
Judge dismisses Wikimedia case against NSA over Upstream surveillance - abbe98
https://www.datacenterdynamics.com/news/judge-dismisses-wikimedia-case-against-nsa-over-upstream-surveillance/
======
post_below
From the article: "Judge Ellis said: "For Wikimedia to litigate the standing
issue further, and for defendants to defend adequately in any further
litigation, would require the disclosure of protected state secrets, namely
details about the Upstream surveillance program's operations. For the reasons
that follow, therefore, the standing issue cannot be tried, or otherwise
further litigated, without risking or requiring harmful disclosures of
privileged state secrets, an outcome prohibited under binding Supreme Court
and Fourth Circuit precedent."

This is why whistleblowers are so important. The "state secrets" firewall
means that the public has no ability to police government surveillance.

It's a frustrating situation because intelligence agencies obviously do need
to keep secrets while at the same time they can use this as justification to
keep anything they want secret, even when there is no real national security
concern with revealing the information.

~~~
HenryKissinger
> The "state secrets" firewall means that the public has no ability to police
> government surveillance.

The public can change the composition of the Congress, which has oversight and
lawmaking authorities over domestic intelligence agencies.

~~~
chishaku
Why is this comment being downvoted?

What alternatives are there other than achieving meaningful representation in
government e.g. Congress?

~~~
mindslight
It's being downvoted because it's utterly fallacious. The democratic process
has been captured by mass media and turned into a simulation of choosing
change. Divisive bikesheds are played up to the max, while the fundamental
substantive issues like this are off the discussion table. Any candidate that
dares to break rank and bring them up gets labeled "fringe" and memory-holed
by the maintream media.

The ultimate alternative is going to be voting from the rooftops, when we've
finally become fed up with the results of their corruption.

~~~
lowdose
This but it is not only traditional media gatekeeping. Google pulled the plug
on Tulsi Gabber's ad account without explanation and she is suing Google over
it.

"Google ad set up got them approved everything was ready to rock and roll I
was the most googled candidate of the night as I have been for every debate
that I've participated in the issue was during that first debate you know what
while that peak period was happening our Google ad account was suspended by
Google with no explanation whatsoever."

[https://www.youtube.com/watch?v=w5o-zqII6eQ](https://www.youtube.com/watch?v=w5o-zqII6eQ)

------
javajosh
Being a fan of lightweight activism, I would like Wikimedia to please publish
a list of sensitive articles, so that I can look at them occasionally or,
better yet, write a browser extension that simulates looking through them that
other people can run.

The default state of government is totalitarian dictatorship; democracy is
carved out of that rock every time we the people reserve a right for
ourselves. Clearly the Judiciary has lost the ability to keep the Executive in
check - and no, I don't think we need new laws here. The 4th Amendment is
clearly being violated for every American.

What intelligence is, what warfare is, has changed almost beyond recognition
since the founding. Ubiquitous, computer mediated relationships, to an
intelligence service, are achingly attractive. And yet, such a capability,
which is embedded in the basic marble from which better government is carved,
_should not be used_. I would have thought the 4th Amendment was enough, but
clearly it is not.

(It is with great sadness I admit that since ~40% of Americans cannot
recognize the obvious threat an un-restrained Executive entails, so it seems
unlikely that they would recognize this more subtle threat.)

~~~
khawkins
I'm not a big fan of NSA surveillance, but given that you acknowledge this
case is activism, it's concerning to me that the nonprofit built to sustain
the allegedly unbiased encyclopedia Wikipedia is moving in the direction of
political activism.

Poor stewardship of Wikipedia is a far greater threat to democracy than what
the NSA is doing, in my opinion. Wikipedia is literally writing the history
book of the modern age, and the amount of power their administrators have over
public thought cannot be underestimated enough. Sure, it's largely written by
the "users", but an insulated class of administrators and super users largely
decide which characterizations get to stay and which get removed.

No doubt there are going to be abuses of power at Wikipedia, but activism like
this makes it clear that Wikipedia has a bias, and the mandate is coming from
the top down. Again, I don't think the activism itself is problematic but
precisely who is doing it is the problem.

