
Judge tosses Wikimedia’s anti-NSA lawsuit because Wikipedia isn’t big enough - Amorymeltzer
http://arstechnica.com/tech-policy/2015/10/judge-tosses-wikimedias-anti-nsa-lawsuit-because-wikipedia-isnt-big-enough/
======
austerity
Government engages in mass surveillance against its citizens and the only one
getting in any trouble whatsoever is the whistleblower who made it publicly
known. Checks and balances at work.

How anyone can say with a straight face that Snowden should've stayed and
challenged the system via the legal channels when even after the whole thing
came to light the "system" shows no sign of remorse much less willingness to
change?

~~~
oddlydrawn
No need for hypotheticals. Just look at how much change Binney was able to
accomplish in the last decade after going through proper channels[1].

1\.
[https://en.wikipedia.org/wiki/William_Binney_%28U.S._intelli...](https://en.wikipedia.org/wiki/William_Binney_%28U.S._intelligence_official%29#Whistleblowing)

------
afarrell
Remember folks, the police can still search your house in violation of the 4th
amendment. The only thing the legal system (EDIT: er, the criminal justice
system) currently does is let your defense attorney keep them from using that
evidence against you. Assuming you have an attorney who is being paid enough
to go to suppression hearings.

[http://lawcomic.net/guide/?p=1588](http://lawcomic.net/guide/?p=1588)

If you don't have charges filed against you, then you don't have an
opportunity to challenge the validity* of the FISA court warrant and
jurisprudence around how warrants are issued makes it into the public record
to be debated by law students, legislators, much less an appeals court or
SCOTUS.

All you can hope to do is file a civil suit under a statute like 42 USC 1983
(see
[https://www.law.cornell.edu/uscode/text/42/1983](https://www.law.cornell.edu/uscode/text/42/1983)
and thank you mikecb) It seems, looking through the civil complaint
([https://www.aclu.org/files/assets/wikimedia_v2c_nsa_-
_compla...](https://www.aclu.org/files/assets/wikimedia_v2c_nsa_-
_complaint.pdf)) that in this case, wikimedia actually only filed for an
injunction to stop collection and pay attorney's fees on the basis of 28 USC
2412.

(*Most warrant requests in general get issued, but that is not because judges
are rubber stamps, rather because prosecutors try to avoid wasting a judge's
time. But I'm not sure we have the info to say that about the FISA court.
Judges are human and an institution without the perspective imposed by public
discourse will only become more and more susceptible to its biases)

~~~
mikecb
Not quite true. 42 USC 1983 provides for a right of action for violation of
constitutional rights including attorney's fees.

------
afarrell
I wonder, if an organization had access to the set of all emails sent through
a link that crossed the U.S. border, how much information that organization
could collect about the children of all federal judges. I also wonder how hard
it is to credibly demonstrate that you can persuade the FBI and local law
enforcement not to investigate a missing person case. I also wonder if an
organization has multiple members are willing to prolong the existence of a
disease such as polio in order to fulfill their duty--would they also be
willing to threaten to kidnap only a single innocent person in order to
protect an asset they believe is critically necessary to keep 300 million
people safe?

If hypothetically there was such an organization, each member would be faced
with something of a prisoners dilemma: Do I defect and go to the media, or do
I stay silent? Given that going to the media means at best that you doubt if
you really did the right thing now that you are in Russia and can no longer
see your home, friends and family and at worst that you end up in solitary
confinement for the rest of your life, I am curious how large such an
organization would have to be before the chance of one member defecting rose
above 5% a year. I also wonder how many people would need access to credible
proof of such a pattern of action.

------
revelation
Handbook to extra-constitutional data collection:

1) Do whatever you want

2) Invoke state secrets or national security when questioned on 1

3) Claim in court that no one has standing

Bonus card, use only once:

4) When a case reaches the supreme court where people notice how you invoked
state secrets purely to stymie jurisdictional challenge, lie to the judges [1]

(As you see in this decision, which relies on the tainted supreme court
decision, you only need the magic card once anyway to establish precedence)

After you've used the magic card in step 4, the question naturally occurs how
to make use of the information collected. Try _parallel construction_ [2]
should whoever you were targeting set foot in a court of justice. The point is
to ensure people don't make it there; a hellfire will ensure in due course, US
citizen or not, that a lot of paperwork is saved.

