
NSA Spying Documents to be Released As Result of EFF Lawsuit - wlj
https://www.eff.org/deeplinks/2013/09/hundreds-pages-nsa-spying-documents-be-released-result-eff-lawsuit
======
spodek
Great news!

Let's put it in context. In a nation of over 300,000,000 people, in which we
_know_ several departments of the executive branch are spending billions to
spy on the world in gross violation of the Constitution, it seems only one or
two people (Snowden and Manning with help from the press), and one or two
organizations (EFF and ACLU), are able to make _any_ meaningful progress.

The legislative branch has done almost nothing and is largely complicit. The
judicial branch has been largely complicit except when motivated by the EFF
and ACLU and didn't help with Manning. Same with the press. What's left? What
other successes can we build on? What historical models can we learn from?

Probably everyone reading this wants to help. Surely we can come up with some
way to do something. We can contribute resources to the EFF and ACLU. Frankly,
I don't see marching in the streets helpful, but I'd love to be proved wrong.
What else?

WE'RE TECHNOLOGY ENTREPRENEURS! We claim to understand the issues and know how
to create and lead teams and marshal resources to meet demand. If any progress
is to happen, IT HAS TO START HERE WITH US.

What else can we -- you and I -- do?

\- Can we motivate and support more whistleblowers so future ones don't have
to fear jail and persecution?

\- Can we contribute more time, money, and other resources to the EFF and
ACLU?

\- Can we create new organizations to augment their work?

I have to believe we have more ideas in us. What else can we do? Can YOU add
to this list?

~~~
rayiner
> in which we know several departments of the executive branch are spending
> billions to spy on the world in _gross violation_ of the Constitution,

We don't know that at all. The closest thing we have is a FISC opinion which
declared certain minimization measures to be unconstitutional which aren't in
place any more.

~~~
hobs
To be fair, how could we know whether or not the spying was unconstitutional
given nobody could sue over it because it was a secret program that by its
very nature went unacknowledged.

~~~
mpyne
To be fair, how could we know this about any of hundreds of other government
programs that touch our lives, whether we know about them or not?

Mandated vaccination regimes? We know about those, but what about the specific
drugs/vaccines that go in each regimen? I don't remember voting for the person
at HHS overseeing that.

Nuclear weapons development and stockpiles? How do you know those are being
properly supervised or not?

Foreign military sales? How do you know we're only giving our allies ships and
other arms that wouldn't give away vital American secrets?

Or what about IRS tax audit policies? How do we know those are applied
constitutionally?

Or abroad, how do we know that our diplomats are not doing anything shady?

Or even at home, how do you know the local cops don't have a pen register
wiretap running on your cell phone tower this very day?

And it could go on and on. When it comes to the USG it's frankly a bunch of
"unknown unknowns" that the people similarly can't really pre-emptively sue
about. That's why it's important to get the built-in transparency and
oversight measures correct in the first place, as the job of oversight is far
too complicated to leave to the people alone.

------
devx
Congress should be following Bruce Schneier's advice, and appoint a special
independent prosecutor with full powers to see everything that's happening
within NSA, and to be able to take confessions from NSA employees, without
them fearing repercussions. The NSA needs to be reined it, and it needs a full
audit.

[http://www.theatlantic.com/politics/archive/2013/09/the-
only...](http://www.theatlantic.com/politics/archive/2013/09/the-only-way-to-
restore-trust-in-the-nsa/279314/)

~~~
meddlepal
Why would congress want to do that? They approved all this and they don't seem
interested at all in stopping it.

~~~
Amadou
No, they didn't approve it.

Jim Sensenbrenner, Author of the PATRIOT Act, has himself said that the
presidents' interpretation are an abuse of the law.

[http://www.guardian.co.uk/commentisfree/2013/jun/09/abuse-
pa...](http://www.guardian.co.uk/commentisfree/2013/jun/09/abuse-patriot-act-
must-end)

If the guy who wrote the law says, "that is not what I meant" it is pretty
clear that what congress voted for and what they got are two different things.

~~~
mpyne
> If the guy who wrote the law says, "that is not what I meant" it is pretty
> clear that what congress voted for and what they got are two different
> things.

And so when people warned him that the law he _actually wrong_ might be used
to create programs that _actually happened_ , why didn't he reword the law to
conform to what he says he meant?

Either way, doesn't matter one fig what Jim personally meant when he drafted
the law; what does Congress think they _passed_ is the different question.

