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EFF Wins National Security Letter Transparency Lawsuit (eff.org)
189 points by Elof 10 days ago | hide | past | web | favorite | 29 comments





If a thing requires an eternal gag order, maybe we shouldn't be doing that thing.

Kudos to EFF for casting light on the shadows.


Every law, and every sealed procedure, should have a (relatively) short sunset clause built in. Before that clause triggers it should be reviewed and extended if necessary.

In the case of NSLs, the proper legal way to do this would be to have a new judge review the need for continued secrecy every couple years.


I would prefer a sunsetting scheme along the lines of tenuring objects in generation scavenging garbage collection. In essence newly created laws would be up for review after a short period of time at which point they are either trashed or batched into a group with a longer time until next review. Long lived laws (ex. don't murder people) which have passed many reviews would be tenured into a pool of rare or only forced review.

Along with this approach I would want a new mechanism for batching several individual single topic bills for collective passing on a single vote. That as opposed to the current U.S. model of bundling wholly unrelated legislation into a single bill for voting on.


I suggest we can only have 640 kilobytes of law before a garbage collection event.

I remember reading somewhere an idea about splitting the legislature into one chamber which solely creates laws, and another which solely sunsets them.

I don't know enough about civics to say if that is a good idea or not, but I certainly found it interesting.


If you're interested in stuff like that, might want to Google some of the news about Idaho's "regulatory reset". I think I have a relatively extreme opinion about how minimalist our laws and government should be and even I'm nervous about how it's going to go, but it will be interesting and I hope it goes well.

We saw some "too many laws and regulations" efforts in Minnesota. It largely was a small government kind of PR stunt as they cleaned up some random rarely used laws... that really we're just sitting there, plus the standard deregulation on behalf of donors that they likely would do anyway....

After there was legislative turnover those folks lost the majority and if only to drive the point home the other party removed a law that shielded husbands from rape charges...if there was a law that needed to be removed that was a good choice, but the other party didn't touch it.

I think to do it right you really need to prepare and study the big picture before you legislate out things on a large scale.


Heinlein actively promoted this idea, although I doubt that it originated with him.

If we had the power to require that, then wouldn't we also have the power to just not pass knee-jerk totalitarian legislation in the first place?

Of course by knee-jerk I'm only referring to the presentation. We know these things get drafted ahead of time, then sit around waiting for the right opportune tragedy to push them through.


That is what I don't get it about US law system.

The court orders shall not be secret.

You think the gag orders are natural because you live in one of rare countries whose law system permit the gag orders. Most countries don't.


> Every law, and every sealed procedure, should have a (relatively) short sunset clause built in.

Including the law that implements that policy? Including the Bill of Rights? A law prohibiting murder?


>A law prohibiting murder?

Seems like the kind of thing that should have no trouble getting rubber-stamped every few years.

Lets invert that though.

In 1615 Iceland passed a law stating that any Basque that set foot in the Westfjords /must/ be killed. They got around to abolishing it in 2015.

Seems like the sort of thing that probably should have been revoked earlier, no?

More generally, most countries legal codes are a god damn shitshow of strata so dense it takes years to decades of study to understand them even a little.

As a result, rulings are arbitrary and hard to predict, citizens are uninformed on the law and can be blindsided by vindictive police, new laws are disproportionately hard to create due to conflict resolution with old laws being required and parliaments enshrine old laws in tradition and are lothe to amend them.

In general, it's the legal equivalent of that codebase that no one is willing to change because no one remembers why things were implemented in the first place.

Lets not pretend that adding expiry clauses to existing or new laws would lead to a world where murder is legal. That'll get tracked pretty closely and refreshed on the regular. I would expect two outcomes:

1. A government department is created specifically for the purpose of tracking and ranking upcoming law expiries by importance. We should probably have something like this already.

2. For the things society holds really dear, murder/rape/assault, taxes, driving laws etc, I would expect to see a regular "refresh the core issues" session at the start of every year. Essentially a formality where the government can go "yep, torture is still bad, moving on".

However, I'd expect most of the random statutes against oral sex that are still all across the US to expire pretty quickly with lawmakers by and large not giving enough of a shit to refresh them, and that's /good/. Those laws serve no meaningful purpose, their only use is as a weapon for corrupt police to threaten average citizens with.


A yearly review of all of the laws would be labour intensive (read expensive). Governments will simply say "reviewing all the laws means we have to raise taxes to pay for the review, so instead we're going to do a blanket refresh on all laws"

I'm envisioning the average sunset clause being more like 20 years. The annual refresh would be "lets make sure this doesn't expire" done voluntarily for the things that are really important that are currently going to expire in 19 years but everyone wants to reset their timer every year just in case.

