
EFF in Court to Argue NSA Collection from Internet Backbone Is Unconstitutional - etr71115
https://www.eff.org/press/releases/eff-court-argue-nsa-data-collection-internet-backbone-unconstitutional
======
iandanforth
"Under the government's legal theory, it can copy virtually all Internet
communications and then search them from top to bottom for specific
"identifiers"—all without a warrant or individualized suspicion—as long as it
does so quickly using only automated processes."

Love it. I hadn't thought of it like that before. Just because your search is
fast doesn't mean it's not a search.

~~~
higherpurpose
Also, just because there isn't a "human" that does the search manually,
doesn't mean the human doesn't _benefit_ from the search (exactly as if he
would if he did the search himself).

And another thing: the 4th Amendment clearly talks about searches and
_seizures_ , so saying "we're only collecting it, but not searching it"
shouldn't work as an excuse either.

EFF should also make a case for how searching into your online Facebook
accounts, Google accounts, chat accounts and so on, is the "searching through
your home without a warrant and fishing for crimes of the 21st century" \- or
something along those lines.

A third party may hold the data _for you_ , but people think of those accounts
as "theirs", and they have _an expectation of privacy_ for them. If you keep
something in a bank deposit box, does the bank own your deposit box and
everything in it? Or is that "yours", and you expect nobody but you to access
that? Right now, the government much prefers to go to these companies and just
ask _them_ for what you have in those accounts, because it's so much easier
for them to do that, than ask _you_. But I feel they are skirting an important
right humans should be having here.

The "physical" protections seem to be so much better than the "digital"
protections in the US law right now. It's time to change that, and make it
clear that digital protections should be _at least_ as strong as the kind of
protections we benefit from in the real world.

For example, it makes no sense for email to be considered under a much lower
standard than real mail. They are both _exactly the same type of
communication_. It's just the medium that's different, but that shouldn't
matter _at all_.

~~~
fluidcruft
> the 4th Amendment clearly talks about searches and _seizures_

Not to nitpick, but how exactly is making a copy of something a seizure?

~~~
mhurron
The full text is:

"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."

A plain English interpretation would seem to make the NSA slurping illegal,
but a legal interpretation could be completely different.

~~~
TylerJay
I think an important point here is that at the time the Bill of Rights was
written, the language you quoted _would_ protect you from having your private
information copied. Because without photographs, video, or digital
information, you had to actually physically "search" or "seize" a document in
order to make a copy of it. There would be no way of copying a document
without first getting access to it which, unless the government had a specific
warrant, would have been prohibited by the 4th amendment.

~~~
mhurron
Therein lies the problem. The government gets to approach the issue from "It's
not explicitly in the Constitution, therefore we can do anything we want,"
when it is doubtful that the spirit of the document intended peoples digital
communications to be handled differently than their physical communication.

------
joshstrange
If you haven't already go to this link (Probably need to be logged into
Amazon):

[https://smile.amazon.com/gp/charity/change.html?ie=UTF8&ref_...](https://smile.amazon.com/gp/charity/change.html?ie=UTF8&ref_=ya_pldn#q=Electronic+Frontier+Foundation+Inc&page=1&ref=smi_se_cycsr_srch_sr&orig=)

And select EFF as your Smile charity. THEN get the browser extension to
automatically redirect you to the Smile link:

Chrome: [https://chrome.google.com/webstore/detail/smile-
always/jgpmh...](https://chrome.google.com/webstore/detail/smile-
always/jgpmhnmjbhgkhpbgelalfpplebgfjmbf?hl=en)

Firefox: [https://addons.mozilla.org/en-
US/firefox/addon/amazonsmilere...](https://addons.mozilla.org/en-
US/firefox/addon/amazonsmileredirector/)

EDIT: I only use the chrome extension, if someone has a better FF extension
just let me know and I'll change the link, that was the first one I found.

