubt a terrible situation that should never have happened to
begin with. It's a modern day POW camp. The problem that nobody seems to be
able to answer is what exactly you do with them. Their home countries don't
want them and the logistics of simply releasing them into the US is very
complex i.e. what will they do and what if they don't want to be there.

~~~
nitrogen
If nobody wants them, is allowing them to complete their hunger strike not a
more humane option than force feeding them with tubes?

------
mindcrime
In a free and open society, we can't accept a government which operates in
secret. If our government is to be accountable to the people, it needs to be
transparent in what it's doing and how it's doing it. Just crying "national
security, national security" doesn't magically make it OK for the government
to do whatever it wants.

I've often considered that if I were in a position to receive one of these,
that I'd turn around and publish it on the web immediately after receiving it,
and just accept the consequences. If that day ever comes, I hope I have the
courage to go through with it.

~~~
mhurron
> In a free and open society

The people do not seem to want to live in a free and open society.

~~~
forgottenpaswrd
Cynical view, most people can't understand what a computer is or what it could
do.

Most people can't understand how easy is for the government to access the
pictures they post on facebook.

This does not mean they don't care.

~~~
cinquemb
"Today, nobody cares… But tomorrow, they will…" - Wasalu Muhammad Jaco

<https://www.youtube.com/watch?v=Ge4BEdyZ8bM>

------
CurtHagenlocher
The most insidious thing about this is that the government is probably
precluded from collecting the kind of information about us that companies like
Google and Facebook routinely gather. But as long as someone else has already
done the work, the government can just demand the information.

~~~
magicalist
To be fair, that's literally the point of a search warrant (/subpoena/"demand
letter"). It's a bit like saying that the phone company has already done all
the work identifying who you call. Well, yes, that's what you use them for. I
assume your point is more that we use these services for more than any one
service in the past.

The real issue in this case, however, is that the FBI can request the data and
no one will ever know that they did. That can only lead to abuse. How many of
those 192,499 requests were actually used to fight terrorism? Well, we can't
find out...

~~~
axus
National Security Letters are warrant-less. A search by the government is
[should be] only legal if it meets the conditions of the Fourth Amendment.

~~~
rayiner
Not all searches under the 4th amendment require a warrant.

The structure of the 4th amendment is a little bit non-obvious (see:
<http://lawlibrary.unm.edu/nmlr/10/1/03_stelzner_fourth.pdf‎>).

The text reads: "The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized."

The ", and" between "violated" and "no Warrants" complicates the
interpretation.[1] At common law, there was a well-understood universe of
things that required warrants. Thus, the comma can be read as creating two
separate requirements:

1) All searches must be reasonable; and 2) All warrants (to the extent that a
search requires a warrant) must be supported by probable cause.

This reading admits the possibility of searches that are reasonable but don't
require warrants. And this is a common sense category (e.g. very few people
would say that police should have to go get a warrant to search a robber
caught at the crime scene for weapons).

Contemporary battles tend to be over what kinds of searches require warrants.

This isn't just a battle over grammar, however. It's a question of: "what did
we agree on the scope of the government's powers being?" As a general rule,
the law doesn't constraint the government's ability to subpoena information
from a third party without a warrant. E.g. if you're being prosecuted for
fraud, the government doesn't need a warrant to subpoena your business
partners requesting all documents they have from their dealings with you. The
purpose of the 4th amendment is to protect you from the indignity of the
search, not to protect the information itself. Under that logic, you can make
a reasonable case that nothing should stop the government from subpoenaing any
information Google or AT&T have about you.

The real problem here is the secret nature of the NSL's, not the 4th amendment
issues, IMHO. One of the things that justifies the far-reaching subpoena
powers of common law courts is the fact that they are distributed, transparent
entities--nearly everything is a matter of public record.

[1] In plain speech, I might say: "I eat pizza, and I eat cake." The ", and"
combines two independent thoughts without any necessary relationship between
them, other than the fact that I like both. It could be the case that I never
eat pizza and cake in the same meal.

~~~
niels_olson
If the great majority of America agrees with that interpretation, despite 200
years of the contrary, I may have to resign my commission.

~~~
tptacek
Agrees with what interpretation, Niels? That it's "reasonable OR with a
validly issued warrant", or that it's "reasonable AND with a validly issued
warrant"?

------
rayiner
Relevant: "Illston, who is stepping down from her post in July, said another
reason for her decision is her desire not to interfere while the Ninth Circuit
Court of Appeals is reviewing the constitutionality of NSLs in an unrelated
case that she also oversaw.

In that separate lawsuit brought by the Electronic Frontier Foundation on
behalf of an unnamed telecommunications company, Illston dealt a harsh blow to
the bureau's use of NSLs."

------
javajosh
The mechanism for "watching the watchers" are the other two branches of
government. One of the most worrying things I've seen is that the judicial
branch seems unwilling to really oversee the executive branch. It's like
judges _want_ to abrogate their responsibility to check executive power. Are
warrants really that much of a headache? Are they really that slow? Do the
judges think that it matters that little to the public and the risk of harm
that low?

