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A Decade-Old Gag Order, Lifted (aclu.org)
737 points by mmastrac on Nov 30, 2015 | hide | past | web | favorite | 146 comments

This is reporting that Nick Merrill, who was under a gag order restricting his ability to talk about a subpoena he received in 2004, is no longer gagged. It links to an editorial he wrote (anonymously) about that gag order, http://www.washingtonpost.com/wp-dyn/content/article/2007/03... , in which he writes:

> "Based on the context of the demand -- a context that the FBI still won't let me discuss publicly -- I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled."

This new article does not disclose who that subscriber was, but the article, and the earlier op-ed, seem to imply that the subscriber's identity alone is enough to suspect an abuse of power. We'll probably hear more about that in the near future, but I'd like to make a prediction. The most likely interpretation is that this was a critic of the FBI or of the US government as a whole, and that the subpoena - which seeks to unmask the subject's identity - would be a prelude to retaliation.

The article goes on to describe how the FBI has materially misrepresented its use of National Security Letters to Congress, and that the practice of sending them has twice been struck down by the courts as unconstitutional. By all appearances, a significant chunk of the US law enforcement apparatus has simply gone rogue, stopped respecting Congress and the courts and is instead focused on increasing its own power.

> By all appearances, a significant chunk of the US law enforcement apparatus has simply gone rogue, stopped respecting Congress and the courts and is instead focused on increasing its own power.

I truly don't understand why nothing is done about that. Why doesn't anyone lose their job over this, let alone go to jail? I mean, I've gotten used to such indifference in Russia, but US seemed like the country that shouldn't tolerate shit like this.

> I truly don't understand why nothing is done about that. Why doesn't anyone lose their job over this, let alone go to jail?

My suspicion is that the FBI and various three-letter-agencies have dirt on most of the elected representatives. The mass surveillance apparatus is the perfect tool for collecting blackmail material on current and future leaders.

That is certainly the most amusing and dramatic explanation of what's happening.

A simpler explanation might just be that Congress broadly supports what DOJ is doing, and cares a lot less about the integrity of specific online services than they do about DOJ's role in combating terrorism, nuclear proliferation, and foreign intelligence services.

The FBI's founding director had this very tactic as his modus operandi. It isn't hard to speculate that the culture of the FBI has supported political extortion for well over 80 years now.

That's true. J Edgar Hoover did do this. Of course, Hoover is also one of the great villains of US history, and there was a major course-correction in the 1970s regarding the legal process federal law enforcement has to adhere to.

"The FBI is run by the modern equivalent of J. Edgar Hoover" is also an amusing and dramatic interpretation of the facts we have now. But they don't square well with other facts we know, such as Ashcroft's hospital-bed refusal to reauthorize STELLARWIND. And that was John Ashcroft, who is not exactly a cuddly Sesame Street muppet on these issues.

In case I need to make this clear:

I don't think sacrificing the integrity of online services for DOJ goals is a good tradeoff. The wins seem very marginal, and the long-term costs are huge. But I'm a technologist with a security/privacy concentration, and Congress is composed mostly of lawyers.

Hoover had plenty of apologists who were arguing that he was using these tactics only for good causes (such as against communism, today it would be terrorism or child pornography), it took a long time before anybody dared to speak out against this, he was simply too powerful.

Most likely today such direct blackmail of (domestic) politicians and other officials is not the case but you can't really rule it out completely.

The bad thing is that the reputation of the FBI and other such agencies is now such that an analogy with the Hoover days can no longer be rejected out of hand 'because they'd never do such a thing'.

They did in the past, for many years with many people, we know that for sure, and they quite possibly still do, see the thread linked here, after all what use could a decade old gag order have and do you actually believe that 100's of thousands of gag orders and NSLs can actually have a legitimate foundation?

That's to me beyond belief, that there are 100's of thousands of instances where the authorities issue permanent gag orders with respect to information gathering on individuals and that this is all somehow both legal and proportional use of powers vested in these agencies.

> The bad thing is that the reputation of the FBI and other such agencies is now such that an analogy with the Hoover days can no longer be rejected out of hand 'because they'd never do such a thing'.

Not only that but when someone's life is as public as a politician - and their career dependent on that credibility - it takes far less than Hoover-era style blackmail to ruin such a person.

So even if the FBI is no longer acting like the Hoover era agents there are significant careers risks in standing up to the three-letter agencies, (and their similarily-powerful network of friends and former employees). Those risks have only grown as the power of the NSA/FBI have grown with the spread of technology/internet.

The bar for making such a claim is much lower than in the 1950s, especially in the context of a politician.

You're giving the FBI a whole lot of credit for their ability to orchestrate what would be one of the great conspiracies of the last 100 years: despite the fractious nature of modern politics, with politicians charging through revolving doors of office and then lobbying jobs all the while accusing the sitting President of being a traitor or even a foreign agent, not one of these attempts at blackmail has ever been brought to light, or even alleged, by any member of Congress on either side of the aisle.

There might be plenty of reasons why we don't know of such instances.

For example, those being blackmailed might not know or have any proof that it's FBI who's blackmailing them. The FBI of course has endless opportunities of plausible deniability, starting with "rogue contractor".

It all boils down to incentives: what exactly do you have to win from disclosing? What is the chance that people will believe you given that you have no evidence? And what would you even expect your audience to do about it? And how does that scenario compare to the worst that your blackmailer is willing to do?