~~~
themodelplumber
To give $50 to a charity through Amazon Smile, you'd have to spend $10K. Still
pretty nice of Amazon I guess, but if you'd rather not deal with the extra
Amazon Smile extensions and junk, most people could just do a $5 or $10 to the
EFF and be done.

~~~
TylerJay
I saw something really good on LessWrong the other day. There's a link you can
follow so that 5% (10x more than the 0.5% from Smile) gets donated to charity.
I think it uses the affiliate link system, but I haven't really looked into
it. This LW post explains it:

[http://lesswrong.com/lw/lb4/shop_for_charity_how_to_earn_pro...](http://lesswrong.com/lw/lb4/shop_for_charity_how_to_earn_proven_charities_5/)

It's not the EFF, but if you believe in GiveWell, it's a fantastic way to make
a sizable (and mostly passive) positive impact.

And the best part: It's stackable with Smile. Presumably, EFF could set the
same thing up. (I believe Scott Alexander of SlateStarCodex.com has one set up
to support his site as well, so it can't be that hard or restrictive)

------
Raphmedia
This is it. This is the tipping point. I'm donating money to the EFF.

~~~
diafygi
Great! Be sure to do the recurring donation option. I donate $10 per month
automatically, which is barely noticeable.

~~~
Raphmedia
I wish $10/month was barely noticeable for me! But I've send them $25, which
I'm sure they will put to good use!

~~~
IceyEC
I was going to do 10 recurring but just hit 25 to help those who can't do the
10 :)

~~~
cheez
That was exactly my reasoning for Wikipedia's donation request: "if everyone
reading this donated $3, we'd be done." "OK, well, I'll pay for 10 people
then".

------
0x5f3759df-i
The title seems a little misleading

>Jewel was filed in 2008 on behalf of San Francisco Bay Area resident Carolyn
Jewel and other AT&T customers.

This isn't a new lawsuit, it has just taken forever to even get to this point.
The main focus of this case isn't from the Snowden documents but the Snowden
documents did open up the case to actually go forward without State Secrets
censorship.

------
aragot
The Fourth only protects 330 million out of 7 billion people.

However, if we don't help US citizen for their democracy, we'll have no weight
for ours.

~~~
Taek
Interesting that the "Bill of Rights" wouldn't apply universally. We're all
human.

~~~
pm90
AFAIK the US Constitution is just a contract put forth by the US citizens
limiting the power of the US Govt. By agreeing to obey the constitution, you
become a US citizen and vice-versa. Although the principles apply universally,
they have a legal basis to be enforced (by the US judiciary) only in the US.

~~~
logfromblammo
Technically, it was a contract put forth by some citizens of the several
states in confederation, to create a government with enumerated powers. That
is, it both enabled and limited at the same time.

In a strictly technical sense, the US Army is prohibited from disarming
citizens of Iraq in their own country, for instance. But they might just do it
anyway. Because said foreigners would not be able to petition for relief
anywhere else but in a US federal courts, and there are currently several
barriers to them initiating an action there, which largely do not exist for
citizens in the US, that foreigner is usually unable to exercise those rights
using strictly peaceful means.

In short, it's far easier to form your own militia and kill any agents of the
US that you find in your own country. That seems like bad policy all the way
around. It would be much better if the US just obeyed its own laws anywhere it
goes in the world. It might even be prudent to set up a 12th federal circuit,
with at least one district in each country with which the US has an
extradition treaty, to support cases with jurisdiction established by Article
III, Section 2, Paragraph 1: " _and between a State, or the Citizens thereof,
and foreign States, Citizens or Subjects._ " Such courts would be authorized
by the Constitution, but as far as I am aware, none exist.

If there were a foreign circuit, it is likely that Guantanamo Bay detainees
could file Habeas Corpus motions in it. Foreign banks could fight to restore
their privacy safeguards while still serving US customers. Private military
contractors might face civil suits from the families of people randomly gunned
down in the streets of their own cities. If the US had to obey its own laws
everywhere around the world, it would certainly devolve into pure chaos~

~~~
techsupporter
Interestingly enough, we did (kind of) try this once. There used to be a
United States Court for China in the first half of the 1900s. This court
exercised extraterritorial jurisdiction over U.S. citizens living in China.
Appeals were heard in the 9th Circuit.

What I find most intriguing (or appalling) is that a District Court judge in
the Western District of Washington (State) held in 1942 that a U.S. citizen
who was tried, convicted, and sentenced in the U.S. Court for China was not
entitled to Constitutional rights. Judge Black wrote in Casement v. Squier[0]
that Petitioner Leroy Lomax, then-incarcerated on McNeil Island was "mistaken
in his contention that the Constitution of the United States guaranteed him a
trial thousands of miles beyond the boundaries of the United States." Lomax
said that his confinement was unconstitutional because he had been denied a
trial by jury (one of Americans, versus the bench trial he received).

Judge Black quoted the U.S. Supreme Court decision In re Ross[1], where
Justice Field wrote "[t]he Constitution can have no operation in another
country." Thus, the Petitioner in Casement was denied habeus corpus.

I've not studied law, so I'd like to hope that this was "clarified" or
overturned, though I don't hold much hope.

0 -
[http://www.leagle.com/decision/194234246FSupp296_1271](http://www.leagle.com/decision/194234246FSupp296_1271)

1 -
[https://supreme.justia.com/cases/federal/us/140/453/case.htm...](https://supreme.justia.com/cases/federal/us/140/453/case.html)

