
Internet Archive successfully fends off secret FBI order - emilong
https://theintercept.com/2016/12/01/internet-archive-fends-off-secret-fbi-order-in-latest-victory-against-nsls/
======
micaksica
I'm curious how many of these "NSL"s actually have anything to do with actual
national security investigations, or if they are just defaulted to if there is
a politically plausible excuse that it has something to do with national
security.

For example: NSL used to go after an ISIS propagandist working within the
United States and is a US citizen. They've got information he is talking to
ISIS/ISIL via an NSA intercept. They know who he is, he is pretty well
involved and known to be involved in radical Islamic terrorist activities and
social circles, to the FBI and others. They NSL to get information with the
gag required to not tip off and close up the whole cell or disclose IC
practices used against foreign adversaries.

However, I can see this case being more likely:

US Citizen on Twitter quotes the Qu'ran a lot, and writes a lot in Arabic. One
day they quote a verse that sounds militant, or say something that seems like
it may be an indirect frustration with USG, US citizens, or @-replies somebody
who is within a couple of degrees of an investigated radical. Some keyword
search FBI runs on the Twitter firehose picks this up and an analyst says "eh,
this guy looks sketchy." FBI wants info, doesn't want to cycle through the
courts, and knows they can NSL and say it's "because terrorism", even though
the person in question is more being profiled for something innocuous than
they are actively involved in anything radical (i.e. it's perfectly legal to
be a religious Muslim in the United States.)

I've a feeling more often than not this is water taking the path of least
resistance, and it's easier for special agents to issue these and that's why
they issue them so often. Unfortunately we only get to see what an NSL looks
like, but I'm curious who the guy is they were going after and what "national
security" threat this guy really is or was.

~~~
click170
I honestly believe people working for three letter agencies don't see this as
a distinction. They're both "because terrorism" and technically, that's
correct.

You and I can probably agree that one of them is overreach, but I don't trust
that they have internal mechanisms to discourage overreach - that would be
counter to their interests.

Edit: Clarification

~~~
micaksica
This is dangerous and this banality of the process is what will lead us to an
actual authoritarian state.

The FBI is made up of humans and humans are lazy as well as judged on the
effectiveness of their jobs. Regardless of if you are an American paladin-cop
or a boring FBI bureaucrat, you're going to take the path that makes it easier
for you. And aside from a few underfunded, underpowered civil liberties groups
bringing a swarm of mosquitoes to the firefight, the FBI/DOJ has the real
power here. They get to use the virtually limitless funds of citizens to
operate in the letter of the law _or_ the spirit of the law, depending upon
what is advantageous, and will issue charges on the letter of the law _or_ the
spirit of the law, depending on what is advantageous.

The depressing fact of the matter is that the natsec apparatus will remain the
winning side until mainstream perspectives on policing change; this "victory"
rings hollow and the fact that it took years to publish a redacted note is
overall worth as much fanfare cutting a rhinoceros with a razor blade. We're
celebrating a slaying of the beast right before it goes and gores somebody
else. (I'm celebrating too, but I'm not going to deny it's more for morale
than substance.)

For non-activists, though, _it is easier to believe that the system works as
intended_ and people _want to trust that it works as intended_. I don't think
America is truly authoritarian as much as it is too lazy to pay attention
until either the guns are pointed at them or the _panem et circenses_ dry up,
but by then it's too late. I don't actually blame the FBI or any TLA here. If
we don't like this, the finger should be pointed at anyone who encourages this
behavior or turns a blind eye to it.

~~~
RCortex
> though, it is easier to believe that the system works as intended and people
> want to trust that it works as intended. I don't think America is truly
> authoritarian as much as it is too lazy to pay attention until either the
> guns are...

I wonder if people just don't know how to make a difference. I wonder what
would happen if schools taught activism as part of social studies. The idea
itself is absolutely hilarious. A lot needs to be taught in social studies,
like just getting kids to get along adequately

------
banashark
It's great that the EFF was able to help them out with this.

I don't know of any other organizations that would even be able to help out in
a situation like this.

I donated to the EFF the other day, here is a link for anyone who is
interested in financially supporting this type of work:
[https://supporters.eff.org/donate/power-2016-w](https://supporters.eff.org/donate/power-2016-w)

~~~
hackuser
It's also great that Brewster Kahle and the Internet Archive invested their
time, energy and resources, and took some risks, to stand up for someone else
and for all of us.

Thanks to everyone involved. If the U.S. (or any country) is going to be the
land of the free, it will only be when each citizen makes it that way.

------
imh
>As a result of their fight, the FBI folded, rescinding the NSL and unsealing
associated court records rather than risk a ruling that their surveillance
orders were illegal.

