
EFF Wins Battle Over Secret Legal Opinions on Government Spying - declan
https://www.eff.org/press/releases/eff-wins-battle-over-secret-legal-opinions-government-spying
======
rayiner
This is really wonderful work by the EFF. Legal opinions are not dangerous.
They don't disclose the locations of undercover agents or anything like that.
It's a contempt to the legal profession to keep them secret so that their
reasoning cannot be scrutinized by courts. A lawyer's job is to make the best
possible argument for her client's position, but if the court says she's wrong
--and it's within the court's sole provenance to say what the law is--then she
must acquiesce.

~~~
sitkack
> The U.S. Department of Justice today filed a motion to dismiss its appeal of
> a ruling over legal opinions about Section 215 of the Patriot Act, the
> controversial provision of law relied on by the NSA to collect the call
> records of millions of Americans. As a result of the dismissal, the Justice
> Department will be forced to release a previously undisclosed opinion from
> the Office of Legal Counsel (OLC) concerning access by law enforcement and
> intelligence agencies to census data under Section 215.

By the government backing out, it _doesn't_ set legal precedent for the
release or prevention of secret ruling. They lost a battle to continue the
war.

~~~
nitrogen
Sometimes I wonder if the government should be required to follow all cases
through to a court ruling, so that precedent can be established when
appropriate.

~~~
spacemanmatt
Yes and no; There are already some rules governing case abandonment but we
definitely don't need a government obligated to follow through every fool
action it initiates.

~~~
emhart
If you have the time, could you elaborate on those rules? I know nothing about
that field, but am very curious.

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msabalau
If you found this encouraging, remember that donating to the EFF is a nice way
to show appreciation. You can also set them up to benefit from amazon.smile if
that strikes your fancy.

~~~
hackuser
> donating to the EFF is a nice way to show appreciation

Showing appreciation is a minor detail (sorry to take your wording so
literally; I'm just using it to make a point). This is essential work for
everyone and for our democracy. Donating to and supporting the EFF (or similar
organizations, if you don't happen to agree with the EFF) is a responsibility;
it's doing (part of) your share.

The greatest problem in our (and every) democracy is not those who actively
oppose progress, but the great majority who sit around and do nothing.

(The upside to that is, if you do get off your ass, then you have greatly
disproportionate power over your community and nation. An organized, active
minority can be very powerful -- look at the Tea Party, which I think only 10%
of American support but which, by being very active and by being almost 50% of
GOP primary voters, has great influence over the entire nation.)

~~~
diminoten
I _cannot_ support the EFF as long as they willfully and intentionally
misrepresent basic facts about issues they're involved in.

The EFF's positions on both net neutrality and CISPA have been intentionally
misleading, and until they correct their stance I will _not_ consider it my
"responsibility" to support them.

~~~
inigoesdr
Can you expand on this? What have they been misleading about?

~~~
diminoten
If you read their press release about CISPA, and then read the Wikipedia page,
you'll find a number of direct discrepancies.

For example, the EFF claims that cyber intelligence is user data, when in
reality it's IPs, domains, md5s, general behavior of threat actors. The EFF
intentionally pretends like companies want to give away user information, when
in reality, companies want to enable the US government to protect its
citizens.

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sbt
I've never donated money to a political organization before, but I started an
annual gold membership with the EFF. Initially I was sceptical, because I
don't want to meddle in US politics as a non-US citizen. But these are global
problems and the EFF does have a global agenda. I'm also very impressed with
the work they do, even on smaller things like Privacy Badger. I encourage
everyone concerned with privacy to pick up their bank card and chip in. We
need to make this organization as strong as it can be. Congratulations to the
EFF.

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Quanticles
The ability of the public to challenge the government in court and win on an
issue like this is a large part of why America is so successful - the citizens
are what removes government rot and keeps the system running well.

~~~
thinkling
Oh how I wish I agreed with that. I recognize the huge value of a healthy
justice system, but at the same time (a) there's so much we still cannot get
through this type of legal process (National Security Letters, anyone), and
(b) there's so much systemic rot that cannot be addressed this way (e.g.,
campaign financing) or in any other way that seems tractable to me.