~~~
logfromblammo
Actually, the Constitution says

 _The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury;
and such Trial shall be held in the State where the said Crimes shall have
been committed; but when not committed within any State, the Trial shall be at
such Place or Places as the Congress may by Law have directed._

By my plain, non-lawyer reading of the law, Judge Black was either misinformed
or lying about the law. It hardly matters if you are beyond the boundaries of
the US, if the US comes to you to claim jurisdiction over you.

It certainly is appalling. The Constitution must have operation over agents of
the federation wherever they may go, even if not over citizens or other
people, otherwise you end up with malicious workarounds like extraordinary
rendition and Guantanamo Bay prison.

And while Oliver Twist is non legal canon, when the law is an ass, we should
feel free to say so. The argument from In re Ross seemed very disingenuous, in
that it claimed that a court established in a foreign country using the
Constitution as the basis for its jurisdiction was then no longer bound by it
thereafter. It is obvious to me, as a layman, that both Black and Field were
seeking expedience rather than justice. I imagine that anyone seeking to
overturn the precedent set by the Field opinion could simply petition as an
expatriate filing income taxes, and claim it as sole argument against the 16th
Amendment having operation in another country.

------
spacefight
This is exactly what we need: worldwide and on a large scale. Bundled with
media support, grass roots call for action campaigns and much more.

Let them know we won't accept the status quo.

------
gamesbrainiac
Donating money to EFF. Finally. I've been waiting so long :)

------
pluma
I'd love for this to actually make a difference, but I doubt it. The NSA has
redefined the language around wiretapping just as the military has redefined
the language around war and the CIA has redefined the language around torture.
I'm sure everything that has happened was legal.

The question is: if all of these crimes are legal and those with the power to
ban them have no interest in doing so, what's left? And how long will it be
until that happens?

------
zimbatm
If I send a copy of a music record by email and the NSA keeps a copy of it,
can they be sued for copyright infringement ?

~~~
AngrySkillzz
I had that idea a while ago. Write a short article, copyright it, and then
email it to a bunch of terrorists to make sure the NSA pick it up. Because we
really have two different paradigms involved here; the big copyright trade
associations claim that the law is broken when you copy something, whereas the
US government claims the law is broken only when/if they inspect the copied
material.

------
dustinfarris
EFF joins the ranks of ACLU in my book. Donated.

------
andy_ppp
Even if the EFF win the NSA will carry on regardless. Our laws have been
diminished to the point where the powerful do not have to obey.

------
Constitutional
The courts do have power in the federal government. If they say that some law
is unlawful, then it is not able to be enforced as a law. The courts have that
power since the constitution gives it to them. I think that you need to look
at constitutional law a little more. The Executive branch does not have more
power then the courts or the Congress. By the constitution.

------
sgt101
What Internet Backbone is that? The one that closed in 1995?