[1]: [https://theintercept.com/2014/02/26/doj-still-ducking-
scruti...](https://theintercept.com/2014/02/26/doj-still-ducking-scrutiny/)

[2]:
[https://en.wikipedia.org/wiki/Parallel_construction](https://en.wikipedia.org/wiki/Parallel_construction)

~~~
ngoede
The existence of parallel construction is huge problem with the idea that the
only result of gathering evidence illegally is that that evidence is excluded
from legal use.

The police/NSA/whomever can still use that information to inform their
investigations to discover other legal evidence that they could otherwise only
have found by chance. Not to mention the possibility of just leaking
information like this later to discredit or punish a political enemy.

~~~
kevinnk
I thought the "fruit of the poisonous tree" doctrine meant that any evidence
that is found by examining evidence collected illegally still cannot be
presented. The problem with parallel construction is that the police/NSA lie
about the origin of their suspicion and avoid the "poisonous tree". (I should
mention IANAL so please correct me if my understanding is wrong)

------
c3534l
Ruling that wikipedia's traffic is insignificant when it is one of the largest
and most trafficed websites ever is so absurd that it's hard to interpret the
ruling here as anything other than motivated.

~~~
rhino369
It takes sense in context. The court accepted that the NSA has some upstream
capability, but says there is no proof that it happens everywhere. Wikileaks
says it is so large that it almost definitely gets caught up. The judge didn't
accept that argument.

The sum up the holding of the judge, Wikipedia has no evidence to show that
the NSA is actually spying on their data transfers beyond mere speculation.

------
malmaud
Can we get the headline changed? It is not at all accurate - the size of
Wikipedia was a largely insignificant point in the judge's reason, as the
article clearly states.

Maybe we should stop with the conspiracy theories about corrupt judges for a
second and actually consider the legal situation. The judge's job is to rule
based on the law, not to use his own judgment or fight for his idea of social
justice.

For good reasons, you could only pursue a lawsuit against someone if you have
real evidence of wrongdoing - not intuition or "common sense" or anything
else. How would you feel if the RIAA could launch lawsuits against any
teenager with a fast internet connection, based on a statistical argument and
'common sense' that most teens steal music?

~~~
afarrell
You are right of course that having one's complaint not based on statistical
likelihood but on actual evidence of a tort committed is an important
principle. I was hoping someone with more knowledge of that area of law would
jump in to start the substantive discussion of the issue as presented to the
court.

My line of questioning above is based not on any actual evidence that anyone
is actually being intimidated in that manner, but on speculation. It is still
troubling if someone with more insight into game theory or organization theory
cannot jump in with a reason why this sort of perversion of Justice wouldn't
be possible. But that doesn't actually constitute any evidence whatsoever that
it happened.

------
lisper
From the judge's ruling:

"For example, one trillion dollars are of enormous value, whereas one trillion
grains of sand are but a small patch of beach."

Not so small actually. The mass of a grain of sand (which I was able to look
up on Wikipedia, of course) is about 10^-9 kg, so a trillion grains of sand is
about a ton of sand.

I am reminded of John McCarthy's famous quote: he who refuses to do arithmetic
is doomed to talk nonsense.

~~~
astazangasta
You stopped mathing too soon. A ton of sand is a little over a cubic meter. So
a small patch of beach.

~~~
jack9
Where do you get 1 cubic meter? Anyone talking about grains in such a small
area without referencing volumetric differences between grains, is making up
measurements. There are multiple order differences between sand types.

[http://www.sandatlas.org/brain-games-with-sand-
grains/](http://www.sandatlas.org/brain-games-with-sand-grains/)

------
discardorama
I sort-of agree with the judge, that "1 trillion" alone doesn't mean much.
They should have put it in context: Wikipedia accounts of X% of overall
Internet traffic, or that Wikipedia is ranked in the top-10 of all sites on
the Internet, or that Wikipedia serves X% of all users on the Internet.

~~~
Joof
I'm not entirely sure that info (% of traffic) is possible for wikipedia to
obtain accurately.

There are however 3.3 billion people in the world estimated to have internet.
Assuming that 90% of internet traffic is autonomous, each person who has
internet visits wikipedia on average roughly 30 times a year. In reality, it's
estimated that closer to 60% of the traffic is autonomous; which means an
average of 121 visits per year per person with internet.

Now we can't claim with 100% certainty the exact numbers (although I'm sure
some statisticians could find a reasonable range with 99.95 certainty), but
it's still pretty difficult to say that 1 trillion doesn't mean much.

------
lr
Another Republican-appointed federal judge. Remember at voting time, there are
three branches of government, and then ask yourself this: Do I want this
person to be responsible for appointing or approving judges to the federal
bench?

~~~
TazeTSchnitzel
Supposedly this is the Democrats' problem right now: they can get the
presidency, but nothing else.

------
Joof
My favorite part: "plaintiffs conclude that there is a greater than
9.9999999999% chance that the NSA has intercepted at least on of their over 1
trillion communications on the basis of an arbitrary assumption, namely that
there is a 0.00000001% chance that the NSA will intercept any particular
internet communication. Plaintiffs provide no basis for the 0.00000001%
figure, nor do they explain why the figure is presented as a conservative
assumption."

I suppose they didn't technically, but the NSA (in 2011) stated they ~9% of
250 mil internet communications were from upstream (note, 22.5 million). For
the .00000001% number to be true given any number less than 225 quadrillion
connections through US nodes(yes, 225000 times wikipedia's traffic at #7 alexa
ranking) to be made annually. Traffic such as netflix and torrenting (apart
from initial metadata) would be disregarded as meaningless data in any
meaningful system and as such would be redundant in this count. Even including
that data, we can see that HTTP is at least ~10% of downstream data (from
sandvine broadband) and can reasonably say 10000 trillion (10 quadrillion)
total http connections(basing this on wikipedia's 1 trillion connections and
adding some wiggle room, but I'm fairly certain it can be proven that it's
[much] less than this) then we only reach 100 quadrillion total net traffic;
less than half of what we would need for this number to be untrue.

Of course they still can't prove that the NSA isn't just ignoring wikipedia
traffic somehow, so the case would still get thrown out.

------
pbhjpbhj
I realise that judges use the evidence put before them but aren't they
supposed to rely on common knowledge as well. If a plaintiff said "we laced
their food with arsenic" would the judge say, "well the defence haven't shown
me that arsenic is a powerful poison so you can go free"? Surely the judge is
expected to research common knowledge like whether a website is popular or
not?

If I go to a search engine and search "website popularity" I get alexa.com as
first hit, that leads me to
[http://www.alexa.com/siteinfo/wikipedia.org](http://www.alexa.com/siteinfo/wikipedia.org)
which says #7 in the world.

If the judge isn't allowed to do the basic research then presumably they're
supposed to just ask in court "on a point of fact: is a trillion hits a
significant number?".

Another analogy, would the government have to prove that a bird was really on
the endangered species list when bringing a case against an egg-snatcher
rather than rely on the judge being able to research common knowledge.

Whilst I understand the reasons - USA government don't want NSA exposed to
court cases - the reasoning is moronic and makes [or possibly demonstrates
that] the USA courts look completely corrupt.

Is there a process to follow this up in which this judge can be struck off?

~~~
afarrell
> Is there a process to follow this up

Well, this was an opinion in U.S. District court, which is the first level.
You can appeal dismissals to Appeals court. From there, it's on to the Supreme
Court who can choose if they want to hear the case.

In Thank You for Smoking, the protagonist jokes that the thing that makes
America great is "our endless appeals system" occasionally, I feel convinced
that this really is true.

~~~
pbhjpbhj
I was more considering an employment tribunal for the judge rather than a
standard appeal.

~~~
afarrell
Nope. In the U.S., the constitution stipulates that federal judges, "both of
the supreme and inferior courts, shall hold their offices during good
behaviour"

[https://www.law.cornell.edu/constitution/articleiii](https://www.law.cornell.edu/constitution/articleiii)

"Good behavior" here does not refer to their opinions in rulings. If it did,
that would eliminate the independence of the judiciary.

~~~
pbhjpbhj
So, for example, if all of a judges rulings were turned over on appeal based
on ignorance of common facts nothing would happen unless Congress chose to
impeach them? Or are judicial rulings based on ignorance of common knowledge
not considered problematic in law.

~~~
afarrell
"Problematic" is too vague a term here. Do you mean "impeachable offense", or
"something a group of people think is a problem"?

If literally all or even > 50% of a district court judge's rulings were
reversed on appeal, would they face sanction? I've never heard of this
happening so I don't really know. But I have never heard of there being a
process for it. I am curious what process folks think there should be?

