

Response of US Govt to Google, Microsoft, Yahoo, Facebook, and LinkedIn [pdf] - rajbala
http://www.uscourts.gov/uscourts/courts/fisc/motion-declaratory-judgement-131002.pdf

======
jmduke
I'm not quite as rabid as a lot of HN commenters are about this entire issue,
but the following passage is near-comical:

 _Balancing the competing interests at stake, the Government has taken a
number of significant steps -- above and beyond what the law requires -- in
order to promote transparency and accommodate the the legitimate interests of
companies. For example, for the first time, in the winter of 2013, the
Government agreed that companies may report the aggregate number of NSLs they
receive, in numerical ranges and on a periodic basis._

When you're trumpeting the fact that you oh-so-graciously allowed companies to
report the _number_ of gag orders they received as some sort of great leap
forward in transparency, it's a bad sign.

~~~
sker
Reminds me of the Obama speech regarding Syria:

 _I don 't need Congress' or anyone's permission to strike Syria right now.
But since I'm such a nice guy, I'll just go ahead and let Congress have a vote
before I do it anyway, just for kicks._

~~~
robomartin
He actually saud that? Wow. Do you have a limk to video? This would certainly
reveal a mindset.

~~~
kevin_rubyhouse
I think he was paraphrasing.

~~~
GalacticDomin8r
I think he was paraphrasing and sensationalizing.

~~~
jbooth
Especially considering, in hindsight, the entire episode seems to have been a
masterful Bad Cop impression by Obama. I thought he looked like an idiot
during it, but somehow we got more than we could have expected from a coercive
cruise-missiling.

------
nickff
It is troubling to see that all the arguments presented by the US government
in this motion are based on the preservation of government power and the
ability of its agencies to conduct surveillance, rather than the constitution
and laws passed by congress.

Any and all concessions granted to plaintiffs in this motion are exercises of
the discretionary power of the federal agencies, rather than acceptance of the
limits which the agencies are legally obliged to comply with.

~~~
rtpg
Actually, the core of the counter argument is that the executive can declare
anything classified.

The argument for publishing from the companies is that this information is not
classified, but it's not their decision, it's (basically) the President's.

[http://www.fas.org/sgp/crs/secrecy/RS21900.pdf](http://www.fas.org/sgp/crs/secrecy/RS21900.pdf)

>The Supreme Court has never directly addressed the extent to which Congress
may constrain the executive branch’s power in this area. Citing the
President’s constitutional role as Commander-inChief,4 the Supreme Court has
repeatedly stated in dicta that “[the President’s] authority to classify and
control access to information bearing on national security ... flows primarily
from this Constitutional investment of power in the President and exists quite
apart from any explicit congressional grant.”5

The President decide's what's classified, the Supreme Court agrees that the
President has the constitutional authority to declare things classified. End
of story (at least for this case).

I think in general, it's important to note that the Courts have always ruled
in degrees. Nothing is absolute (which is why people can get thrown into jail
for hate speech), and the courts are the ones that decide up to where the line
gets to be drawn, balancing between rule of law and freedom. The discussions
about surveillance (and nat. sec. associated) are relevant.

~~~
nickff
I agree that the argument being made by the United States is based on the
ability of the executive to classify things. What I wrote was that the bulk of
the argument is dedicated to the preservation and extension of government
power, rather than compliance with the constitution and laws. Where the
constitution is mentioned in this document, the government is describing how
and why its explicit protections of fundamental rights should be circumvented,
in favor of the broad investment of power in the executive.

It should be noted that the government described no limiting principles which
would constrict its ability to censor or otherwise coerce any person.

~~~
consultant23522
What purpose would it serve the government to describe its limits?

~~~
nickff
The government could acknowledge limits, which would be made permanent by a
court ruling; these would serve to protect the rights of the citizenry.

Many legal doctrines require that limiting principles be attached to each
power granted to the government.

------
grossvogel
This makes me miss Groklaw.

------
Tloewald
I love the fact that significant portions of the document itself are redacted,
including the headings of the pages.

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rektide
_In their original motions, Google and Microsoft sought to publish on
aggregate number for all the FISA process they receive. After failing to reach
settlement with the Government, however, they amended their motions to see
krelief that owuld present an even greater risk to nation security: the right
to disclose the precise number of FISA processes they may receive under each
separate provision of FISA_ page 3.

It's mirth on display in this stanzas, pure and simple, and it's immensely
ugly and shameful: the Court is happy to defer from defending it's activities
by instead highlighting progressiveness in the demands for accountability.
Every inch more asked for is responded to by doubling the re-entrenchment of
secrecy.

------
cientifico
TL;DR: Don't open your company in America. You can target Americas markets
from any other part of the world.

------
kodablah
My favorite part right from the intro (and touched on elsewhere):

 _Releasing information that could induce adversaries to shift communications
platforms in order to avoid surveillance would cause serious harm to national
security..._

So now I wonder a few of things:

1\. The NSA will protect the companies who entered in a strong agreement with
them by using the "they can't lose customers, we need to watch their
customers" argument? If so, that means that companies may be encouraged to
enter a strong agreement knowing it will remain secret and they don't have to
spend time/resources validating requests. The only thing preventing the want
to enter a strong agreement with the NSA now is morality.

2\. If some companies are given the transparency and others aren't, isn't the
omission alone enough to assume it has entered in a strong agreement?

3\. Did these companies make the petition knowing there request for
transparency would not be granted on the levels they want so they can save
face to their customers saying "well, we tried"?

Edit: Formatting

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anaphor
The argument that they will know which services not to use is nonsense. It's
obvious to anyone with half a brain to not use things like Skype if you're
doing something that might attract the attention of the NSA, DHS, etc... even
terrorists would know to use open source things like mumble that support
encryption.

------
znowi
I read the motions and now this response and somehow it resembles a show for
the public. Big tech picked a minor surveillance issue of FISA orders
statistics and conveyed their care for user privacy. Government respectfully
denied and conveyed its resolve in fighting terrorism.

But none of those PRISM companies took part in public protests and none of
them supported Mozilla's initiative to reveal the NSA unlawful surveillance
practices [1].

[1] [https://stopwatching.us](https://stopwatching.us)

------
bangbang
TL:DR - A very polite "No!."

~~~
nuclear_eclipse
More like a very polite "Fuck, no!".

~~~
Cakez0r
Fuck no, fuck you and fuck off.

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codezero
So many things in this response come across as terribly condescending and
dismissive.

    
    
      The companies assert that the secrecy requirements
      apply only to particular surveillance targets. 
      But that implausible reading ignores the forest 
      for the trees.

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rtpg
I wonder if the companies get to see the redacted part. If not, it's odd for
them to be present

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cipherzero
Seriously what could be in the headers and footers that need redacting?! it's
like 4 words.

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Sprint
Response to what?

~~~
Cakez0r
Requests for permission to be more transparent with users regarding the level
of surveillance they are obligated to provide to the US Government.

~~~
Sprint
cheers