~~~
sp332
[https://en.wikipedia.org/wiki/Internet_backbone](https://en.wikipedia.org/wiki/Internet_backbone)
A decentralized, redundant network among many companies.

~~~
sgt101
Ok, it's in Wikipedia! But, backbone's are normally singular and control a
single organism. I think that the metaphore held fine until 1995, but that
which has come since then does not look, act or smell like a backbone to me...

(see what I did there with the metaphore thing :))

------
csandreasen
I don't think the EFF is going to win this one. It's not because of some
government conspiracy, or the odds being stacked against them or anything like
that, but rather because their argument is flawed. As detailed elsewhere on
the EFF's site[1], the core of their case centers around NSA's Section 702
Upstream collection. They have more recently hinged their argument on the
Privacy and Civil Liberty Oversight Board report on Section 702[2], but the
case predates it going back as far as Mark Klein's Room 641A disclosure. The
identifiers that the EFF talks about are described in the report as follows:

 _As noted above, however, all upstream collection — of which “about”
collection is a subset — is “selector-based, i.e., based on . . . things like
phone numbers or emails.” Just as in PRISM collection, a selector used as a
basis for upstream collection “is not a ‘keyword’ or particular term (e.g.,
‘nuclear’ or ‘bomb’) but must be a specific communications identifier (e.g.,
email address).” In other words, the government’s collection devices are not
searching for references to particular topics or ideas, but only for
references to specific communications selectors used by people who have been
targeted under Section 702._

In other words, the NSA is searching for the communications of specific people
- it's targeted collection. The EFF itself even concedes that they are
filtering out wholly domestic communications[3]. Instead of questioning the
specific procedures for targeting these people, the likelihood that they may
fail and collect an innocent bystander's communications, the procedures
dealing with incidental or accidental collection, etc., they are instead
taking the stance that the filtering itself is illegal because a packet filter
needs to see a packet before determining whether or not it matches the
specific communication. As an analogy, if where to pull up my terminal and
run:

    
    
      $ seq 1 3 | grep -v 2 | grep 3 > out.txt
    

... the government is arguing that the collection is the contents of out.txt
("3") and furthermore, they put an extra measure in place to ensure that the
number 2 (i.e. purely domestic communications) is never collected. The EFF is
arguing that 1, 2 and 3 are all collected because each one exists in grep's
buffer for a millisecond before it is discarded - it doesn't matter that it's
never seen by a human, entered into a database, written to disk or transmitted
elsewhere.

I think I see why the EFF is making that argument: in Clapper v. Amnesty
International it was ruled that the plaintiff didn't have standing because
they couldn't show that their specific communications had been collected.
Jewel v. NSA would likely have the same issue, so to get around it the EFF is
instead arguing that the very fact that the NSA is conducting any sort of
packet filtering itself constitutes a search and seizure, regardless what
safeguards are put in place or whether the filtering is targeted. I think
they're grasping for straws with this one - I'd be really surprised if they
win. If I were in their place, I'd probably FOIA the hell out of the 702
procedures and look for loopholes instead.

[1] [https://www.eff.org/press/releases/eff-asks-judge-rule-
nsa-i...](https://www.eff.org/press/releases/eff-asks-judge-rule-nsa-internet-
backbone-spying-techniques-unconstitutional)

[2]
[http://www.pclob.gov/Library/702-Report-2.pdf](http://www.pclob.gov/Library/702-Report-2.pdf)

[3]
[https://www.eff.org/files/2014/07/24/backbone-3c-color.jpg](https://www.eff.org/files/2014/07/24/backbone-3c-color.jpg)

------
cevaris
What???!!

------
diafygi
FYI, these proceedings are open to the public. I've gone to two of them before
to support the EFF. You just wear a suit and sit in the audience quietly. When
the arguments (which are fascinating, by the way) are over everyone gets up at
the same time and leaves. Hopefully, the judges notice how much public support
is there for the EFF.

If you are in the bay area, I highly encourage you to go (this one is very
near the Oakland 12th St BART). You are watching history in the making.

~~~
rada
How do the judges know that you are supporting the EFF and not the other way
around? Does it have to be a suit or could you wear a t-shirt to indicate
which side you are on?

~~~
mjgoins
In the deeply twisted world of lawyers, anyone not wearing business clothes
isn't a real person.

~~~
happyscrappy
It is not just lawyers. Pick any two people at random and have them choose who
they would trust, Stallman or some guy in a suit.

~~~
drawkbox
True but on the flipside, me personally I trust someone that isn't in a suit
(maybe not as hacker look like Stallman) more than someone in a suit.

I think it is a generational thing, dressing up to me is mostly getting into
your sheep B.S. clothing to make whatever you are doing look better. I have
also been working in the game industry where suits usually mean you aren't a
good fit or it is someone to probably not trust i.e. publisher/salesman.

I think for court you should put on your best, but in most cases I distrust
the suit more than I trust it.

~~~
01Michael10
I am not so sure it's generational as I assume you are on the younger side...
Forty-five here and I don't trust people in suits to much (or really religious
people).

------
cm2187
I am a supporter of the EFF but I don't really see the point of suing the NSA.
If they loose, they will call it something else keep doing it. And the NSA is
only one of the offenders. Don't think foreign gvt aren't doing the same on
their side of the cable. The only solution is systematic encryption. The EFF's
let's encrypt effort is way more constructive in my mind.

~~~
swombat
Both avenues must be pursued. One without the other is useless. Pursuing the
technical-only approach will fail if the use of such technology is made
illegal.