It would be fairly easy for someone with the power of the FBI to rig the subject's incentives heavily in their favor, and to only pursue blackmail on subjects where they are fairly certain of success. At some point of proficiency a casual observer might not be able to distinguish it from lobbying!

We don't know if these things happen or not, but they're entirely possible. Stranger things have been leaked and declassified over the years.

It's difficult for the FBI to use mass surveillance techniques to blackmail anybody. Sure they can make allegations, even true ones, but if they present evidence it would be pretty clear where it came from. Only so many entities have the ability to gather the kind of data necessary to separate fact from rumor.

In terms of incentives, blackmail is generally a lower tier crime in terms of likelihood of success. Think about if someone tried to blackmail you. There's a good chance you'd think "Sure I can give in to their demands now, but they'll just ask for something else later and they never have to stop asking". Unless the crime being covered up involves significant jail time, most people would rather face the consequences than live the rest of their lives under someone else's control. Many former politicians have successful careers even after mundane scandals (Weiner and Spitzer come to mind).

And depending on the nature of the secret, most politicians would get some slack from the public for having the courage to standup to FBI blackmail. They might even be able to spin themselves as a flawed hero. In fact, having a three letter agency try to blackmail you right now is kind of a get out of jail free card.

As tptacek said, this is really fascinating fiction but it's just wildly impractical in real life. Blackmail is messy and has a lot of moving parts that are difficult to control. The FBI is better off doing exactly what they do now: asking Congress for money and getting it.

Parallel construction should work for blackmail just as well as it does in the courts I think to obscure the true source of information. And people don't do bad things alone, there are always other people involved who could simultaneously be plausibly claimed as source and plausibly deny this. A "stolen hard drive" could explain anything.

Any crimes that the politicians are involved with probably do carry significant jail times, given how corruption and pedophilia apparently still exist.

> depending on the nature of the secret, most politicians would get some slack from the public for having the courage to standup to FBI blackmail

I don't really see this playing out in the politician's favor.

Politician: FBI is blackmailing me! Press: with what? Politician: ... Press: do you have any proof it's FBI? Politician: Nope FBI: We're not doing anything FBI: (anonymously releasing some info) Politician: resigns / get jailed Press: boo bad politician!


Politician: FBI is blackmailing me! Press: with what? Politician: They say I stole a billion dollars FBI: we're not doing anything, but we should investigate this FBI: wow this guy really did steal a billion dollars, we can't ignore this Press: politician announces he stole $1 billion dollars, gets jailed

I don't get one thing: if politicians' decisions can be purchased by campaign donations and lobbying, why would they be any more resistant to something more persuasive? Again, to reiterate, blackmail does not need to be letters with threats compiled from newspaper cutouts. There's a whole range of methods they could be using that rely on the information they collect.

Suppose the blackmail is against not the politician, but someone they care about more than themselves? Suppose it's not blackmail per se, but the use of the same information for more sinister threats. Does the risk of giving the FBI/others all of everyone's private data still seem acceptable?

I'm not taking a concrete position on the question, but given the secrets that plain ordinary people keep, I would not be surprised if the data available on people is used for coercion and nobody talks about it.

It boggles my mind that post-Snowden people still think it's not possible for people to keep quiet about such things, I mean even Apple is able to maintain an enormous amount of privacy of things going on behind closed doors, the idea that one single person being blackmailed and not saying anything about it is difficult to believe.....I dunno.

What did Snowden change about any of this? The programs Snowden revealed were so well-known --- many of them having been reported in the press prior to Snowden's leaks --- that you can find them alluded to in the first edition of Applied Cryptography, back in the 1990s.

Were you surprised by the Snowden leaks? Even after AT&T and Room 641a?

I think the change was that after the leaks the existence of the programs was incontrovertible - while many with an interest in the topic would have asserted their existence, they could not be discussed in a meaningful way in large-circulation media because dismissing assertions of their existence as 'amusing and dramatic" or "conspiracy theorizing" was always going to be the safer editorial position. After Snowden, that isn't really possible without looking a little foolish.

For a variety of interesting reasons I wasn't surprised, but there were moments where I could see how other people could be surprised by it. I spend a lot of time thinking about this stuff, so I saw it coming. The average Joe, well, maybe they didn't.


Some smoke, but no fire.

"President Obama’s recently convened executive review of the NSA admitted: “In light of the lessons of our own history… at some point in the future, high-level government officials will decide that this massive database of extraordinarily sensitive private information is there for the plucking.”"



Sibel Edmonds alleges that the FBI collected information about the lesbian affair of a Democratic Congresswoman. That is a bombshell accusation, one I'd hazard would be more newsworthy to most people in the US than the Snowden disclosures.

Why can I only find references to that allegation on sites like LewRockwell.com, and not on WaPo or the NYT?

I have absolutely no clue. But that's a weird one, especially since it never resulted in any kind of fall-out either way. You'd take that those accusations would not be left to stand without a solid rebuttal.

...unless they were very obviously made up and the person making them of little public importance, in which case it would probably be more damaging to even acknowledge them as being worth discussion.

That was testimony under oath. If it was false testimony the penalties would be grave which somewhat reduces the chances of it being 'obviously made up'.