I also don't really think it's that big a deal to ask the government to once a year go "we all still think rape's pretty uncool? yep? great, all in favor of amending the Consolidated Sexual Offenses Act 2019's expiry to be 2038, up from 2037? Done! Moving on."

I imagine any politician that objected would get eviscerated in the public eye. Should be a one-hour-a-year process to knock out all the key stuff, particularly if everyone knows first sitting session of the year is the refresh-the-core-values session.


That doesn't sound like a review, it sounds like busy work

One of the problems right now is the sheer size of some laws that get passed a matter of hours after their final draft is released, with no good way that I know of for people to diff the various versions and catch things. Already no one's reading all the laws.

That's a separate issue. This isn't even really a matter of law, it should be a matter of simple parliamentary procedure that laws will not be considered unless their draft has been available unedited for three months, unless there is a unanimous vote to have them be considered early.

Fair point. A blanket renewal is nearly as pointless as no auto-expiration.

There is a solution though: write fewer laws. Ideally so few that citizens can reasonably be expected to know them, or at least so they can be counted.

I wonder if a society can function with a max of 1000 laws at any one time?


Teach law in school. Require students to understand law, because they are citizens that have to follow those laws. If kids can't do it well, then the laws would need to be changed.

A more scalable approach would be to tie the sunset date to the number of votes the bill receives when it becomes law.

So, if something receives an unanimous vote in favor, maybe it shouldn't have a limited term at all. Something that has a 3/4 supermajority in favor can probably last for a few decades without review. Something that barely squeaks by with 50%+1 should be considered a crutch, to review at the earliest opportunity (i.e. sunset shortly after the next election date).

Furthermore, any new vote on a repeal of an existing law should override earlier counts. So something that was originally passed unanimously only doesn't sunset for as long as nobody tries to repeal it. If there's a repeal vote, even if that fails, the new vote percentage establishes the sunset.

This would have some very interesting effects on legislatures, especially those dominated by two or three parties. The dominant party would have to balance between passing uncompromising laws that sunset very quickly, versus compromise that might amass a supermajority sufficient to close the issue for a long time.


The sunset clause for the constitution and amendments should probably be on the order of decades; those aren't individual actions but wide ranging codes, with a VERY HIGH BARRIER of entry (and they should have just as high a bar to clear for maintenance). They should still be reviewed, curated and maintained over time to keep them matched to contemporary language. The changes in language would also allow for re-review of case law and other methods of defining what laws mean. That would also be a strong reason for maintaining the language as is if it currently works.

(edit)

Also, like DHCP leases, for such important items you'd want multiple review chances. E.G. If it's a 100 year expiration, review at 30 left, 15 left, 10 and 5+ left possible to review at any time.


> you'd want multiple review chances.

Since political whims can very on a frequent basis, such reviews should require consensus over time to have an effect. Ie. 3 successive presidents must decide the constitution is a bad idea before it can be abolished, etc.


Modification, including deletion, would require nominal level of legislative action. The reviews would obviously require a little less, but still enough for a clear majority.

Failure to renew before the actual sunset is what would trigger the automatic deletion/deactivation.


Gotta make sure we allow the next Congress to remove 99% of the laws protecting the citizens and declare the speaker the new ruler of the USA. Duh.

These laws sounds nice but in practice shouldn't be blanket applied to everything, you've very easily pointed out why.


Make it the FBI's responsibility. Every NSL has an automatic termination date of at most 10 years in the future. If they require ongoing secrecy past that date, a court order is required. Any party in receipt of an NSL can thereby publish the NSL once that date has passed, unless they receive a court order to maintain secrecy.

There's an antipattern here to guard against. There are a bunch of tax breaks that turn into an eternal funding source from donor companies. "It would be a shame if we let anything happen to your tax break."

Great idea, but a much shorter time-frame would be in order, especially for something that really is unconstitutional.

Rule of law, democracy, free speech and dissent are at odds with secret courts, secret processes and secret orders. A democracy is about transparency and accountability which cannot happen in secret.

A democracy loses meaning with these kinds of laws, and the freedom act is a classic example of Orwellian doublespeak.

There are obviously many people who care deeply about democracy but given how long these activities have gone on and get passed without strong public push back betrays a serious lack of organization in the public sphere. Unless a million people are on the roads this won't stop.


If you're happy about this, then please http://eff.org/donate :)



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