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Secret FBI Subpoenas Scoop Up Personal Data from Scores of Companies (nytimes.com)
329 points by tysone 33 days ago | hide | past | web | favorite | 106 comments



Hi. I'm the reporter on this story. Thanks for discussing it!

I thought it might be helpful for me to make a couple points.

First, national security letters have been around, AND controversial, for years now. A number of tech companies have fought the gag orders. The news here is really that we are seeing for the first time which other specific companies get a lot of these — especially banks, credit agencies and so forth, which have all been silent on the subject.

Second, @hammock is correct to say that these are not approved by a judge. Nor are they grand jury subpoenas. They are administrative subpoenas, but unlike other administrative subpoenas, almost all of these come with stringent, long-term gag orders. So, they're a pretty special type of subpoena, not one with which everyone is familiar.

Thanks again for reading.


This is an excellent and deeply disturbing article, but all I can do in response right now is suspect that if J. Edgar Hoover were still alive to see what shenanigans the modern FBI gets up to when nobody is looking, he would wholeheartedly approve. It's obvious that the agency has learned all the wrong lessons from the exposure of COINTELPRO.

The FBI is still The House J. Edgar Built, and Congress ought to tear it down.


>Congress ought to tear it down.

ABSCAM.

There is a Lavrentiy Beria everywhere. (There's probably thousands of Lavrentiy Beria's in the US alone, truth be told.) With the threat of ABSCAM-like ops looming out there, I wouldn't count on politicians saving us. Just ask black and hispanic males how well appealing to politicians for help from malicious prosecution has worked out for them historically.


I get what you're saying, but do you really see HN management turning a blind eye to people calling for direct action against Federal agencies when a bunch of Ycombinator startups probably do business with the Feds? Besides, Big Brother is probably reading HN as well.


You can't assume that Hoover would have been against increasing the power available to himself and his agency.


No this is right. If left-, right-politics have taught me anything, it is that your personal business, emails, and bedroom behavior are the concern of the federal government and its electorate--at least the 50% that agree with it.


Hoover was running his little fiefdom with minimal oversight under both Democratic and Republican administrations. Both sides used him, and doubtless both sides feared the dirt he had on them and what he might reveal if called to account by Congress.

Kompromat might be a foreign word, but it's hardly a foreign concept.


You’re kidding right? This is the history of the word blackmail:

https://www.etymonline.com/word/blackmail#etymonline_v_13560


Yea and my comment's derision is inclusive of both halves of the 2-party system.


He didn't seem to mind when he was actually running the FBI. So, assuming life-after-death isn't just a fantasy, why expect that he's changed his mind? People usually don't unless forced to do so.


As @mLuby says below, recipients of NSLs "can't reveal they've been gagged, or what type of data they were compelled to reveal."

Has evidence from an NSL ever been introduced into court by a prosecutor? It seems like this gag order serves to allow the FBI to pursue parallel construction and then keep their tracks covered in doing so.


Fwiw, it was the PATRIOT Act, passed shortly after the events of 9/11/2001, that allows for these administrative subpoenas and gag orders and removed any effective judicial oversight. Many of those provisions in the act were set to expire and those expirations were extended by both president Bush and Obama. IIRC the AG or their subordinates have to notify the judiciary of these subpoenas but can issue a gag order along with the disclosure effectively removing any judicial oversight.


A little more background on administrative subpoenas:

We Don't Need No Stinking Warrant: The Disturbing, Unchecked Rise of the Administrative Subpoena (https://www.wired.com/2012/08/administrative-subpoenas)


The Patriot Act has done far more damage to our democracy than 9/11 did. It's actually quite sad. It can't be considered Ironic because any idiot can see it's an arrow into the heart of a healthy democracy that is leery of government overreach.


The problem is anything that helps someone do their job more easily will get approved.


Didn’t Biden take credit for writing the patriot act? Seems like a strange thing to congratulate yourself for.


Thanks for writing it.

This is certainly disturbing news. And it's great to know about it. But I'm left feeling hopeless. