
EFF Asks Judge to Rule NSA Internet Backbone Spying Techniques Unconstitutional - rosser
https://www.eff.org/press/releases/eff-asks-judge-rule-nsa-internet-backbone-spying-techniques-unconstitutional
======
rustyconover
I think we should all look at the example of Mohammad Ali's appeals to the
Supreme Court regarding charges of dodging the draft. In a documentary about
Ali, I recall the one of the supreme court justice's clerks going back through
the record, and it turned out the Ali's beliefs (being a member of the Nation
of Islam) did qualify him as a conscious objector much like the Seventh Day
Adventists. Before this point the courts has ruled the N.o.I. didn't deserve
the same treatment for its members. Ruling for Ali posed a large problem for
the Supreme Court, if they ruled in a way that set a large precedent that many
people could claim they were objectors the country would have huge problems
feeding the established "war machine" (the draft). So the justices went back
through the record and found a technicality, as such they found a way Ali
wouldn't be found guilty of dodging the draft due to a procedural error. See
[http://en.wikipedia.org/wiki/Clay_v._United_States](http://en.wikipedia.org/wiki/Clay_v._United_States)
for all the details.

I expect if the court comes to review the facts in this matter they will
either be impeded in succeeding due to national security concerns or find a
way to decide for the plaintiffs in the smallest possible way to not upset the
established order. Very rarely are judicial decisions groundbreaking in
precedent. They are more like the tree trimmers of legislation and executive
privilege, they typically only trim branches not cut down entire trunks as
this ruling would possibly do for Internet surveillance.

So this the world we live in, encrypt your life.

~~~
dan_bk
> encrypt your life

Absolutely. The problem is: communication is a "network good", you don't do it
alone. How do you want the "Facebook people" to understand the gravity of the
situation? We all do communicate with Facebook people.

~~~
DanBC
I genuinely do not understand conversations where people talk about the evils
of mass government surveillance and then accept the evils of mass corporate
surveillance.

GCHQ supposedly operates under UK law and needs warrants to search their huge
databases and operates under the oversight of elected representatives. While
that's unacceptable it's more regulated than the chaos of corporate data
misuse.

~~~
growse
Because mass surveillance by a group that can use violence and deprivation of
liberty to enforce its will is a lot scarier than mass surveillance by a group
who can't.

Its not that people accept one and not the other, its that one is much more
serious, and is impossible to opt out of.

~~~
walshemj
Companies have done all of this in the past read up about the pinkertons and
the blacklists run by companies in the USA and elsewhere.

~~~
TeMPOraL
But then again Facebook won't send men in blue full body armour and automatic
weapons after you. Agreed that government can get to the corporate data
through few hoops, but it _feels safer_ to share with a corporation than with
organizations allowed to inflict violence on people.

~~~
themartorana
Nailed it. That put words to a feeling I was searching for. Government
collection supposes everyone is or will be a criminal, while corporate
collection is less offensive on the surface.

They may want to mine my data to display the appropriate Target ad to me, but
that feels a lot more benign than surveillance purely for the sake of possibly
removing my freedoms.

~~~
sp332
Once Facebook has your info, federal, state, and local governments can get it
just by asking. They're not really separate anymore.

------
suprgeek
One of the points that I hope will be fully put to the sword is the tortured
definition that the NSA & Govt. uses of spying. That argument is phrased
approximately as: We are making limited digital copies of stuff (-possibly all
internet traffic) that is stored in encrypted form and not actually "reading"
it. It is only accessed in a much more limited & narrow context for
investigations using "minimization" techniques that respect the fourth
amendment. So we are not really spying in an unconstitutional manner...

This is almost sure to come up if the case proceeds without being torpedoed by
the national secrets defense..and I hope the EFF absolutely prevails in
crushing this malarkey.

~~~
pdkl95
[https://www.eff.org/files/2014/07/24/backbone-3c-color.jpg](https://www.eff.org/files/2014/07/24/backbone-3c-color.jpg)

Given this graphic in the article, I would guess this the main topic the EFF
is pursuing.

While I can see how the NSA's word games can confuse the issue regarding
_searching_ , what I've never understood is how nobody seems to notice that
those same word games admit to _seizing_ evidence. It's as if everybody forgot
the 4th Amendment said "...unreasonable searches and _seizures_..." or
something.

~~~
suprgeek
Same tortured definition: Copying(but not depriving you of it) without
accessing (reading) is technically not seizing

~~~
swombat
Right, so let's agree to a system when the government will open every letter,
scan the contents, save them to a database, but not read them until after
they've run some analysis and determined that your specific letter is of
interest. That is precisely what they're doing here, except on a much larger
scale than the post office could ever fathom.

It is shocking to compare this to the past. I've just finished reading "Team
of Rivals", a biography of Lincoln, and the amount of deeply sensitive stuff
that these high-level politicians shared in personal letters to their loved
ones and colleagues is astonishing. No politician today would ever put such
stuff in writing - if it got into the wrong hands, it could cause incalculable
damage to their reputations, relationships, etc. Those guys were being
entirely honest in hand-written letters that were delivered days away in
different states by a very rudimentary postal system. They clearly had
complete trust in the sanctity of the privacy of their letters.

This level of trust in the US government (or any, in fact) is pretty much
unthinkable today. We (the people) have lost a lot of valuable ground here.

~~~
AlyssaRowan
I've got bad news for you: that _is_ happening, to some extent, already. It's
part of how they caught Ulbricht.

They find it far more practical to use collected metadata from addresses to
identify postal traffic flows, however, and target their interception based on
that.

------
dm2
I'd argue that the NSA needs to retain limited spying capabilities, but with
very very strict control of how the data is used and stored. Dragnet
surveillance is not acceptable or necessary.

It's the sharing of this information that should be dramatically limited.
Other government agencies (at federal, state, and local levels) need to be
prevented from actively spying on citizens. Corporations also need to be
prevented from spying on citizens, they are just as bad and just as careless
with data.

I'd love some discussion on this topic, please convince me I'm wrong.

Of course there needs to be more regulation on the long-term storage of this
data (1-2 years max seems sufficient) and the sharing of this data (absolutely
no sharing with other agencies unless it's a major threat to national
security) and absolutely no sharing any access of these databases with foreign
governments.

The NSA plays a critical role in keeping the country safe. It's becoming
easier and easier for crazy, misguided, and foreign enemies to harm the nation
and it's citizens, somebody has to protect us.

Other countries are not going to give up their NSA equivalents and eliminating
the NSA would cripple US intelligence. Knowledge is power is especially true
when dealing with the scale that governments deal with. The fact is that the
US is one of the prime targets for terrorism, both independent and foreign
nation sponsored.

~~~
csandreasen
I'm curious as to what the EFF would propose as an alternative that both
allows the NSA to conduct legitimate intelligence operations on the internet
and provide acceptable privacy protections. I look at that diagram attached to
the article with the two giant filters, the first of which says "filtering
aimed at eliminating fully domestic transactions", but they consider it
unconstitutional right from the beginning before it even hits the first
filter. It strikes me as akin to giving someone a task like "implement grep,
but don't read any lines from stdin which don't contain your search term."

~~~
AnthonyMouse
If your goal is to stop engaging in domestic bulk surveillance, it's a pretty
simple first step that you shouldn't be looking at any domestic bulk traffic
that never crosses the national border. You don't have to look at the content
of traffic to determine its geographical location.

~~~
csandreasen
That's perfectly fine, but this case is built on testimony from Mark Klein
concerning Room 641A, which _is_ right on the coastline (it's in San
Francisco). That seems to me to likely be an ideal place to capture
international traffic.

~~~
AnthonyMouse
Well, I would argue the ideal place to capture international traffic would
be... internationally. It's pretty hard to capture traffic between Iran and
Pakistan from a room in California.

But you're just avoiding the issue. The fact that there is an international
peering point in San Francisco is no excuse for them to be capturing traffic
between San Francisco and Houston or New York.

~~~
csandreasen
Yeah, it'd pretty hard to capture traffic between Iran and Pakistan, but not,
say, Russia and Venezuela. The US is a huge hub for traffic transiting the
globe, and the risks associated with setting up a foreign collections facility
don't apply to a domestic facility.

How am I avoiding the issue? I have absolutely no problem with the NSA
intercepting foreign traffic - that's their job. The EFF page shows them
filtering out domestic traffic in their diagram, and Mark Klein's testimony,
on which the EFF is building their Jewel v. NSA case, doesn't actually
demonstrate any interception of US traffic.

~~~
AnthonyMouse
You're avoiding the issue by talking about what Mark Klein revealed and
ignoring what Edward Snowden revealed. The NSA is not capturing _only_ traffic
between Russia and Venezuela or only traffic that crosses a national border.
They are sitting on the links into Google's data centers. Google is a domestic
entity. So either they're sitting on a link and then filtering out 100% of the
traffic (which is preposterous) or they're sitting on a link where 100% of the
traffic goes to and from a domestic entity and _not_ filtering it out.

~~~
csandreasen
What Mark Klein revealed is the backbone for the case - the plaintiffs in
Jewel v. NSA are claiming that they have standing because they are AT&T
customers. Here is their argument[1]:

"First, the government unconstitutionally seizes plaintiffs’ Internet
communications. Technology at plaintiffs’ Internet service provider, AT&T,
automatically creates and delivers to the government a copy of plaintiffs’
online activities, along with those of millions of other innocent
Americans—including email, live chat, reading and interacting with websites,
Internet searching, and social networking.

Second, the government unconstitutionally searches the content of much of the
communications stream it has seized. The government admits that it searches
the content of the online communications that it has seized if it believes
there is some indication that the origin or destination of the communication
is outside the United States."

As I scroll through the statement of facts, I see Mark Klein's testimony, the
PCLOB 702 report and Barton Gellman's article from earlier this month cited.
Klein's testimony is key to this case because that's how the EFF is
establishing that the plaintiffs have standing.

> The NSA is not capturing only traffic between Russia and Venezuela or only
> traffic that crosses a national border.

The EFF itself is saying right in their article and court filing[2] that the
NSA is discarding purely domestic traffic.

> They are sitting on the links into Google's data centers. Google is a
> domestic entity. So either they're sitting on a link and then filtering out
> 100% of the traffic (which is preposterous) or they're sitting on a link
> where 100% of the traffic goes to and from a domestic entity and not
> filtering it out.

There is absolutely no evidence of this. I assume you're making a reference to
the Barton Gellman's MUSCULAR reporting[3], which claimed that the NSA was
making use of GCHQ's tapping of international fiber to scan Google's
unencrypted international communications for their targets.

[1] [https://www.eff.org/document/plaintiffs-jewel-knutzen-and-
wa...](https://www.eff.org/document/plaintiffs-jewel-knutzen-and-waltons-
motion-partial-summary-judgment) (see page 7)

[2] Same as above, page 10

[3] [http://www.washingtonpost.com/blogs/the-
switch/wp/2013/11/04...](http://www.washingtonpost.com/blogs/the-
switch/wp/2013/11/04/how-we-know-the-nsa-had-access-to-internal-google-and-
yahoo-cloud-data/)

------
SoftwareMaven
I can't imagine a scenario where this could be viewed as not infringing, yet
I'm not holding my breath. Even if it were found to be infringing, I have
little hope the NSA would stop dragnet-like behavior.

I keep hoping the water will get shut off to the datacenters across the
valley.

~~~
wdewind
The legal justification is that it is the same as police setting up a road
block and reading license plate numbers as traffic flows by, or in the case of
packet inspection actually doing "drunk driving" stops, which are legal.

Edit: I'm actually wrong here, I looked up the source I originally read this
on and realized I misinterpreted it. It's only one possible answer, not _the_
answer: there is no case law, it hasn't been tested yet.

~~~
ps4fanboy
It is more like taking photos of the contents of everyone's cars and then
using a computer to look for weed.

------
iandanforth
Has standing been granted? That's been a huge stumbling block for these cases
in the past.

~~~
magicalist
Yes it has.

A district court originally ruled that Jewel et al didn't have standing, but
the 9th Circuit disagreed[1], ruling that the allegation was a concrete and
particular injury that was easily traceable to the NSA's actions. This was
also well before Snowden's revelations, which only added (significantly) more
evidence to the EFF's case.

[1]
[http://cdn.ca9.uscourts.gov/datastore/opinions/2011/12/29/10...](http://cdn.ca9.uscourts.gov/datastore/opinions/2011/12/29/10-15616.pdf)

------
cowbell
Also in violation of international laws and treaties signed by the US.

[http://www.vox.com/2014/7/17/5910299/5-ways-obama-may-
have-v...](http://www.vox.com/2014/7/17/5910299/5-ways-obama-may-have-
violated-human-rights-according-to-a-un-report)