Of note, her allegation regarding blackmailing a congresswoman was against Turkish agents whom the FBI was wiretapping, not the FBI themselves. In her deposition she specifically says

> [...] information was being collected for blackmail purposes, and her lesbian relationship, and they, the Turkish entities, wanted both congressional related favoritism from her, but also her husband was in a high position in the area in the state she was elected from, and these Turkish entities ran certain illegal operations, and they wanted her husband's help. But I don't know if she provided them with those. I left. I was terminated.

The penalties for lying under oath are usually anything but grave. Moreover: to punish her, the state has to prove that she knowingly lied. But I believe she believes what she's saying. That doesn't mean she's right.

Very good question... Daniel Ellsberg wrote about a related story that was front page "London's Sunday Times" [1] and various foreign press. But searching Google for 2008-2010 there is zero mainstream American news coverage of that story or the 2009 deposition. Yet they covered her earlier whistleblowing heavily between 2002-2004.

[1] http://www.huffingtonpost.com/daniel-ellsberg/covering-up-th...

Edit: upon further reading it appears to not be an allegation against the FBI but rather Turkish agents which makes this much less news-worthy:

> Turkish agents started gathering information on her, and they found out that she was bisexual. So a Turkish agent struck up a relationship with her. [ ... ] I don’t know if Congresswoman Schakowsky ever was actually blackmailed or did anything for the Turkish woman. http://www.bradblog.com/?p=7429

But they don't square well with other facts we know, such as Ashcroft's hospital-bed refusal to reauthorize STELLARWIND.

More info:

In March 2004, the Justice Department under Ashcroft ruled that the Stellar Wind domestic intelligence program was illegal. The day after the ruling, Ashcroft became critically ill with acute pancreatitis. President Bush sent his White House Counsel Alberto Gonzales and Chief of Staff Andrew Card Jr. to Ashcroft's hospital bed. They wanted him to sign a document reversing the Justice Department's ruling. But the semi-conscious Ashcroft refused to sign; Acting Attorney General James Comey and Jack Goldsmith, head of the Office of Legal Counsel for DOJ, were there to back him up.


Original Source: http://www.pbs.org/moyers/journal/09072007/transcript2.html

This story is also featured in Barton Gellman's _Angler_, which is a great book, and if you're following the Snowden drama Gellman's name should be familiar.

Such a villian, in fact, that a huge building in DC bears his name in order to honor him. The building that houses the very organization we are discussing in fact. Whose employees walk past his plaque and honorifics every day, witnessing a great work done by their colleagues for the sole purpose of giving him his due respect.

I think things are certainly not as bad as when the FBI was literally commanded (founded, really) by a criminal and a traitor (the Ashcroft event was quite encouraging) but I'm not so sure many people in LE consider him so evil and much of his culture lives on.

Though I agree with you it seems like quite a stretch to blame blackmail for any of this. More likely well-meaning people making short-sighted decisions, as it always is.

There are also statues of Jefferson Davis in the south, and buildings at our greatest universities named after John C. Calhoun. That doesn't mean we endorse those people.

Umm, it kind of does.

As someone who lives in the south, it's nice to see things such as the confederate flags _finally_ getting removed.

A large statue of Nathan Bedford Forrest, master military tactician and a founder of the KKK, stands tall over I-65 nearby. It probably would be removed if it was not privately-owned.

HN readers in particular should consider how technology has affected an important part of J. Edgar Hoover's political extortion: COINTELPRO[1].

Technology has made it a lot easier to discredit and disrupt political activists. An obvious example of how to map relationships to find potential organizers that might bring together a larger political movement is the NSA programs COTRAVELER[2], but the methods are not that different from "targeted advertising" or any Facebook-style social network.

Occupy terrified a lot of people in power specifically because it didn't have an obvious minimum spanning tree to target.

We even have documents from Snowden about GCHQ's version[3]. JTRIG even has a wide assortment of tools[4] available for disrupting and discrediting their targets. Their tool for "amplification of a given message, normally video, on popular multimedia websites (Youtube)" doesn't seem particularly useful for national defense or catching terrorists - they have other tools for feeding a specific target false information. On the other hand, amplifying the popularity of a video would be very useful for propaganda.

Obviously very little of this is proof. It was already frightening what J. Edgar Hoover was able to do decades ago. How would the same thing be done with the benefit of modern technology? Would you even notice it?[5]

A even better question might be: given how eagerly the advertising industry used tracking technology and data mining, would you consider it likely that a government agency with little restraint or oversight would refrain from doing the same thing?

[1] https://en.wikipedia.org/wiki/COINTELPRO

[2] https://www.washingtonpost.com/apps/g/page/world/how-the-nsa...

[3] https://theintercept.com/2014/02/24/jtrig-manipulation/

[4] https://www.schneier.com/gchq-catalog.html

[5] https://www.youtube.com/watch?v=oRzYJullFOs (14 seconds of Max Headroom)

If people in power were terrified of Occupy, recent history has shown that they have had absolutely no reason to be.

Consensus decision making has hamstrung progressive causes since the 70s (http://berkeleyjournal.org/2015/05/the-theology-of-consensus...), predating the technological toolkit which nominally justified not having a targetable leadership.

It is right, fitting, and appropriate to consider how governments abuse technology. One the other hand, to descend into a fearful state about data making it "a lot easier to discredit and disrupt political activists" is both unbalanced and fundamentally disrespectful to our forebearers who faced lynching, Pinkerton detectives, the Raj's army, etc.

