
FBI Kept Demanding Email Records Despite DOJ Saying It Needed a Warrant - ryan_j_naughton
https://theintercept.com/2016/06/02/fbi-kept-demanding-email-records-despite-doj-saying-it-needed-a-warrant/
======
themartorana
_" In 2008, the Justice Department’s Office of Legal Counsel concluded that
the FBI was only entitled to get the name, address, length of service, and
toll billing records from companies without a warrant. Opinions issued by the
OLC are generally treated as binding and final within the executive branch."_

 _" The FBI has said it disagrees with that conclusion, and interprets the
opinion differently, according to a 2014 inspector general report. It sees the
question as more of an “impasse” than an actual legal barrier."_

It's madness to me that the FBI can just say "na, we see it differently" and
until the Supreme Court tells them to stop (and even then?) they'll do
whatever they want.

~~~
jklinger410
At what point will the public realize the truth of rogue agencies and
corruption of power in the military and FBI/CIA?

~~~
1121redblackgo
The public realizes the truth. But what can we do as individuals? The best we
can do is, what, teach our children the value of philosophy and a common
humanity and hopefully have them occupy these leadership roles in a capacity
that follows the rule of law and the greater goals?

How do individuals change a system that rewards loyalty, secrecy, and praise
to higher ups who run with the status quo way of thinking? Shit, I even
recognize that if I was put into a middling position at the CIA/FBI/ETC that I
would probably forgo several of my personal moral/political positions to keep
and progress in my job.

Changes can come externally through art and civil demonstrations of our power,
but really, it may be that our best path is the slow one through education,
which is slow, and long, and again, very slow. And very painful.

~~~
PavlovsCat
I think you also have to organize and get money out of and honest people into
politics. Just consider Stav Shaffir, who near the end of this video makes
some very good points about idealists and their aversion to power:

[https://www.youtube.com/watch?v=5eqCprXn_UY](https://www.youtube.com/watch?v=5eqCprXn_UY)

If more people were "more like that", and if more of them would manage the
"quantum leap" into serious politics, that would still be slow and painful,
but at least more than _asking_ for things or _offering_ facts. Don't get me
wrong, that is all very necessary and good, but it's not quite enough IMHO.

~~~
krashnburn200
>organize

If only there were not an agency dedicated to the disruption of organized
opposition.

It's incredibly simple to disrupt emerging organizations in to chaos when you
have access to everyone's metadata. You don't have to assassinate anyone, you
don't even have to discredit all of the important nodes, although that's a
useful tool. Many of the critical nodes won't recognize themselves as such.
Divert them to other interests, personal, professional, philosophical/moral or
legal... And a movement sputters and scatters in to emephera instead of
transitioning in to an effective force for change.

Social judo is vastly more effective than jackboots ever dream of being.

------
bpchaps
This stuff is becoming more and more maddening to hear after my recent FOIA
adventures.

I requested this from Chicago's Mayor's office last week:

 _Please provide to me all communications or records of communication (phone,
email, receipts of phone /email, etc) from those in the mayor's office for the
below companies. Please limit the search to Oct, Nov, Dec of 2014.

Aura - Prestige Club (of verycoolrooms.com)

Kennealy & O Callaghan

Statewide Investigative Services

Azura Investigations_

Their response, which reeks of complete bullshit:

 _In order to run an email search, the Mayor’s Office needs the names or email
accounts that you wish searched. The email system’s tool set cannot identify
the department where an email user works, and therefore, a search cannot be
based on a department. Parameters that would assist the Mayor’s Office in
conducting an email search include: (1) the e-mail address of the account you
wish searched; and (2) the e-mail address of each individual’s mailbox, if you
seek e-mail correspondence to and from two individuals.

Without email addresses, search terms, or a time frame, the Mayor’s Office
would have to retrieve each and every email for every employee from October –
December, 2014, which is both unduly burdensome and costly. After retrieving
these e-mails, each and every e-mail message a Mayor’s Office employee
received or sent would have to be downloaded and reviewed to determine if it
is responsive to your request or is exempt from disclosure. If any exemptions
were to apply, the Mayor’s Office would need to redact such information. The
entire process of retrieval of the emails, finding responsive records,
reviewing for exempt information, and then redacting the materials would be
onerous._

~~~
michael_storm
How do you propose the mayor's office identify senders and recipients from
e.g. that law firm without combing through every message? What if their email
domain has changed? What if someone used their personal email address? If they
left out any records, you could sue them.

The remaining reasons, mainly an inability to filter emails by department,
sound normal. If you're designing a database, can you build an efficient index
for every possible query? No. The mayor's office has not optimized their
records for random people making FOIA requests. Nor should they. I'd rather my
tax dollars go to potholes, rather than axe-grinders.

You'll have better luck with more legwork on your end.

~~~
bpchaps
I'm not asking for a complicated query system, really. An upgraded version of
outlook would probably do the job. Or an email to their IT department who
could do it. That's what I ended up doing last time which ended up turning
into a year and a half battle to prove that the numbers were releasable under
FOIA.

The judge ended up telling them to JFGI [0], since not googling it was costing
the city thousands in court fees. That should address your concerns. It
probably didn't get me every releasable number, but I'm sure as hell not going
to sue and waste another six months. It takes too long to sue, they know it,
and it's a huge factor in why this is all so difficult to do.

Please realize that paving the way for others to obtain this data is a huge
part of the end goal. In some ways, I'm trying to fix the potholes of FOIA.

[0] "Next, DoIT and its counsel conducted online research on each remaining
responsive phone number — in other words,they "googled" each number to
determine whether that number was publically listed, and, if so, to whom it
belonged."

Edit: Cleaned up (a couple times).

------
Aelinsaar
The casual disregard with which the FBI has always treated the law is
disgusting, and unfortunately, the true face of our country.

~~~
xviia
It surely didn't start in the last decade, and it won't stop this decade,
either.

Just look at COINTELPRO in the 1960s:

COINTELPRO (a portmanteau derived from COunter INTELligence PROgram) was a
series of covert, and at times illegal, projects conducted by the United
States Federal Bureau of Investigation (FBI) aimed at surveilling,
infiltrating, discrediting and disrupting domestic political organizations.

~~~
Aelinsaar
Jean Seberg, never forget that name.

------
kordless
The FBI was founded by a man who believed in secretive abuses of power. There
will always be those who believe it is their purpose to protect us from
ourselves. What those in power don't get is that all suffering can't be
eliminated without creating a whole new level of suffering at lower levels of
society as a result. Or do they?

~~~
curiouscats
Not only that the FBI continues honoring his memory with his name on their
building. That they keep up that public honor to his memory is consistent with
their continued behavior.

It is sad we continue to elect people that allow that type of thinking to
direct behavior of such a powerful organization but it is pretty clear we have
elected very few people that are interested in changing the actions they
continue to engage in.

------
ck2
It's always tragic when people expect law enforcement to actually obey the law
themselves.

It's not just an FBI problem, it's anyone in an authoritarian position, from
individuals to entire organizations.

------
JumpCrisscross
Suppose I'm a user whose information was disclosed by Yahoo! under these
illegal requests. Would I have standing against Yahoo!? What about against the
U.S. government?

~~~
tomkinstinch
You generally can't sue the government unless it lets you. Sovereign immunity.

[https://en.wikipedia.org/wiki/Sovereign_immunity#United_Stat...](https://en.wikipedia.org/wiki/Sovereign_immunity#United_States)

~~~
grrowl
or unless you are a multinational corporation.

[1] [https://www.theguardian.com/business/2015/jun/10/obscure-
leg...](https://www.theguardian.com/business/2015/jun/10/obscure-legal-system-
lets-corportations-sue-states-ttip-icsid)

~~~
rgbrenner
No, that's still a case where the government has agreed that you can sue them.
Every government being sued has agreed to investor-state dispute resolution in
one or more treaties that they've signed (to encourage foreign investment).

The ICSID does not hear cases against countries that have not agreed to abide
by its rulings.. so if you invest in a country that has not signed, you're
SOL... they're not going to help you.

[https://en.wikipedia.org/wiki/Investor-
state_dispute_settlem...](https://en.wikipedia.org/wiki/Investor-
state_dispute_settlement)

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

------
venomsnake
What happens if a government agency demand something they don't have the
authority to do, but they get it.

If FBI wants from your isp your name, address and contents of your emails. But
they are entitled only to the first two. Your ISP though complies on all 3
counts. What is the state of the information gathered by the content of your
email since it was surrendered voluntarily by your ISP?

------
yompers888
I'm repeatedly astounded by the FBI's overreach (though I oughtn't at this
point). I'm also always surprised how much people wanna take swings at NSA
when FBI are the ones abusing everything domestically (though certainly NSA
are helping them, and they shouldn't.)

------
robbiemitchell
Just. Get. A. Warrant.

------
beedogs
The FBI is really long past its prime and needs to be done away with.

~~~
yuzi
It would just be replaced with a new shiny organization having a new name,
more freedom to do more harm (given its lack of baggage) and probably end up
employing the same people.

Sadly being on the brink of destruction is likely going to be the only
motivator for real change.

~~~
epoxyhockey
FTFY: _It would just be replaced with a new shiny organization having_ no name

..the kicker being that the organization probably already exists

~~~
gknoy
Oh come on, surely there's no such agency. ;)

~~~
yuzi
Sure there is. I've seen them. They wear back suits, black sunglasses, and
drive big black oil guzzling SUVs that move in tight groups travelling at the
exact same speed. I've also seen their leader too:
[http://bit.ly/1Y5Irgs](http://bit.ly/1Y5Irgs) (whom is shown reading this
thread).

~~~
dang
Please don't post unsubstantive comments here.

~~~
yuzi
Pfft... Reminder to self: sense of humour not allowed on HN unless you're part
of the clique, when then becomes permitted.

~~~
whamlastxmas
Comments for the sake of humor are generally frowned upon on HN. The exact
same topics are usually posted on reddit, where anyone is welcome to meme and
joke all day. HN tries to stick with substantive, interesting commenting. I am
not trying to speak for everyone, this is just what I have viewed.

Jokes will sometimes fly, but it's usually in pretty inactive subjects and
they aren't political like yours.

------
lasermike026
Vote. Raise money. Spread it around.

------
Sacho
_“The FBI asks for so much, because it is banking that some companies won’t
know the law and will disclose more than they have to. … The FBI is preying on
small companies who don’t have the resources to hire national security law
experts,” he argued._

This is something police officers routinely do, to people with vastly less
resources than companies like Yahoo. It is sanctioned because all the "bad
guys" must be caught. Why is it a problem when the FBI does it?

~~~
tremon
Why is this not a problem when the police does it?

~~~
zaroth
The 6th District described the practice of police lying about having DNA, "a
regrettable but frequent practice of law enforcement was not
unconstitutional," citing to People v. Jones (1998) 17 Cal.4th 279, 299 -
which allow police deception as long as it is not unlikely to produce an
untruthful confession.

[http://scocal.stanford.edu/opinion/people-v-
jones-31413](http://scocal.stanford.edu/opinion/people-v-jones-31413)

