
US Sought Permission to Change Historical Record of a Public Court Proceeding - philfreo
https://www.eff.org/deeplinks/2014/08/unsealed-us-sought-permission-change-historical-record-public-court-proceeding
======
revelation
The transcript is a good read, too. The EFF explains how the NSA grabs data
wholesale from fiber optic cables (step 1) and then filters it according to
selectors (step 2). This is the governments rebuke:

> IN FACT, THE SUPREME COURT DELINEATED PRECISELY HOW

> THE PROGRAM OPERATES. AND IT IS A TARGETED PROGRAM. IT IS A

> PROGRAM THAT IS TARGETED AT SPECIFIC SELECTORS, THAT IS PHONE

> NUMBERS OR EMAIL ACCOUNTS.

This person doesn't have an understanding of how _selectors_ work. He doesn't
realize that you can't decide if something is a phone number or an email
account until you have already taken a look at it. This is the level on which
they argue. They trick people into thinking that you can put a bunch of
selectors in one bag and have only matching communications magically appear in
a second one, circumventing the obvious constutional issue of collecting
everything. But gravity is still in effect, so anyone with a basic
understanding realizes that you can't get to (2) without having taken step
(1).

> IT IS NOT BULK META DATA COLLECTION.

> IT'S A TARGETED COMMUNICATION SURVEILLANCE PROGRAM

> AGAINST NON U.S. PERSONS LOCATED OUTSIDE THE UNITED STATES.

You're not sure if he is just ignorant or feigning ignorance. And the problem
is that _it might just work_. It brings back memories to the Java APIs case
where the career lawyer argued a trivial three line Java code Google copied
verbatim constituted copyright infringement. He didn't know, of course, what
he was talking about. There was no mental framework for him to realize the
sheer stupidity on display.

~~~
rtpg
I really don't think the "pre-filter collection" question can be as non-
ambiguously answered as you claim.

If the gov't had a guy at the post office collecting specific people's mail,
would the fact that he's looking at the address on all the mail be considered
a search?

Even if on a technical level at one point all traffic is on RAM on some
machine of the NSA, if they're not actually keeping it or looking at it in any
real sense (beyond specific meta-data stuff that isn't stored), then I find it
hard to consider that equivalent to actually storing the trafic.

The argument that they _could_ easily switch it to do wholesale collection is
pretty irrelevant in the courts.

~~~
bandushrew
THere were a lot of 'if' statements in your post :) The problem is:

(1) We do not know what the NSA is doing (2) We cannot trust what they say
they are doing, because they are perfectly willing to lie about it.

~~~
rtpg
This is moving the goalpost. The question laid in front of the courts is "Is
the system being described legal or constitutional?", not "is this what
they're actually doing."

This is where Congress is supposed to kick in (and Congress does spend a lot
of time creating legislation when the judicial system doesn't have the tools
to do what's "right"), either through FOIA-style legislation or legislating a
restructuring of the NSA or whatever.

And this sort of "well we can't trust the gov't to follow any of the rules
anyways" discussion is pointless, counterproductive, and false. Courts have
countlessly told the "government" (which is really just the executive) to do
things it didn't want to do. The system is working, and this is part of the
process.

~~~
talmand
I'm sorry, I need further description of what you mean by the moving goalposts
analogy. It would seem to me the "is this what they're actually doing?" part
is directly relevant to the "is the system being described legal or
constitutional?" part. I can describe a process of removing money from the
bank that looks legal because I say I'm withdrawing my own funds, but turns
out to be totally illegal because what I'm really doing is robbing the bank.

It is true that in some cases the courts do, in fact, tell the government they
can or cannot do this or that. But I think the problem being referred to is
when the "government" does things within a veil of secrecy so that the courts
aren't even aware of the problem. Never mind the fact that the government
creates a "court" to validate their procedures that itself is kept secret as
part of the overall secrecy. In those cases I wouldn't say the discussion is
pointless, counterproductive, and false.

------
philfreo
> The transcript of a court proceeding is the historical record of that event,
> what will exist and inform the public long after the persons involved are
> gone. The government's attempt to change this history was unprecedented. We
> could find no example of where a court had granted such a remedy or even
> where such a request had been made. This was another example of the
> government's attempt to shroud in secrecy both its own actions, as well as
> the challenges to those actions.

Reminder to donate to the EFF:
[https://supporters.eff.org/donate](https://supporters.eff.org/donate)

~~~
CWuestefeld
_The government 's attempt to change this history was unprecedented. We could
find no example of where a court had granted such a remedy_

Of course, the very nature of such a change renders it undiscoverable. Who
knows how many records have been changed and records of that change been
expunged.

~~~
indrax
The fact that they said this, without pointing out that it was unknowable,
makes me wonder if they know of another request that they can't talk about.

------
javajosh
Awesome job, EFF. You are doing important work.