So it is your assertion that technology is NOT making it easier to target people?

> 70s

Yes, I'm familiar with history. This is somewhat off topic.

> unbalanced

Insults? Really?

> fundamentally disrespectful

I never made the comparison to lynchings/etc. If anything, modern technology has made these tactics safer. Really, this was my point - you are thinking about tactics as they were used decades ago. You might want to actually read those JTRIG links, as they describe a very different sort of tactic.

I personally think it's a combination of things. Sometimes Congress is just on board with what's happening. Sometimes they don't have an idea what's happening. Other times, the surveillance state has their finger on the scale.

I think the case of Jane Harman is the creepiest example of this -- a case where the DoJ withheld prosecution of a surveillance "friend", derived from NSA surveillance, so that she could continue to support an NSA surveillance program.


Selective prosecution is one of the stronger abuses of power there is.

Damn straight! it's so demonstrable that our laws are being selectively enforced but what happens when Habeas corpus is selective enforced? We came damn close to losing it in 2006.

You neglect to mention that _Harman herself_ was on the other end of that line.

Although this is a very plausible scenario, I'm not sure it's the "simpler" answer. It requires an incredible political will in favor of an extraordinarily controversial set of programs.

It seems to me that the "simpler" explanation is that these programs, whose existence and scope are no longer in dispute, have indeed generated intelligence about questionable conduct of members of / leadership of one or both houses of congress.

It's surprising that some people still think that terrorism prevention is a true priority.

I don't think that. I think DOJ and NSAs true priority is "maximize headcount".

Nobody claimed that. There are many different priorities the DOJ and NSA may have besides "terrorism prevention" and "maximize headcount".

To be clear: do you mean maximizing the headcount of the USA, i.e., preventing domestic deaths? Or (more likely) do you mean empire building in the sense of increasing the size and power of their own organizations?

I mean increasing the number of people on their payroll. I think power is secondary to that objective.

Hang on a sec before dismissing this notion: this is precisely how Petraeus fell.

Saw a level-headed response in a privacy and surveillance thread. Of course it's tptacek.

> The mass surveillance apparatus is the perfect tool for collecting blackmail material on current and future leaders.

Thank you. Thank you. Thank you.

It's shocking how rarely you hear this angle on things, but it's easily the most sinister aspect of these programs.

It's also the one that will most likely kill these programs dead. Neither party wants security agencies picking winners for them, or deciding who gets to be in Congress.

do not forget that Snowden made it pretty clear the NSA was spying on the German Prime Minister, for the german intelligence agency! ...guess what may have been the offer they had. My guess? One agency spy on the other's leader as part of the job, exchange for its own leader info = ultimate power without the risk of a treason charge while investigating your own leader.

*German Chancellor

That's an awfully charitable view you have of politicians in the United States. The corruption is so deep within the US government that three letter agencies needn't blackmail any elected official. Our elected officials are collaborators; Quisling-types that pay lip service to the founding ideals of our great Republic.

Even if they don't, they can make it. They can bust any politician for career ruining material quite easily. If the FBI says you have CSA images on someone's machine, how many are going to doubt the FBI?

That would also explain why corruption is allowed to happen, kinda. Is there a realistic exit from that situation?

IF this were the case, then the solution would be a whistleblower. Or someone hacking into the system, who makes the information collected public.

Of course this person would face even more risk than Snowden ever did.

On could argue that was why Aaron Swartz died. Of course discussing this is considered "CT".

It's somewhat shocking that smart people will believe this with the only proof being a man who died over 40 years ago.

The proof is quite extensive.

There's no incentive to fix it and plenty of incentive to let it remain "Someone Else's Problem" or indeed make it worse.

See also: military industrial complex, corporate lobbying, the blue line, security theater, budget in-fighting

We are Aldous Huxley's version of totalitarianism, where we are drugged and entertained into submission.

Yeah, but I'm wondering more about the inaction of other federal powers. Congress, President, I don't really know whose job it is, but someone in this country should have the power to deal with rogue government agencies? They don't appoint themselves.

Dan Geer at his important talk at Black Hat:

    The central dynamic internal to government is, and always
    has been, that the only way for either the Executive or the Legislature
    to control the many sub-units of government is by way of how much
    money they can hand out. [...]

    Suppose, however, that surveillance becomes too cheap to meter,
    that is to say too cheap to limit through budgetary processes.  Does
    that lessen the power of the Legislature more, or the power of the
    Executive more?  I think that ever-cheaper surveillance substantially
    changes the balance of power in favor of the Executive and away
    from the Legislature.  While President Obama was referring to
    something else when he said "I've Got A Pen And I've Got A Phone,"
    he was speaking to exactly this idea -- things that need no
    appropriations are outside the system of checks and balances. 



While Congress has been occupied with infighting and stupid political theater, the Executive branch has been taking a lot of their power.

Is it "making war" when Congress is clearly abdicating their responsibilities? It has certainly done more damage to the country than any army has ever accomplished.

The President has all the power to curtail these abuses. Unfortunately, reducing your own power is not something that comes naturally to most people. Additionally, any reduction in the national security apparatus will be a political disaster if another terrorist attack happens, so inaction is the prudent political course. It’s a tough problem to deal with and currently it seems a majority of Americans are more concerned with security than freedom. Until that changes, our elected officials will likely just voice concern and persist with the status quo.