Just like you shouldn't proofread your own writing, you shouldn't assume 535
legislators and a President came to the same meaning of your draft legislation
as you had in mind when you drafted it.

~~~
Amadou
Your proof-reading example doesn't fit this case. When you write something,
the people who read it rarely also talk to you about it.

In congress, most bills are "lobbied" for by the authors - they go around
talking to other members of congress to try to sell them on voting for it. In
such a situation it absolutely matters what the author thinks the bill says
because, if nothing else, it will have a large effect on how the bill is
perceived when it is later read. In the specific case of the patriot act most
members of congress did not even read it before voting on it. The _only_ thing
they had to go on is how it was presented by the author.

[http://sunlightfoundation.com/blog/2009/03/02/congress-
had-n...](http://sunlightfoundation.com/blog/2009/03/02/congress-had-no-time-
to-read-the-usa-patriot-act/)

------
marijn
Organizations like EFF and ACLU are extremely impressive—they are one of the
very few effective actors that actually seem to be able to strike blows at the
current wave of authoritarian madness. I wish their German and European
counterparts managed similar feats.

~~~
bad_alloc
Who would these counterparts be?

~~~
cyphax
In the Netherlands, there's Bits of Freedom for example
([https://en.wikipedia.org/wiki/Bits_of_Freedom](https://en.wikipedia.org/wiki/Bits_of_Freedom))

~~~
TheLegace
OpenMedia in Canada has been successful in changing government positions on
Internet regulations(Unlimited Bandwidth).

[https://openmedia.ca/](https://openmedia.ca/)

------
rayiner
The released information will be legal opinions:

"[O]rders and opinions of the FISC issued from January 1, 2004, to June 6,
2011, that contain a significant legal interpretation of the government’s
authority or use of its authority under Section 215; and responsive
“significant documents, procedures, or legal analyses incorporated into FISC
opinions or orders and treated as binding by the Department of Justice or the
National Security Agency."

This is actually a huge win, because it will show the legal theories
underlying the NSA surveillance. This will help us figure out whether the
surveillance is Constitutional, and also give insight into what sorts of
surveillance is being conducted.

------
ChrisAntaki
EFF continues to impress.

~~~
einhverfr
I have noticed that the ACLU has a tendency of making dubious choices when
they run into a conflict between agendas (i.e. supporting corporate free
speech in Citizens United and then opposing the same in Elaine Photography v.
Willock. The EFF seems to have fewer qualms defending enumerated civil
liberties online.

I have come to _really_ appreciate the EFF. I won't donate to political
candidates. I will donate to the EFF what I might have donated to political
candidates....

~~~
ewillbefull
> supporting corporate free speech in Citizens United and then opposing the
> same in Elaine Photography v. Willock

These two cases are completely different. One is about a non-profit being
prohibited from speaking about a candidate before a primary election, and the
other is about discrimination by a commercial service.

~~~
rayiner
Its a tough case. On one hand its a commercial service, which always gets less
speech protection. On the other hand photography is art.

~~~
einhverfr
Additionally suppose what was at issue was a slogan printed on every wedding
photograph which was clearly discriminatory because it was also political.
Something like, "One man. One woman. One holy marriage."

If a photographer does this, you _must_ choose between political speech and
non-discrimination because the political speech interferes with a right of a
vulnerable group to enjoy their purchased goods. Otherwise where do you draw
the line?

Or what do you do if a cake decorator insists on a similar slogan on the
wedding cake and opposite-sex decorations? Surely this is both political
speech and functional discrimination, right?

The EFF avoids this by having a narrower focus.

------
educating
The EFF is a great thing, but let's look at what they won:

> [O]rders and opinions of the FISC issued from January 1, 2004, to June 6,
> 2011, that contain a significant legal interpretation of the government’s
> authority or use of its authority under Section 215; and responsive
> “significant documents, procedures, or legal analyses incorporated into FISC
> opinions or orders and treated as binding by the Department of Justice or
> the National Security Agency.”

My interpretation of that is that the results could just include a lot about:
"As stated in (some law or regulation) case # (redacted) with regard to
(redacted), (redacted) is fully (or not fully) within the rights of the
government to do so."

So, I'm sure there will be some information there, but it will be about the
laws and regulations surrounding what is possible, not about the actions being
discussed. And, frankly I've known for years (who hasn't) that our government
wants an excessive amount of information about us with the intent to keep us
safe and/or dominate the world, so I don't need the EFF or our government to
spend much time on this. The EFF should be figuring out what can be patented
and what can be free, and our government should be doing what it can to boost
our economy in a long-term fashion while ensuring our freedom and safety. If
that involves an overreaching security group, so be it.

~~~
angrydev
The laws and regulations revealed in this document will be important for
targeted action on issues. Whether it was obvious to you that the government
was harvesting data on its people for years, we cannot fight what we have no
evidence about. With this release, we can actually pick out the laws that we
have an issue with, and target them for debate.

> our government should be doing what it can to boost our economy in a long-
> term fashion while ensuring our freedom and safety. If that involves an
> overreaching security group, so be it.

If you trust the government with that much power I suppose this whole issue
over surveillance seems quaint to you. Most people however would like to have
some input over the powers wielded by their government. Something about a 'for
the people, by the people' type thing.

------
bsimpson
So many people have accused Ed Snowden of treason, but it seems a lot less
likely that this would have happened had he not had the balls to allude to the
kinds of spying the federal government has been doing on the world.

Thanks Ed, and to all the awesome people at the EFF.