~~~
Avamander
That "insulated class of administrators" is unfortunately not enough,
Wikipedia is being constantly modified to spread a specific agenda. I've
caught a few occurrences but Wikipedia doesn't really have enough moderators
watching over edits.

------
yellow_lead
I have been thinking about these types of cases lately. It seems like any
proof can be dismissed by three letter agencies with them using their "state
secret" card as evidence to the contrary. i.e We have evidence to the contrary
but you cannot see it. Darn, guess the case can't proceed.

~~~
jacquesm
In cases where the state has evidence that it can not show the case should
proceed as if such evidence does not exist.

~~~
jessaustin
The state has an advantage here. They can use evidence that can't be presented
in court to construct a case in parallel. That is, after enough surveillance,
they'll know when to expect e.g. a conversation that will appear incriminating
when stripped of context. They'll fake an anonymous tip in order to get a real
warrant for surveilling that conversation. If this scheme doesn't work the
first time, they'll repeat until it does work. Now they don't have to admit
they were just snooping on all people everywhere when the defendant first
attracted their attention.

On the other side, when defendants need evidence the government has, as in
this case, they have no way to get that evidence.

~~~
o-__-o
>They'll fake an anonymous tip in order to get a real warrant for surveilling
that conversation.

The reason this works is because of the Good-faith exception[0]. The police
acting on the tip, must investigate first. The investigation can lead to a
finding which gains a search warrant. The executed warrant finds above and
beyond the tip so The state is notified.

[0] - [https://en.wikipedia.org/wiki/Good-
faith_exception](https://en.wikipedia.org/wiki/Good-faith_exception)

------
naringas
Does doing something seriously evil necessarily imply secrecy?

I am thinking it might but I am not exactly sure why I think this.

Ae there examples of evil things (known to be evil at their time) done in a
widely public way?

On the other hand, the converse is not true; this is far more straighforward:
something secret is not necessarily evil

In any case I have decided that I have to be EXTRA SUPER cautious that I am
not complicity engaging in evil behavior whenever someone asks me to keep
something secret.

I don't think that secrecy is quite the same as privacy (not sure as to why),
they are just very similar.

~~~
dx87
I think game/app developers getting children hooked on gambling through
lootboxes is evil, and that's out in the open. Luckily governments are
starting to crack down on it.

~~~
naringas
It's very similiar to running a casino

------
jancsika
Ooh, this is a tough one.

I was initially going to inquire why someone like Binney, Drake, or Snowden
couldn't just testify to the fact that they could retrieve results where the
source data obviously was not (or could not have been) collected through one
of the PRISM partners. But because of Wikipedia's general transparency, the
gov't could just come claim that, say, the IP associated with the edit history
was retrieved at the time of the search or something so it doesn't prove bulk
collection.

I guess you'd have to have a search that returns data clearly not public like
the Wikipedia _viewing_ habits associated with a given selector or set of
selectors. E.g., something that necessitates having stored the bulk data at a
previous point in time.

------
mindfulgeek
Why can’t there be an independent party with top secret clearance do a code
inspection and see if the hypothetical theory holds water? It seems like there
should be a way to testify about it without compromising secrets.

~~~
jethro_tell
The problem is that those get stacked with defense hawks not civil liberty
activists and you're back to square one.

~~~
a1369209993
Pick twelve people uniformly at random from the US population and require them
to be read in to all relevant clearances. This is a solved problem and has
been since at least the 1700s.

------
brokenmachine
This is how democracy dies. In secret.

------
lettergram
Shouldn’t the Supreme Court weigh in on some of this stuff? IMO this is a
constitutional issue of the highest magnitude.

~~~
brokenmachine
Isn't the problem that no evidence can be presented, even to the Supreme
Court, because everything is marked super tip-top maximum secret?