The President technically has that power, but in reality the DOJ's policy is set by the Attorney General, and the historical relationships between Presidents and their A.G.s has tended to be fraught.

Mostly, what the President can do in reality is fire the AG. But if Obama does that, he'll have to find and get confirmed a new AG. If you're outraged by NSLs, the new AG Obama could confirm in this climate is unlikely to be an improvement.

That's an odd view of the relationship. The President gets to set policy, and the AG can comply or resign. The responsibility rightly lies with the President, and Cabinet officers are unlikely to resign over issues unless their own views are irreconcilable with their boss's wishes.

That's the theory of the Unitary Executive, made famous by Bush's OLC head John Yoo.

But there are statutes that delegate powers directly to agency heads and cabinet members, and not to the President, others that expressly limit the President's authority over agencies, and there are independent agencies that the President can appoint people to but cannot directly control --- despite residing in the Executive Branch.

Also, the Constitution gives Congress the authority to vest the appointment of "public ministers, consuls, and all other officers of the United States" directly to the heads of departments, explicitly bypassing the President, who is mentioned earlier in that sentence of the text.

Ultimately I think you're mostly right in one sense, and the President has so much authority over the DOJ that resignation is the only real authority the AG has --- which explains things like the Saturday Night Massacre --- but that the day-to-day authority of the AG and the leverage they have over the President by threatening to resign makes the balance of power here tricky.

Again: John Ashcroft thwarted not just Bush but the real President at the time, Dick Cheney; so far as we know, he didn't threaten to resign in protest, but rather just refused to authorize STELLARWIND. And, unlike the Saturday Night Massacre, Bush's party controlled Congress, and was not hostile to what he was trying to do.

This. Reducing the size of the security apparatus is a very politically costly move. Politicians sometimes do politically costly things, e.g. Merkel and the refugees, but it really has to be tremendously important for them to do that thing for them to put their political life on the line.

Few politicians has hitherto had privacy as their personal favorite value and therefore few politicians has been willing to put his political life on the line for privacy. Anyway, it's not a very inspiring thing to care about - some security hawk is probably going to just reverse everything you've done afterwards.

We have our collective chains jerked all the time over some random lunatic shooting a few people for some random lunatic reason if it happens to fit some political narrative. My facebook feed gets absolutely flooded by this stuff on a regular basis. Until people wake up and learn that they are just being thrown around emotionally like a dog being tempted with a snack, they are going to have an easy time influencing the public to do whatever they want.

For some reason, I am regularly downvoted when I make comments like this. The key thing is that people don't think about how something in the media affects them directly. It's like shark attacks. The risks are negligible, yet they captivate the imagination. The mental images and pictures that they are exposed to on a regular basis by the media, both news and fictional tv shows and movies, are specifically chosen to get a response out of them, like a bully getting a rise out of taunting his victim. People don't think they can be manipulated, because they don't like to think they are that stupid, yet it ridiculously common.

I think FBI and other related agencies share their power with those who are responsible for holding them accountable. We will see more and more of these problems as Federal government tries to snatch more power from states in the name of national security, welfare or environment.

This is not a problem that can be solved through evolutionary way but would require some real drastic moves by some courageous political leader. We could find one Snowden among several Fed employees I am pretty sure we will find more.

I can understand why LE goes rogue; it's simply in the nature of police to expand their power whenever possible.

What I can't understand is why judges tolerate it.

> > By all appearances, a significant chunk of the US law enforcement apparatus has simply gone rogue, stopped respecting Congress and the courts and is instead focused on increasing its own power.

This is one of my specific concerns about these programs. I worry that in order to correct the current state we will have to eventually disband some of these agencies and that this will leave a gap in our countries' ability to prosecute serious crimes.

Note that the courts striking down a law is a rebuke to Congress, not the executive agencies exercising it. Nor have I heard anything about the FBI ignoring court decisions - the second court case was the result of an amendment to the law, and its final result on appeal was not to ban NSLs, but merely to increase the role of the courts in evaluating their validity, and, if the recipient of one wishes to challenge it, to force the government to initiate the lawsuit rather than the recipient. Relatively dry stuff. It's hard to see how any of this implies that law enforcement has "gone rogue, stopped respecting Congress and the courts", except the one instance of misleading Congress about the number of NSLs issued, a decade ago.

While I agree with the sentiment that agencies are going rogue, I think the power play rests with the executive branch. NSA, FBI, Justice Department, etc. all report to one individual, the President.

All agencies in government focus on increasing their own power, just like businesses focus on making money. The ‘War on Terror’ allowed the executive branch and national security related agencies to take on too much power. We the people, congress, and the courts need to curtail this power. Making permanent gag orders illegal would be a small start.

And if agents were using their powers to investigate critics, heads should roll with jail time for all involved. We don’t need a rehash of Hoover’s FBI and the crimes it committed.

I'm hijacking the top comment here to link directly to the ACLU donation page. You should do a one-time donation or become a member, if you care about this stuff. The ACLU is on the front lines of this war every day.


(I have no affiliation with the ACLU other than having been a member for some years now.)

> This new article does not disclose who that subscriber was

Which is good. He deserves his privacy, and only he should decide if to reveal himself. (Unless he's actually charged with something in court.)

