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Internet Archive successfully fends off secret FBI order (theintercept.com)
187 points by emilong on Dec 1, 2016 | hide | past | favorite | 34 comments

I'm curious how many of these "NSL"s actually have anything to do with actual national security investigations, or if they are just defaulted to if there is a politically plausible excuse that it has something to do with national security.

For example: NSL used to go after an ISIS propagandist working within the United States and is a US citizen. They've got information he is talking to ISIS/ISIL via an NSA intercept. They know who he is, he is pretty well involved and known to be involved in radical Islamic terrorist activities and social circles, to the FBI and others. They NSL to get information with the gag required to not tip off and close up the whole cell or disclose IC practices used against foreign adversaries.

However, I can see this case being more likely:

US Citizen on Twitter quotes the Qu'ran a lot, and writes a lot in Arabic. One day they quote a verse that sounds militant, or say something that seems like it may be an indirect frustration with USG, US citizens, or @-replies somebody who is within a couple of degrees of an investigated radical. Some keyword search FBI runs on the Twitter firehose picks this up and an analyst says "eh, this guy looks sketchy." FBI wants info, doesn't want to cycle through the courts, and knows they can NSL and say it's "because terrorism", even though the person in question is more being profiled for something innocuous than they are actively involved in anything radical (i.e. it's perfectly legal to be a religious Muslim in the United States.)

I've a feeling more often than not this is water taking the path of least resistance, and it's easier for special agents to issue these and that's why they issue them so often. Unfortunately we only get to see what an NSL looks like, but I'm curious who the guy is they were going after and what "national security" threat this guy really is or was.

I honestly believe people working for three letter agencies don't see this as a distinction. They're both "because terrorism" and technically, that's correct.

You and I can probably agree that one of them is overreach, but I don't trust that they have internal mechanisms to discourage overreach - that would be counter to their interests.

Edit: Clarification

This is dangerous and this banality of the process is what will lead us to an actual authoritarian state.

The FBI is made up of humans and humans are lazy as well as judged on the effectiveness of their jobs. Regardless of if you are an American paladin-cop or a boring FBI bureaucrat, you're going to take the path that makes it easier for you. And aside from a few underfunded, underpowered civil liberties groups bringing a swarm of mosquitoes to the firefight, the FBI/DOJ has the real power here. They get to use the virtually limitless funds of citizens to operate in the letter of the law or the spirit of the law, depending upon what is advantageous, and will issue charges on the letter of the law or the spirit of the law, depending on what is advantageous.

The depressing fact of the matter is that the natsec apparatus will remain the winning side until mainstream perspectives on policing change; this "victory" rings hollow and the fact that it took years to publish a redacted note is overall worth as much fanfare cutting a rhinoceros with a razor blade. We're celebrating a slaying of the beast right before it goes and gores somebody else. (I'm celebrating too, but I'm not going to deny it's more for morale than substance.)

For non-activists, though, it is easier to believe that the system works as intended and people want to trust that it works as intended. I don't think America is truly authoritarian as much as it is too lazy to pay attention until either the guns are pointed at them or the panem et circenses dry up, but by then it's too late. I don't actually blame the FBI or any TLA here. If we don't like this, the finger should be pointed at anyone who encourages this behavior or turns a blind eye to it.

> though, it is easier to believe that the system works as intended and people want to trust that it works as intended. I don't think America is truly authoritarian as much as it is too lazy to pay attention until either the guns are...

I wonder if people just don't know how to make a difference. I wonder what would happen if schools taught activism as part of social studies. The idea itself is absolutely hilarious. A lot needs to be taught in social studies, like just getting kids to get along adequately

TBH i'd be fairly happy if it was either of those two cases. The second is obviously an overreach, but i'd be willing to bet these use these NSLs on things wholly unrelated to terrorism. Drug investigations, organized crime, etc.. Anything can be related to national security if you stretch it far enough.

IMO crime can be separated usually to be either anti-ideology (emotional-psychological fanaticism), such as terrorists, rapists, murderers that are fanatically enveloped in something against the status quo of behavior, or anti-commercial (property destruction and crime, fraud, "white collar" crimes) in which somebody's money/goods are being misdirected or misused. The first is usually "terrorism" or "terroristic" behavior. As for the latter, we have thankfully come up with a novel definition of "economic terrorism".

So you're probably right.

Which one of those categories does jaywalking fall into? Smoking pot? Drunk driving? Selling drugs? Smuggling? Illegal sex acts? Negligent manslaughter? Domestic violence?

It's great that the EFF was able to help them out with this.

I don't know of any other organizations that would even be able to help out in a situation like this.

I donated to the EFF the other day, here is a link for anyone who is interested in financially supporting this type of work: https://supporters.eff.org/donate/power-2016-w

It's also great that Brewster Kahle and the Internet Archive invested their time, energy and resources, and took some risks, to stand up for someone else and for all of us.

Thanks to everyone involved. If the U.S. (or any country) is going to be the land of the free, it will only be when each citizen makes it that way.

They're an option for AmazonSmile too. I've had that set up for about a year now, forgot to use smile.amazon.com for a few of my big christmas purchases though :/ Really wish amazon would just stop requiring the sub domain to be specified for it to be in effect.

>As a result of their fight, the FBI folded, rescinding the NSL and unsealing associated court records rather than risk a ruling that their surveillance orders were illegal.