~~~
Morgawr
It doesn't even need to be made illegal, just incorrectly "regulated".

~~~
smtddr
\--Someday in the futre---

SecurityAwareCustomer: _" I've noticed that my VPN and ssh connections have
started to lag & disconnect frequently"_

Comcast: _" We've gotten several reports on this issue. To better serve our
customers we've implemented a software designed to optimize network traffic
routing. To do that, the software must do some deep packet inspection.
Unfortunately, if a traffic is encrypted this software must go through all its
known packet types before determining that it's encrypted. This takes time and
also because the incoming buffer might fill up before it's done determining
the packet is from an encrypted stream, said packets might get dropped
entirely."_

SecurityAwareCustomer: _" So, encrypted traffic's performance is severely
degraded then?"_

Comcast: _" We're sorry for any inconvenience this may cause"_

SecurityAwareCustomer: _" Couldn't you check if it's known encryption first,
then try other packet types?"_

Comcast: _" The software vendor has been made aware of the issue. Due to net-
neutrality laws & regulations, the vendor was assigned to us by the USGov and
they must review any proposed changes to the software. This legal process
could take a long time."_

SecurityAwareCustomer: _" How long?"_

Comcast: _" Thank you for choosing Comcast!"_

-Comcast hangs up phone-

SecurityAwareCustomer: _"............huh"_

------
shawn-butler
>>>>

The court thus faulted them [the ACLU in ACLU v. NSA, 493 F.3d 644, 648] for
“assert[ing] a mere belief” that the NSA eavesdropped on their communications
without warrants. Id. This failure of proof doomed standing. Ultimately Jewel
may face similar procedural, evidentiary and substantive barriers as the
plaintiffs in ACLU, but, at this initial pleading stage, the allegations are
deemed true and are presumed to “embrace the ‘specific facts’ needed to
sustain the complaint.” [0]

>>>

EFF is on a fishing expedition. I am not unsympathetic. But this judicial arm-
twisting and absurd twisting of language / law needs to stop as the road it
opens is not helpful to our democracy. They will never be able to justify
their claims with anything that will pass evidentiary muster.

Supporting the EFF is all fine but generally a waste of time and money for
effecting real change. The only way these programs end is if Congress is full
of people who want this to stop and will ensure that it does.

If an obscure libertarian like Grover Norquist can dominate electoral cycles
with a "Taxpayer Protection Pledge" why can someone not similarly dominate
electoral cycles with a "Privacy Protection Pledge"? Demand every presidential
candidate sign it, etc. Make it a real wedge issue.

I wonder if the answer is that US citizens don't care because they don't
really see how they are harmed? They believe the Govt is protecting them by
doing this?

[0]:
[http://cdn.ca9.uscourts.gov/datastore/opinions/2011/12/29/10...](http://cdn.ca9.uscourts.gov/datastore/opinions/2011/12/29/10-15616.pdf)
[pdf]

~~~
dmix
Oh, people are still making this comment on HN? The whole "the only answer is
politics" thing sort of lost its luster when absolutely nothing happened
politically over _one and a half years_ since Snowden. One could argue the NSA
has only been solidified by the political system.

So good luck with that approach.

~~~
unreal37
It is odd how, with all the "shocking" revelations, nothing has effectively
changed. It's like Snowden did the NSA a favor - exposing their secrets and so
now they can act exactly the same but not in secret. Like a husband caught in
an affair, and the wife doesn't care. Makes the NSA's lives a lot easier not
having to lie about what that locked room is for at AT&T.

------
LLWM
All these comments about donating to the EFF. Any way I can donate money to
the NSA to balance things out a bit?

~~~
joshstrange
It's called taxes, and don't worry, you are already a BIG donor.

~~~
schoen
According to Wikipedia, NSA's share of Federal budget outlays was about 0.28%
in 2013 (although there's a conceptual question whether you can just multiply
your tax bill by 0.0028 to find out your contribution to NSA's budget, because
Federal expenditures are also funded from sources other than personal income
tax).

(Here I kind of wish we had a "facts we wouldn't know without Snowden" mock-
HTML tag.)

~~~
joshstrange
Not to mention the "Black Budgets" that undoubtedly fund the NSA and friends.