~~~
rayiner
It's not because judges think warrants are a headache. It's because judges are
deathly scared of being perceived as "judicial activists." The story of the
judiciary of the last 20-30 years is the story of the backlash against the
judiciary for liberal activism during the 1960's and 1970's, and a subsequent
tendency to defer to the political branches whenever possible.

As against the other two branches, all the court has is political capital.
Nothing stops the President or Congress from just ignoring a court decision.
The judiciary spent tremendous political capital during the civil rights era,
and doesn't have enough left to battle the current era of overreaches in the
name of national security. And in any case, national security was always one
of the areas in which the executive branch was considered to be supreme over
the other two branches.

~~~
declan
Judges don't wake up in the morning and say, "Well, I would like to do the
right thing and declare this surveillance unconstitutional, but there was that
Brown v. Board of Education sixty years ago, and so I'm going to punt!"
Especially when you have tenure for life and -- in the case of the judge
mentioned in my article that started this thread -- are voluntarily retiring
in a month anyway. (Even if you get removed from office, which of course never
happens, you'd get 5x - 10x your salary in the private sector.)

In general, lower courts follow the lead of appellate courts, which in turn
follow the lead of the Supreme Court. And on constitutional issues, those
justices don't like to get too far out in front of what they believe the
national consensus to be. That's why you have toothless rulings like U.S. v.
Lopez, a commerce clause case that conservatives initially applauded, only to
have Congress slightly tweak the law without complaint from the courts.

~~~
rayiner
> Judges don't wake up in the morning and say, "Well, I would like to do the
> right thing and declare this surveillance unconstitutional, but there was
> that Brown v. Board of Education sixty years ago, and so I'm going to punt!"

Sure, but there is definitely a "mood" in the judiciary. If you read opinions
from today versus those in say the 1970's, you can definitely see a self-
concious deference to the political branches that didn't exist back then. E.g.
compare the D.C. Circuit of the 1960's to the current one.

~~~
declan
You might be right. Or at least I'm not saying you're wrong. But do you have
any cites that compare then-vs-now?

In reality the DC Circuit spends much of its time today striking down
regulations enacted by the political branches, and actually takes some glee in
doing so. In HNesque areas, the court tossed out the Net neutrality
regulations and the broadcast flag regulations. There's a reason the president
wants to tilt the makeup of that court.

------
OldSchool
All they would have to do is go through traditional judicial procedure to
gather information and nobody would complain. That shouldn't be too much to
ask.

~~~
dmix
What's good for the goose, is good for the gander.

------
declan
FYI, folks, I just posted a new article about a different lawsuit in New York
in which the U.S. Department of Justice is asking a asked a Manhattan judge to
grant its "petition to enforce" the FBI's NSL:
[http://news.cnet.com/8301-13578_3-57587005-38/justice-
depart...](http://news.cnet.com/8301-13578_3-57587005-38/justice-department-
tries-to-force-google-to-hand-over-user-data/)

Discussion thread: <https://news.ycombinator.com/item?id=5799541>

------
SideburnsOfDoom
> The sad thing here is that there is a real war on terror

Yeah. A pity there isn't a war on furniture too.
[http://www.theatlantic.com/international/archive/2012/06/ame...](http://www.theatlantic.com/international/archive/2012/06/americans-
are-as-likely-to-be-killed-by-their-own-furniture-as-by-terrorism/258156/)

~~~
twoodfin
My god those comparisons are stupid. Was the U.S. getting involved in WW2 a
severe overreaction since Americans were massively more likely to die of polio
or black lung than Japanese or German bombs?

~~~
SideburnsOfDoom
A foreign military's bombs were intended as a prelude to invasion or
destruction of the entire military capacity. A terrorist attack is a prelude
to ... nothing much.

~~~
twoodfin
I don't think Japan was interested in destroying our entire military capacity,
just enough to get us out of the Pacific. It wasn't a radically dissimilar aim
than Al Qaeda's goal to get us out of the Islamic world, though just about
everything else about the two events was different.

As for a terrorist attack being "a prelude to ... nothing much", you know
there was a _first_ World Trade Center bombing, right?

------
coldcode
I wonder what would happen if Google told the FBI to bugger off and printed
the NSLs on the web.