This scares me. I know why we have a legal system that allows this kind of behavior, and those reasons are good, but the few times someone pokes someone with the resources to fight back, they get to say "nevermind!" instead of it being ruled that they can't go around poking people like that? Then they keep going around hurting everyone else. It's a terrible state of things that systemically leads to bad behavior, but I can't think of a better system :(

The system has ways to deal with this type of problem [0], it just needs to use them.

[0] https://en.wikipedia.org/wiki/Mootness#Voluntary_cessation

> but I can't think of a better system :(

I can. You just are not allowed to take your ball and go home.

As a result of their fight, the FBI folded, rescinding the NSL and unsealing associated court records rather than risk a ruling that their surveillance orders were illegal.

This part angers me the most. So basically it was a bluff. Either that or if this was serious than FBI is reckless and incompetent. Because someone decided: "oh crap this is getting some publicity, we didn't want it because we didn't want him to be tipped off, but now since we have to defend ourselves and judge might be on their side, let us just forget about tipping him off." So then if he really make some terrorist related decision based of knowing they after him, who am I supposed to blame as a law abiding citizen who pays his taxes and demands FBI to be serious??

I will await for the day when one judge will say: "well wait a second this might be criminal I want to see what you guys really up to, now its too late you can't withdraw".

I am not saying it is right (it isn't) but this is what the FBI does: they try to intimidate bad people and innocent people alike, skirting the edge of the law or outright violating it.

I saw some recent article saying that they were asking for donations because they wanted to move everything to Canada, as they were "afraid of Trump." Yet it's currently Obama's administration still, and that's what's actually causing problems.


Odd? You ain't seen nothin' yet.

Power corrupts. Absolute power corrupts absolutely. Obama showed far less of an authoritarian streak than either Trump or Clinton (or Bush 43), but he ended up embracing drone strikes and NSLs once he saw their convenience. I feared how Clinton might use this power, and I can't even imagine what Trump will do.

Is it? I suspect the thinking is along these lines: "this shit is already really bad! And that's with a kinda - or at least, publicly - sympathetic government..... and the new guy has openly said he'd like to massively expand this program! welp"

It's good to see that it's now possible to fight these NSLs off. The people receiving them can require a court to review the NSL before complying, and that just seems much, much better to me. The FBI can no longer just gag people and force them to comply without judicial oversight.

It is much better, but what of the judges? They defended themselves here, but who's to say the FBI won't find judges that is favorable to their interests? I assume it's not a different judge

> Now recipients can simply challenge a gag order by sending a letter to the FBI indicating they won’t agree to it without judicial review, and the burden is on the FBI to then convince a judge that the gag should be upheld.

It's now closer to the territory of having to obtain warrants. Warrants can also be seen as subject to the same issue of biased judges, but at least you can now request judicial oversight by letter.

A legitimate problem, but what is the solution? At the end of the day, the decisions must be made by human beings, and they can be biased, influenced, etc.

The judges are in an entirely separate, co-equal branch of government and they have lifetime appointments. The law empowering the FBI was made by another entirely separate, co-equal branch of government, whose members' jobs depend on their constituents votes in every district in the nation.

99.99% of Judges do not have lifetime appointments. I believe only the US federal supreme court has lifetime appointments, but it's possible some state supreme courts have lifetime appointments, but all the ones I've ever seen do not.

Article III section 1 gives a lifetime term to all Article III judges. Article III courts include the Supreme Court, Federal Appellete Court, and Federal Circuit court.

Agreed. In this case we're talking about the FBI so I assume it's an issue for federal courts.

> Chris Butler, office manager for the archive, suggests that pushing back on gag orders is the least recipients should do.

“It’s almost always doable for the people issuing these [law enforcement] requests to get a court order for nondisclosure if they think that that’s important,” he says. “And that’s what we require in order to not inform or not send out notice to users when their information has been requested.”

NSL's are unconstitutional and should be illegal, sadly nothing is technically illegal if you are the govt.

The govt should not be allowed to operate in secret and issue gag orders, because then there is no recourse and no oversight, which is exactly what happens in practice.

Sadly most people in this country today couldn't care less because fear mongering and appeal to American nationalism work wonders. No one cares about human rights, due process or holding people accountable.

Organizations like EFF, IA, Wikipedia/leaks are the target of state sponsored attacks and media portrays them as evil.

For every time you hear of a case like this, there are thousands probably where the recipients lack the means to fight the order or are simply forced. The fact that the FBI withdrew in order not to set precedent proves they operate illegally, but of course there will be no mainstream coverage or consequences.

Both EFF and the Internet Archive are worthy of your generous tax-deductible support. To donate to the Archive: https://archive.org/donate/. To donate to EFF: https://supporters.eff.org/donate/.

Archived, will donate when financially able. Thanks for linking

I'm not sure why they didn't use a regular court issued subpoena if they were after this one guy instead of messing around with something legally questionable.

I'm actually encouraged that it was only a request pertaining to one person, as opposed to say, install some permanent dragnet hardware that violated all IA users.


Why bother with the hassle of explaining yourself and face the possibility of a negative outcome if you can just say "because terrorism" and bypass all that effort?

It's always great to hear about people fighting this sort of thing. In part because it means people know that they can: the more people are seen fighting, the more people see that you can, and will fight.

If I had my copy of HPDH near me, I'd be quoting Neville on this.

Once again, the IA demonstrates how much a crown jewel they are of not only the Internet, but to free speech. I can think of few other organizations to donate to without hesitation and the IA is at the top of that list.

We're getting awfully close to "capable of repetition, yet evading review" territory. I hope there's a court soon that doesn't just let the government drop the case.

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