Props to the man for sticking this out for so long. He first point blank refuses to comply, the FBI then withdraws the NSL but keeps the gag order in place and he then fights them for an additional decade to get the gag order lifted. That's tenacity.

This reminds me of the Lavabit case, wonder why the one shut down their service and the other managed to simply reject the requests:


The Lavabit case was complicated by Ladar Levison's handling of the DOJ's request, and by the fact that his security architecture was "all-or-none" in a way that did not allow him to selectively disclose only the encrypted messages DOJ asked for.


I see. So he should have simply stonewalled at the very first request, not wait until it dealt with someone he wanted to protect.

On the other hand the story above does not relate whether or not there were previous requests there is a passage that indicates that the operator of the service had knowledge of the person involved.

"Nick wasn’t sure why the FBI was demanding the information, but he knew a little about the subscriber the FBI was apparently investigating, and he doubted that the investigation was a legitimate one. "

He also wondered why the FBI did not involve a judge and in the Lavabit case a judge clearly was involved.

To protect his users and avoid imprisonment, he would have had to fix both problems: not taunting and slow-rolling the DOJ, and doing that having designed a system that either (a) didn't give him the technical ability to decrypt messages or (b) allowed him to easily do that selectively.

The real problem with Lavabit is that it was incompetently designed and made security promises it was flatly and obviously unable to keep. From the transcripts, it seems like Levison tried to represent to the DOJ that his system was stronger than it was, when it was clear to anyone technical that he could easily comply with DOJ's demands.

Regarding judges: it may be that Levison happened after reform of the national security letter laws, so that simply as a result of timing, Levison's predicament had to involve a judge. However: even if that hadn't been the case, a judge would have been involved as soon as Levison (or Calyx) refused to comply.

I think he agreed with that perspective, otherwise he would not have shut it down, clearly it was not salvageable at that point.

Still, in spite of the damage done and the technical flaws that was quite the holding action and I think quite a few companies would have folded and much earlier.

What was the point of his "holding action"? DOJ not only got what it wanted, but, as a result of Levison's hapless attempt to wriggle out of their request, they got Lavabit's TLS keys as well! Had Levison simply complied up front, he'd have held on to the keys, and been able to fold the site up gracefully, losing only the specific account DOJ targeted.

Panic. When cornered people make strange moves. It's easy enough to look at this rationally after the fact but I'm trying to imagine being in the focal point of such a powerplay and I'm not sure I'd make every move by the book.

Ok. You see, though, how his holding action probably harmed his users, right?

Yes, absolutely. In the end everybody lost.

Still a hero though.

He heroically lost the crypto keys to all of his users data in order to try to protect one user's data?

To me, there's a difference between a "hero" and "not the worst person in a particular conflict".

Agreed. There has to be a place for principles in this world.

If we're apparently putting people in jail for their intentions then definitely, intentions matter when the situation is the reverse as well. The guy tried to make a stand, messed up under pressure (and who here would dare to say they would not, I'm pretty steadfast but when that sort of power is aimed directly at you and your small company it takes some serious mental fortitude to even consider rejecting the request) and unfortunately made some bad technical decisions.

All in all, nothing but good intentions and with a bit more foresight it would have ended quite differently. I sincerely hope that if I'm ever the subject of such pressure that I'll do half as good, hopefully better but definitely no guarantees there.

And trying to protect Edward Snowden was - especially at that moment in time - something that was a very hot issue as an American citizen well within reach of the arm of the law.

Hold on, don't move the goalposts. Levison did not design Lavabit under pressure from the DOJ. He had years to work on the design, the precedent of Hushmail to work from, and, let's be clear: until the DOJ requested documents that violated his own political leanings, he was compliant with other DOJ requests.

> until the DOJ requested documents that violated his own political leanings, he was compliant with other DOJ requests.

And that's his mistake. He should not have cared at all about which users the DOJ wanted info about, he should have realized that if he was capable of complying with their demands at all that his system should be fixed rather than kept that way.

I can see how this happens though. Imagine your average TOR exit node operator. This person may have noble intentions and dreams about supporting dissidents. Then finds out the exit node is used to peddle all kinds of gore. The temptation to become involved in determining what is and what is not supported use of 'your' exit node must be tremendously strong. Especially if some of that traffic is personally revolting, offensive or in some other way against your own personal philosophies.

So Levison may have thought that doing his bit, aiding the DOJ and purposefully having these holes was a net positive for society. But looking back I think he'd be the first to agree that that was a very bad mistake.

We disagree, for whatever it's worth. To me, his mistake was in attempting to provide government-proof email without taking the time to build the expertise required to do so.

The Internet is littered with broken attempts at providing government-resistant messaging systems. They're a plague. There experts trying to deliver the same systems, but securely; they get drowned out because their UX isn't as smooth as that of Lavabit's --- which took full advantage of the UX benefits of total insecurity to get more users.

> To me, his mistake was in attempting to provide government-proof email without taking the time to build the expertise required to do so.

It is very hard to find someone who knows what he does not know. Much more capable people than Levinson have been bitten by that particular failure.

> There (are) experts trying to deliver the same systems, but securely; they get drowned out because their UX isn't as smooth as that of Lavabit's --- which took full advantage of the UX benefits of total insecurity to get more users.