~~~
Normati
It's quite tractable, stop voting for the same two parties that keep causing
the problems over and over again. The trouble is, most of your voting
neighbors don't mind so they perpetuate the problem - there's the downside of
democracy, two wolves and a sheep.

~~~
colordrops
I fully agree that voting for third parties is the way to go, but currently
the public has been propagandized to believe that voting third party is
wasting your vote, or even worse, causing harm.

They are convinced that their vote is wasted by a propaganda video going
around that describes the US system as a "first past the post", in which it is
impossible for third parties to win. They are convinced that third party
voting is harmful as it supposedly causes a spoiler effect.

As long as people are brainwashed against voting third party by these flawed
memes, the problem will remain intractable.

~~~
Eupolemos
I am one of the "brainwashed" people - perhaps you could present some
arguments why you think my belief is wrong?

(I see my belief as simple mathematics)

~~~
CWuestefeld
History - while America has always been governed primarily by two parties,
that set of two has changed a couple of times.

Originally, it was the Whigs and the Democratic Republicans. In the mid-1800s,
the Republicans were a new party, and Lincoln wound up being the first
president from that party.

Interesting to note that the guy who freed the slaves was a Republican, while
it was the Democrats who tried to maintain slavery. During the Civil Rights
movement, the parties got confused about who their core constituencies were,
leading to the major shift leading to the alignment we see today.

While I'm far from confident that it's happening, it's entirely possible that
today's problems like ubiquitous surveillance, brutality of a militarized
police force, etc., together make up enough of a sea change in public opinion
that the Parties are again susceptible to getting lost. Witness flip-flop of
many people in condemning GWB while failing to protest Obama's own similar
actions, or vice-versa.

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Aoyagi
I'm curious, does EFF fight for the global "internet freedom" or just for
American one? I know those two are tied, but they aren't the same.

~~~
msg
[https://www.eff.org/issues/international](https://www.eff.org/issues/international)

Asked and answered. They are for everyone.

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aaron_m04
Winning battles like this doesn't mean much as long as whistleblowers are
thrown in jail and ignored by major US media outlets.

~~~
HCIdivision17
But it means significantly more than nothing. Incremental improvement matters,
and each success paves the next step toward the big important goals. There
isn't a magic switch to just flip this enormous machine on its head. It's a
crude, long, and brutal slog beating back the nonsense and cruft built up
allowing such personal liberty injustices, and this is just another step.

You can't protect whistleblowers if you can't know about them or the reasons
they were thrown in jail. This is a step to getting that information and
working on a legal vaccine. (IANAL, but I am a cautious optimist.)

------
jriordan
Here's why census data is relevant: If you receive an extended survey from the
U.S. census, you are legally required to fill it out with all sorts of
personal data. If you don't return it, a census rep will hound you until you
do.

The "Privacy Policy" for this data is on the U.S. Census website here:

[http://www.census.gov/about/policies/privacy/data_protection...](http://www.census.gov/about/policies/privacy/data_protection.html)

Note the statement that "the statistics we release do not identify individuals
or businesses".

During the last census, it became pretty obvious that this would be an
effective way for the U.S. Government to compel information from people who
were suspected of something. Section 215 of the Patriot Act, after all, gives
the government carte blanche to obtain any "tangible" thing.

IMHO... the interesting questions to ask when this legal opinion is released
are:

1\. Was there ever any accuracy to the U.S. Census "Privacy Policy"? Were the
privacy policies of the U.S. Census misrepresented to the public, and in
particular to those who were required to complete an extended survey?

2\. Does the legal opinion address the "third-party doctrine" when the
information provided is provided under legal _compulsion_ , and in particular
with potential (if commonly unused) penalties for non-cooperation?

A very interesting test case would be for someone to sue the government, in
light of the upcoming 2020 census, to test the constitutionality of the
criminal liability for not completing the extended survey in light of the
government using the information provided for potential law enforcement
purposes. It should be easier than usual to establish standing since anyone
can be forced to complete one of these extended surveys.