This scares me. I know why we have a legal system that allows this kind of
behavior, and those reasons are good, but the few times someone pokes someone
with the resources to fight back, they get to say "nevermind!" instead of it
being ruled that they can't go around poking people like that? Then they keep
going around hurting everyone else. It's a terrible state of things that
systemically leads to bad behavior, but I can't think of a better system :(

~~~
taejo
The system has ways to deal with this type of problem [0], it just needs to
use them.

[0]
[https://en.wikipedia.org/wiki/Mootness#Voluntary_cessation](https://en.wikipedia.org/wiki/Mootness#Voluntary_cessation)

------
joering2
_As a result of their fight, the FBI folded, rescinding the NSL and unsealing
associated court records rather than risk a ruling that their surveillance
orders were illegal._

This part angers me the most. So basically it was a bluff. Either that or if
this was serious than FBI is reckless and incompetent. Because someone
decided: "oh crap this is getting some publicity, we didn't want it because we
didn't want him to be tipped off, but now since we have to defend ourselves
and judge might be on their side, let us just forget about tipping him off."
So then if he really make some terrorist related decision based of knowing
they after him, who am I supposed to blame as a law abiding citizen who pays
his taxes and demands FBI to be serious??

I will await for the day when one judge will say: "well wait a second this
might be criminal I want to see what you guys really up to, now its too late
you can't withdraw".

~~~
billiam
I am not saying it is right (it isn't) but this is what the FBI does: they try
to intimidate bad people and innocent people alike, skirting the edge of the
law or outright violating it.

------
jrnichols
I saw some recent article saying that they were asking for donations because
they wanted to move everything to Canada, as they were "afraid of Trump." Yet
it's currently Obama's administration still, and that's what's actually
causing problems.

Odd.

~~~
username223
Odd? You ain't seen nothin' yet.

Power corrupts. Absolute power corrupts absolutely. Obama showed far less of
an authoritarian streak than either Trump or Clinton (or Bush 43), but he
ended up embracing drone strikes and NSLs once he saw their convenience. I
feared how Clinton might use this power, and I can't even imagine what Trump
will do.

------
moreira
It's good to see that it's now possible to fight these NSLs off. The people
receiving them can require a court to review the NSL before complying, and
that just seems much, much better to me. The FBI can no longer just gag people
and force them to comply without judicial oversight.

~~~
hood_syntax
It is much better, but what of the judges? They defended themselves here, but
who's to say the FBI won't find judges that is favorable to their interests? I
assume it's not a different judge

~~~
hackuser
A legitimate problem, but what is the solution? At the end of the day, the
decisions must be made by human beings, and they can be biased, influenced,
etc.

The judges are in an entirely separate, co-equal branch of government and they
have lifetime appointments. The law empowering the FBI was made by another
entirely separate, co-equal branch of government, whose members' jobs depend
on their constituents votes in every district in the nation.

~~~
zie
99.99% of Judges do not have lifetime appointments. I believe only the US
federal supreme court has lifetime appointments, but it's possible some state
supreme courts have lifetime appointments, but all the ones I've ever seen do
not.

~~~
repiret
Article III section 1 gives a lifetime term to all Article III judges. Article
III courts include the Supreme Court, Federal Appellete Court, and Federal
Circuit court.

------
severine
> Chris Butler, office manager for the archive, suggests that pushing back on
> gag orders is the least recipients should do.

“It’s almost always doable for the people issuing these [law enforcement]
requests to get a court order for nondisclosure if they think that that’s
important,” he says. “And that’s what we require in order to not inform or not
send out notice to users when their information has been requested.”

------
dirkg
NSL's are unconstitutional and should be illegal, sadly nothing is technically
illegal if you are the govt.

The govt should not be allowed to operate in secret and issue gag orders,
because then there is no recourse and no oversight, which is exactly what
happens in practice.

Sadly most people in this country today couldn't care less because fear
mongering and appeal to American nationalism work wonders. No one cares about
human rights, due process or holding people accountable.

Organizations like EFF, IA, Wikipedia/leaks are the target of state sponsored
attacks and media portrays them as evil.

For every time you hear of a case like this, there are thousands probably
where the recipients lack the means to fight the order or are simply forced.
The fact that the FBI withdrew in order not to set precedent proves they
operate illegally, but of course there will be no mainstream coverage or
consequences.

------
drallison
Both EFF and the Internet Archive are worthy of your generous tax-deductible
support. To donate to the Archive:
[https://archive.org/donate/](https://archive.org/donate/). To donate to EFF:
[https://supporters.eff.org/donate/](https://supporters.eff.org/donate/).

~~~
Roarosaur
Archived, will donate when financially able. Thanks for linking

------
imglorp
I'm not sure why they didn't use a regular court issued subpoena if they were
after this one guy instead of messing around with something legally
questionable.

I'm actually encouraged that it was only a request pertaining to one person,
as opposed to say, install some permanent dragnet hardware that violated all
IA users.

~~~
brokenmachine
Laziness.

Why bother with the hassle of explaining yourself and face the possibility of
a negative outcome if you can just say "because terrorism" and bypass all that
effort?

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qwertyuiop924
It's always great to hear about people fighting this sort of thing. In part
because it means people know that they can: the more people are seen fighting,
the more people see that you can, and will fight.

If I had my copy of HPDH near me, I'd be quoting Neville on this.

------
bane
Once again, the IA demonstrates how much a crown jewel they are of not only
the Internet, but to free speech. I can think of few other organizations to
donate to without hesitation and the IA is at the top of that list.

------
koenigdavidmj
We're getting awfully close to "capable of repetition, yet evading review"
territory. I hope there's a court soon that doesn't just let the government
drop the case.