Agreed. Conclusion: user experience counts. What I wonder is why those experts in crypto can't get their act together and deliver a user experience that's at least good enough not to get in the way of acceptance. Wherever there is a conflict between 'good crypto' and 'user experience' the crypto wins out in one product and the user experience wins out in another. Users overwhelmingly choose the packages with the good user experience and the bad crypto.

This may not be fixable in the case of conflicts but for many of the issues they may in fact be simply a matter of attention to detail, after all if the effort can be expended to make good crypto then a similar effort should go into the user experience since in the eyes of the users both are important. Delivering great crypto in an impractical package is a non-contribution.

That is going to be an uphill battle if the past is anything to go by.

Which reminds me that in iMessage, Apple still has the keys but the forward secrecy is enough to exclude it from CALEA because of the "encryption" exception. This of course caused FBI to complain, which among other example of encryption made encryption backdoors a political issue again.

Key quote:

"According to the Justice Department’s inspector general, the FBI issued a staggering 143,074 NSLs between 2003 and 2005. And every NSL was accompanied by a categorical and permanent gag order."

That's almost one per 2000 americans. I wonder how does this number compare to actual court orders.

Another key quote:

> I found it particularly difficult to be silent about my concerns while Congress was debating the reauthorization of the Patriot Act in 2005 and early 2006. If I hadn't been under a gag order, I would have contacted members of Congress to discuss my experiences and to advocate changes in the law. The inspector general's report confirms that Congress lacked a complete picture of the problem during a critical time: Even though the NSL statute requires the director of the FBI to fully inform members of the House and Senate about all requests issued under the statute, the FBI significantly underrepresented the number of NSL requests in 2003, 2004 and 2005, according to the report.

Wow - it's astonishing that you can't even speak about NSLs with people who (or at least some of whom) have top secret clearance...

Just because you're cleared in one area/agency doesn't mean you have access to anything of that level or lower. Clearances are entirely need to know.

I'm not sure of the rules today, but 10 years ago clearances in some agencies/departments didn't even transfer to other agencies due to differing requirements.

(I'm not saying that this system is good, just describing how it works.)

Thank you for the clarification.

Nevertheless, I feel like there should be some recourse in the system to appeal to a branch of government other than the secret judicial branch in circumstances like this...

You can always choose to be a whistleblower, and hope that what you have to say motivates someone powerful to protect you from the life-destroying shitstorm that will be dropped on your head.

> ...clearances in some agencies/departments didn't even transfer to other agencies due to differing requirements.

AFAIK, this is still true. Compartmentalized clearances can have all sorts of fun and exciting restrictions.

And that's just about 3 years, imagine how high the number must be by now.

I am once again reminded that the ACLU and EFF are wonderful organizations that attempt to keep the legal system barely sane for everyone else.

Sad that the ACLU operated at a loss last year: http://www.charitynavigator.org/index.cfm?bay=search.summary...

Just a reminder to donate: The ACLU operated at a loss of 18 million last year: http://www.charitynavigator.org/index.cfm?bay=search.summary...

Donate: https://www.aclu.org/donate/join-renew-give

This is part of why the ACLU, EFF and NRA are the institutions I'm most in favor of donating to. The encroachment of civil liberties, increasingly intrusive actions from our own government and the like are getting pretty rediculous.

    > ACLU, EFF and NRA
I consider my neighbour being able to own an assault rifle as an encroachment of my civil liberties.

How does that even process? Sure, if your neighbor is firing off rounds in the street, that's an encroachment, but your neighbor simply owning a thing you morally disagree with in no way affects you. If your neighbor keeps an AR-15 in a locked cabinet and takes it down to the range for weekend target shooting, how would you even know?

Edit: I really should have taken note of your spelling of "neighbour". This post was written under the assumption that both of you have a constitutionally protected right to bear arms.

I disagree with my neighbour being able to keep anthrax-infected sheep on her property too, no matter that she tells me she's got a super safe pen for them, and really prefers the taste.

Although admittedly I wouldn't know until she gets raided by the CDC or accidentally the whole nearby biosphere.

Firearms don't walk out of a gun safe under their own power.

And yet somehow every gun that's ever been used in a mass homicide has found its way out of a gun safe.

But not because the wind carried it out... it was a malicious act of a person. There's also the ability to make bombs, and other devices. Killing has been illegal as long as laws have existed, it still happens.

Please explain.

Do you feel the same way when they buy a new car? Is this "keeping up with the Joneses"?

Perhaps you should buy an assault rifle for yourself (and another for the wee wifie)!

You know how Americans feel about Iran getting nuclear weapons? That's how I feel about my neighbours acquiring weapons intended for war zones.

Your average hunting rifle is far more powerful than your typical assault rifle... tbh, it's all kind of silly wrt small caliber weapons in general.

I don't, personally own a firearm. I have gone hunting, and done target shooting with friends, and feel the right to own as such is an essential right. I don't feel that the ACLU defends this right, which is why I put the NRA.. if the ACLU or another org was less obtuse in terms of defending gun rights, I'd probably prefer them.

I'm not a nut.

Well it's a good thing we beat you brits in the war and have a superior constitution that protects our rights to bear arms. Speaking of the original subject, wasn't it some despotic king of yours that formed the star court in the first place? Am I going crazy or is LaRouche seeming a bit less crazy these days?