~~~
mapt
The federal laws regarding US Census privacy-breaching disclosures are stiff,
being substantial felonies enshrined in statutory law, not just a nonbinding
"policy" or an informally-binding "regulation" or a downright insulting
backroom "interpretation". They may conflict with privileges people assume
under Section 215 of the Patriot Act, but they were not repealed with the
passage of the Patriot Act. They are explicitly and repetitively opposed to
the contents of the Census surveys being used against the respondent in any
law enforcement capacity. In a talk I attended, the ranking US official in
charge of the Census at the time, Rebecca Blank, fielded questions incredulous
of this point. The cost of being able to collect the data credibly is not
being able to use it for any legal purpose in the context of the individual.

Census officials, employees, or associates who cooperate with the NSA on
breaching privacy need to go to prison under these provisions for them to mean
anything; They have always pitted the Census against other agencies that would
like to feast on that data. The laws are not required to protect against
Amazon marketting, they are required to protect against the IRS, FBI, DEA,
ICE, NSA, et al, and ensure that the Constitutional duty to enumerate the
populace cannot be contravened by the respondent's fear of repression. Perhaps
the Patriot Act immunizes the FBI from asking, but if it immunizes the Census
Bureau from answering, we might as well not have a Census Bureau at all.

An intelligence agency that keeps a list of demographic minorities for the
purposes of spying & persecution is Holocaust-precursor-grade stuff, and
something we have fought against for most of our existence since our inception
as a country.

~~~
sounds
I fortunately (or unfortunately) was the target of one of the "extended
survey" forms in the last US Census.

I ignored the mail. A Census worker came to my address and I would not let him
in, multiple times (the first time, he was without any ID).

Fortunately for me, there is a way for the Census worker to complete each
blank on his form with "declines to answer" (he did it by pressing Shift-F11
if that helps you).

Of course, that is at the whim of the Census Bureau, and is not the same as
legal protection against Census surveys. In other words, I ultimately sat down
with the Census worker and we went through the questions outside my address. I
had him press Shift-F11 for each answer, he thanked me for my time, and that
was that.

It helps to be courteous and considerate (I offered him a cold drink). It
probably made the difference in getting him to admit there was a Shift-F11
option.

~~~
gknoy
Out of genuine curiosity, why did you decline to answer? It seems that
accurate census data would be really useful for planning many things.

~~~
logfromblammo
Japanese internment camps. McCarthyism. Blacklisting. Post-9/11 legislation.

I would only be willing to grant a government more power under two conditions.
It is independently verifiable at any time that it is both ethical and
competent. The power could be revoked if it fails to be either ethical or
competent.

Grant of personal information is a non-revocable act. And the current
government structure appears to me to be either competent or ethical, and
sometimes neither, but very rarely both. I often watch videos from independent
blogger-journalists where a person will conduct a lawful request to view
public records while recording, and be subjected to physical force or punitive
arrest as a result.

You want me to disclose my personal information? Stop keeping nasty secrets
about how you really run things. Stop stonewalling freedom of information act
requests. Stop the "parallel construction" nonsense that turns the fruit of
the poisonous tree into jelly and spreads it on justice's breakfast toast.

And perhaps be able to name a single thing I might consider to be good, that
was made possible only through availability of long-form survey information.
For all the supposed potential benefits, I have difficulty actually
identifying any. Wait. Here's one.

Census survey income data were used to identify relatively poor areas for the
Community Reinvestment Act. Fannie Mae was subsequently directed to buy more
loans for mortgaged properties in those areas. So it lowered its standards for
qualifying loans, particularly with respect to documented incomes. A lending
boom resulted, followed by a fraud- and greed-driven bust that wiped out all
the equity I had in my house (which was bought with a 25% cash down payment).
_THANKS, CENSUS._

No, I prefer not to encourage any "help" from the government. Ethics and
competence first, please.