Curious: we have laws against "attempted murder", are there any laws against
"attempted illegal redaction of court proceedings" that can be applied here?
My concern is that there is no deterrent to this being attempted again,
perhaps in a context that is less visible, and less ably defended, than in
this case.

~~~
mjn
In general no, parties have pretty wide latitude to file motions. If the law
doesn't permit the request, the remedy is just that the court rejects it.
That's the basis of the adversarial system; parties are expected to try to
make any argument in their favor they can possibly come up with, and the
court's job (or jury's job) is to weigh them. So it's disfavored to punish
someone who makes a losing argument beyond just the fact that they lose the
argument. In rare cases an attorney can be sanctioned for lawyering way out of
line ("Rule 11 sanctions"), but that usually requires a pattern of over-the-
top behavior, ignoring the court's instructions, repeated frivolous arguments,
etc.

~~~
couchand
Minor clarification: the role of a jury is not to rule on the merit of a
motion such as this, but rather to decide the facts of a case. The presiding
judge is responsible for deciding the law.

~~~
tga_d
_" the role of a jury is not to rule on the merit of a motion such as this,
but rather to decide the facts of a case"_

I don't think that's correct.

[https://en.wikipedia.org/wiki/Jury_nullification](https://en.wikipedia.org/wiki/Jury_nullification)

~~~
dragonwriter
Jury nullification has nothing to do with ruling directly on the merits of a
motion of the type at issue here. It might involve _indirectly_ considering
the merits of a loosely-simialr motion in the course of rendering a criminal
verdict, but even that wouldn't apply to this specific motion in its context,
since that was not a criminal case.

------
RexRollman
What kills me is that this is all happening under the leadership of a
president who once taught constitutional law. If someone with his background
won't stop this kind of thing from happening, who will?

~~~
mcantelon
If Obama was inclined to stop this sort of thing he wouldn't have ended up a
presidential candidate in the first place.

~~~
robrenaud
I voted for him in part because he seemed to be in strong opposition to
policies like these. It seems like a total 180 from the positions he was
espousing in the campaign before the 2008 election.

[http://www.youtube.com/watch?v=B6fnfVJzZT4](http://www.youtube.com/watch?v=B6fnfVJzZT4)
[http://www.cnet.com/news/obama-no-warrantless-wiretaps-if-
yo...](http://www.cnet.com/news/obama-no-warrantless-wiretaps-if-you-elect-
me/)

~~~
revscat
It makes you wonder what exactly was said or done, doesn't it.

------
mjn
Tangential question: reading the transcript, I'm surprised that two of the
three parties' lawyers are attending the court session via speakerphone. Is
that common?

~~~
couchand
Yes, it is fairly common. Keep in mind that this was a hearing on an emergency
motion, so it was probably scheduled fairly quickly. There is significant
variation in the scale of legal proceedings: full-blown trials pretty much
require the physical presence of counsel, but early stage hearings are
frequently conducted by phone.

------
natch
Thanks EFF for fighting this.

>The government's attempt to change this history was unprecedented.

How does the EFF know this was unprecedented? If there had been a precedent,
wouldn't it be hidden?

I would expect the EFF to avoid statements that seem naive, even while I
appreciate what they do.

~~~
greghatch
If it's hidden, then its assumed to be unprecedented until evidence presents
otherwise. There aren't going to be forward assumptions of precedents without
evidence.

------
jonah
We need a service like this[1] to track the changes from all courts, not just
the SCOTUS[2].

[1] [http://www.dailydot.com/news/twitter-tracks-supreme-court-
ch...](http://www.dailydot.com/news/twitter-tracks-supreme-court-changes/)

[2] [http://www.nytimes.com/2014/05/25/us/final-word-on-us-law-
is...](http://www.nytimes.com/2014/05/25/us/final-word-on-us-law-isnt-supreme-
court-keeps-editing.html)

~~~
belovedeagle
That wouldn't help in this instance: you can't track changes in a document you
don't have. The court documents were not released to the public until after
all of this happened; that was the point.

------
esbranson
> _We could find no example of where a court had_

Given the exorbitant fees the PACER system charges, I doubt anyone, even the
EFF, could afford to find such a case out of all the federal court cases.

~~~
fragsworth
Well, given the nature of the thing requested, it is actually impossible to
find historic examples of it until now (when the request was denied)

------
factchecka
Loving the url for Shubert v. Obama: [https://www.eff.org/cases/shubert-v-
bush](https://www.eff.org/cases/shubert-v-bush)

~~~
Kesseki
That's because it was originally filed when Bush was in office. When you sue a
government official in his or her official capacity, the caption (sometimes,
but especially on appeal) gets updated when the office changes hands.

------
gohrt
"US Sought Permission" ? That's an odd phrasing. Who did the US ask?

~~~
chobo
The US is a party in court asking the judge.

------
shmerl
Police state mentality in action.

------
dreamweapon
_Everything faded into mist. The past was erased, the erasure was forgotten,
the lie became truth._

\-- George Orwell, _1984_ , Part 1, Chapter 7

~~~
seanflyon
Those who control the present, control the past and those who control the past
control the future.

~~~
angersock
It's great to see the government finally adopting more practices from recent
work in software development.

You know, like git rebase and amending history.

~~~
JoshTriplett
If this were done using git rebase, anyone with their own copy of the
repository would quickly notice the change and have a full record of the old
and new versions.

~~~
arethuza
From a political perspective then your local repo is wrong, always was wrong
and owning it an act of subversion ;-)