    > have a superior constitution that protects our rights
Mmm, you guys have certainly managed some impressive innovations in habeas corpus[0][1], property rights[2], and free speech[3][4] O_o

[0] https://en.wikipedia.org/wiki/Incarceration_in_the_United_St...

[1] https://en.wikipedia.org/wiki/Plea_bargaining_in_the_United_...

[2] https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United...

[3] https://en.wikipedia.org/wiki/Citizens_United_v._FEC

[4] The article, innit?

In the end, after all other options... the right to bear arms is key to even being able to rebel. From a philosophical pov, not advocating armed rebellion. That said, I feel that firearms ownership is an essential right, and that efforts to ban them outright do not serve the public interest.

    > the right to bear arms is key to even being able to rebel
This couldn't be further from the truth.

Every successful armed regime change has had state military sponsorship. But most regime changes are brought about peacefully, and then the army changes sides.

The French beat the British for the US actually, because it was in their interests to have Britain lose their hold on the North American colonies. Without French support the American colonists would not have been able to maintain a prolonged resistance against Britain.

At the same time, Britain's main forces were across the other side of the world, fighting battles that were more important to them at the time. They were a superpower with global concerns.

In the end, it's extremely difficult to fight against guerilla warfar against an enemy in their own territory. Generally 12-15% of the population is needed for an armed rebellion to be successful. It'd be hard for most countries to buy off enough soldiers to fight against that, in most areas.

Just looking at Iraq and Afghanistan it's rough. The rifts in that entire region are problematic. Even with superior technology and training, there's no clear victory... the same could be said of domestic rebellion if it ever came to that in the U.S.A.

In what way does your neighbor having ownership of anything implicitely encroach on your civil liberties?

One could damage your person, family or property just as easily with a motor vehicle or household chemicals as they could with an assault rifle. Even then, most hunting rifles are more powerful than the "assault" rifles that are typically used as reference for banning.

I consider my neighbor being able to utter blasphemy as an encroachment of my civil liberties.

You'll be pleased to hear that many of those in congress who have the highest NRA scores share your view.


I think you are confusing two issues here, but yes, I am happy for the government to have a monopoly on assault rifles, tanks, missiles and artillery.


We've banned this account for repeatedly violating the HN guidelines.

So how do we see the attachment?

Found the link, at the bottom of the article, hidden in the last sentence....... https://www.aclu.org/legal-document/merrill-v-lynch-unredact...

The only plausible presidential candidate who'll put a stop to these kinds of abuses is Bernie Sanders. Be sure to vote for him in your Democratic Primary.

Isn't Rand Paul also making similar promises on the Republican side?

He said plausible.

Which makes neither of the candidates relevant.

If you don't think Clinton has the desire for privacy burned deeply in to her core, you haven't been following the news.

Her own privacy.

Pretty sure she doesn't give a shit about the privacy of the average schmo in the street.

This stuff is much worse than NSA data collection. Gag orders are evil, and secret courts are even worse. I really wish people would stop worrying about government surveillance - who cares what people know about you? - and start worrying about this instead.

A pity crowdfunding for Calyx ISP failed: https://www.indiegogo.com/projects/the-calyx-institute#/

I'm still puzzled why so few people cared. In today's techno-social climate, it should go like hot cakes.

1) Journalists say that the identity of the FBI's target imply the abuse of power

2) Ten years later, all legal restrictions are removed

3) The identity of the person, which was supposed to prove that FBI's actions were abuse of power, is still not released


now that the gag order is not in place, can we learn who the FBI was spying on? was it legitimate? if not, who approved it?

this is a pointless victory unless we use it for accountability.

> can we learn who the FBI was spying on?

It seems to me that only that person themself should reveal that, or not, as they choose.

But do they even themselves know? Did the gag order prevent Nicholas Merrill from alerting the subscriber?

Based on the redacted latter, it appears the subscriber's email address is about 23 or fewer characters.


That could be, but I did notice from the gradual reveals of the NSL that it seems like they have a minimum mark-size, like 1/2", even if (or especially if) it's just one letter.

They withdrew the request. And presumably the privacy of that individual is still important enough not to disclose these details.

I was hoping to see the item they show screenshotted in various states of redaction, but I don't see any link to it. Anyone see one?

I meant the other one that they showed screenshots of in various states of redaction.

Isn't that the one I linked to? It's just the final unredacted version, but I don't know how interesting the redactions would be.

A lot of people opine that instead of the Global War on Terra we should treat terrorism strictly as a concern for law enforcement.

However, the LE attitude to the terrorism problem is "we can't wait until crimes have been committed to start making arrests; we have to identify and neutralize potential terrorists before they do something awful". And, absent a Minority Report pre-crime unit, this is where we end up: with the FBI aggressively and warrantlessly sniffing around, looking for a terrorist under every rock, and even falling on the wrong side of the sting/entrapment divide and goading people it thinks might be terrorists into participating in fake terror schemes to round them up.

I don't have any ready solutions to the terrorism problem, but it seems as if leaving it to the military, intelligence community, or law enforcement each comes with its own set of severe drawbacks which undermine human rights.

Full resolution image with text readable is at https://www.aclu.org/sites/default/files/styles/blog_main_wi...

Gag orders are like ancient laws (e.g. no horses allowed in front of church); they just stay on the books until somebody notices.

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