~~~
rhizome
If he was actually a capital-t Traitor, the government would not have to
release any relevant documents. This is to say that the government's arguments
would persist in their strength towards maintaining secrecy, but the fact that
these events are transpiring tells me that there is no _actual legal support_
for a treason charge (pace Dianne Feinstein). Otherwise, the NSA itself would
be acting against the interests of the nation by doing this, thus themselves
be traitors.

------
Sagat
Loud and assertive people get results in today's world. I applaud the EFF and
their aggressive legal actions.

------
bsimpson
In related, but largely unimportant news, the federal government has created a
tumblr account to post its surveillance-related propaganda:

[http://icontherecord.tumblr.com/](http://icontherecord.tumblr.com/)

and it's as ugly as anything you've ever seen come out of the federal
government. I still can't believe that someone makes those graphics for a
living, and still makes them look that bad.

------
deerpig
I wonder if big chunks of it will be redacted....

~~~
perlpimp
IANAL, wonder what does FIOA ruling entitles you to? can the government redact
everything except one sentence? Just wondering.

~~~
ics
Yes.
[https://www.eff.org/sites/default/files/images_insert/FISC%2...](https://www.eff.org/sites/default/files/images_insert/FISC%203.png)

Edit: 4th paragraph for another example.
[https://www.eff.org/deeplinks/2013/08/eff-victory-results-
ex...](https://www.eff.org/deeplinks/2013/08/eff-victory-results-expected-
release-secret-court-opinion-finding-nsa-surveillance)

------
wil421
I hope that what they release is actually something can be read in its
entirety and not redacted so much you can't read it.

[http://abcnews.go.com/m/blogEntry?id=19153896&ref=https%3A%2...](http://abcnews.go.com/m/blogEntry?id=19153896&ref=https%3A%2F%2Fwww.google.com%2F)

------
Mordor
Supposing the Justice Department has committed a crime:

\- What laws have been broken?

\- What individuals broke those laws?

\- What punishments are appropriate?

\- Who decides who is guilty?

\- Who gives out those sentences?

\- Where will the criminals be held?

Additionally, is the President at liberty to override them?

If all else fails, would it be possible for the people to set up their own
courts outside of the Justice Department for this purpose?

~~~
rayiner
Violating the Constitution is not a criminal offense, for obvious reasons.
When the FEC tried to enforce McCain Feingold in Citizens United, and parts of
the law were declared unconstitutional, should the people at the FEC who
engaged in the enforcement action have been criminally charged, tried, and
punished?

Also, the federal courts aren't in the Justice Department, which is a division
of the executive branch. They're part of the judiciary, which is a separate
co-equal branch.

~~~
reginaldjcooper
> should the people at the FEC who engaged in the enforcement action have been
> criminally charged, tried, and punished?

Ideally, yes! We would have far fewer "good Germans" for the internet to
Godwin about.

Pragmatically, no, anyone other than a judge or lawyer cannot be expected to
know what is constitutional or not.

~~~
rainsford
And at least as importantly, people outside the judicial branch aren't legally
empowered to determine the constitutionality of laws. Allowing the executive
branch and its employees to treat laws as unconstitutional, all on their own,
would open up a ridiculously large can of worms.

~~~
danielweber
Maybe it would, but everyone punting the issue of "is it Constitutional?" to
the judicial branch is also a violation of ethics. What if they mess up once?

The Legislature should not pass laws without sincerely believing they are
Constitutional, and the Executive should not sign laws without believing they
are Constitutional. Bush 43 violated this -- he thought McCain-Feingold was
unconstitutional but punted the hard unpopular decision to Someone Else.

~~~
rainsford
I would agree that the legislative and executive branches do have some
responsibility to write and sign laws they actually believe are
constitutional. Just punting that to the courts does seem like a cop out.

I was talking more about laws that have already been written and signed since
we were talking about the actions of the FEC in the context of McCain-
Feingold. Absent extreme cases (like death camps or something), I don't think
the FEC or its employees would have any legal right (or responsibility) to
decide for themselves that McCain-Feingold was unconstitutional. Giving them
that power and responsibility is the can of worms I was talking about.

------
rtconner
Sometimes things happen in America that do make me happy about how this
country works.