Clapper flat-out lied to congress, he even admitted he did later, and even the
few congress members who knew he was lying could not do anything about it
because the evidence was top secret.

~~~
lettergram
The argument needs to be made about the secrecy level. It’s really odd if the
Supreme Court can’t rule on constitutional issues because “it’s secret”. Then
there is no point in a constitution (which was my point)

------
ptah
Can they not seal the court proceedings instead

------
kick
_Judge Ellis said: "For Wikimedia to litigate the standing issue further, and
for defendants to defend adequately in any further litigation, would require
the disclosure of protected state secrets, namely details about the Upstream
surveillance program's operations. For the reasons that follow, therefore, the
standing issue cannot be tried, or otherwise further litigated, without
risking or requiring harmful disclosures of privileged state secrets, an
outcome prohibited under binding Supreme Court and Fourth Circuit precedent.

"Thus, the case must be dismissed, and judgment must be entered in favor of
defendants."_

Ellis is a traitor in the legal sense of the word, and (though it's been
obvious for a while) the court systems are broken.

Formerly, Ellis has similarly sided with the CIA against Khalid El-Masri, a
man who was "allegedly" tortured by the CIA, despite being fully aware justice
wasn't being dealt. To quote him:

 _" If El-Masri's allegations are true or essentially true, then all fair-
minded people, including those who believe that state secrets must be
protected, that this lawsuit cannot proceed, and that renditions are a
necessary step to take in this war, must also agree that El-Masri has suffered
injuries as a result of our country's mistake and deserves a remedy."_

[https://www.aclu.org/press-releases/day-court-denied-
victim-...](https://www.aclu.org/press-releases/day-court-denied-victim-cia-
kidnapping-and-rendition-khaled-el-masri)

Given that the Judicial Branch can be considered compromised, the Executive
Branch is the one being accused, and the Legislative Branch allowed this to
happen to begin with, _everyone_ should act as if the U.S. government is a
hostile, compromised actor. Don't attack it, but defend yourself.

Avoid allowing proprietary software from touching any of your secrets (ideally
go for software created by foreigners). Keep your communications safe and
encrypted. Standard stuff, but there's more of an incentive to use it, now.

~~~
corndoge
I read that quote as Ellis siding with El-Masri (notwithstanding that he still
ruled invocation of state secrets as valid) - how do you read it?

~~~
auiya
I read it the same way, and I don't see how one would read it any other way?
Removing the qualifiers -

"If El-Masri's allegations are true [..], then all fair-minded people[..],
must also agree that El-Masri has suffered injuries as a result of our
country's mistake and deserves a remedy."

~~~
monocasa
The quote there is just the recognition by him that the CIA committed crimes.
The context of the rest of the decision still finding for the CIA is the half
that you're missing.

------
mdszy
State secrets should not exist.

~~~
JaimeThompson
So should the plans for atomic weapons be available to anyone?

~~~
monocasa
I mean, they are?

[http://alexwellerstein.com/atomic_patents/](http://alexwellerstein.com/atomic_patents/)

Atomic bombs are literally 1940s technology; it's not that hard to figure out
even if the weren't already published.

~~~
JaimeThompson
The technology to make small, compact, high output thermonuclear weapons isn't
out in the open nor is a lot of the technology used to reduce the CEP of ICBM
warheads.

~~~
monocasa
The big thing we're missing for modern weapons is the nature of aerogel
between the primary and secondary stages. You'll still get a nice boom if you
screw that up.

~~~
cwkoss
Ooh neat, I had never heard about this use for aerogel.

Do you have a speculation on the function of aerogel in a warhead? Useful for
its thermal insulation properties?

~~~
monocasa
It's this stuff
[https://en.wikipedia.org/wiki/FOGBANK](https://en.wikipedia.org/wiki/FOGBANK)

Basically we know why we want it (optimally igniting the second stage using
the energy of the first stage), but we don't know exactly what it's made out
of or the process for making it. We know it's gnarly, toxic stuff though.