~~~
MichaelGG
Fines, criminal charges?

More importantly, the USG could find evidence against the individual, even
invent something or help the target commit a crime, then "legitimately" say
"See, Google is directly protecting real terrorists", which would help the USG
far more than Google giving in to the NSLs.

~~~
rsync
I'll just leave this right here...

rsync.net Warrant Canary - <http://www.rsync.net/resources/notices/canary.txt>

------
SeanDav
The US government is missing the mark so completely, it is scary.

Does anyone here think that actual, real terrorists are going to be discussing
their plans using anything other than highly encrypted protocols, along with
code words?

These measures are absolutely of no use in catching anyone that is more
intelligent than a gnat that actually wants to harm the US.

~~~
alan_cx
I'm right with you in spirit, you should be 100% correct. But these terrorists
do keep using electronic communications.

I don't think any one serious and vaguely intelligent planning a major crime
would do so using electronic communications. Surely every one now knows that
it is iffy at best, and many believe that it is basically easily open to the
authorities at a whim. But over an over again, these terrorists and/or their
sympathisers do keep using electronic communications, then getting caught.
Almost every case I can think of that has ended up in court and is reported
on, has a big element of electronic communications evidence. It seems they are
indeed as intelligent as that poor gnat, (who is probably asking why he is
being bought in to it!!!). But, IIRC, a lot of the terrorists, we are told,
are pretty smart people. They are not trailer trash (US) or chav scum (UK),
they turn out to be degree level people, or students studying for degrees.
Smart people, right?

Ok, a fair number of them expect to die as a result of their terrorist action,
but as we saw in Boston, that was not the case for them. But, why risk the
"mission" being blown before it happens because of an electronic interception?
They then risk doing the time, with out doing the crime.

Worse still, it then gets used to justify the removal of various freedoms and
liberty from the average citizen. And so on....

What you are saying should be 100% correct. It really should. But insanely, it
isn't.

Quite bizarre if you ask me.

------
bloaf
What is to stop Google from simply giving the FBI the runaround for as long as
it takes to get the legality sorted out. They could agree to give them the
data and then cite technical difficulties, bureaucratic red tape, and other
mistakes to stall for a year or two.

~~~
declan
Contempt of court.

------
shitlord
What's with all the knee-jerk reactionary responses (and with all of them
repeating roughly the same thing)? Under our legal system, it really shouldn't
come as a shock to see how things turned out.

------
joyeuse6701
I fail to see why an NSL is even necessary when a warrant should suffice?

------
donrememberpass
Is this a good time already to start building service clones from other
countries that have a big stamp on it:

"FBI-SAFE! 100% guarantee there's no ~FBI CRAMPS~ on your private
communication, photos, locations, likes, etc we respect your privacy and we
care for the future of mankind! Want to live in dystopian 1984 future in just
about 10 years? We don't, too!

(service hosted and maintained in Brazil)"

~~~
walshemj
So the CIA station officer has a word with his counterpart - hint south
Americas security services don't exactly have a shining record.

~~~
donrememberpass
Still, that's not the point. The point is that all this madness is so fragile
and stupid that it can give lever for digital businesses overseas to have
competitive edge on yours by both not being forced to waste resources building
backdoors and surveillance into their systems(which also make them less
secure) and also by making them have an advantage no USA business will be
allowed to have ever, which is to offer privacy. It's probably what MEGA was
thinking.

Now when and if this happens the FBI will really see what's 'going dark'. Of
course, they have plenty of means to try influencing things their ways but
it's utterly unmanageable, if they choose to hack the servers and news break
that US Government agencies are hacking into legitimate businesses overseas,
it's not gonna sit well with both governments(Brazil, for example, is
historically a pacific country that tries to not interfere with anyone, how
will you make it into a terrorist country?) and to the general population,
they can also do it politically but this won't sit well with the country's
population too and are sure to have 'anti-american' vibes increasing, besides
that, each country has it's culture and takes on civil liberties(and the
chopping of them) and also it's own interests and industries it allows to
influence it's politics, in Brazil that would be Meat, Soil, Mining, Cars
industries... and if allowing privacy(or, at least, keeping civilian basic
constitutional rights) ends up helping the economy too then it may also be a
choice to be considered to support it too, right? Dunno if Hollywood bullshit
will stick everywhere, and going heavy-handed on other countries matters are
sure to spread the shit, there's plenty of countries in the world.

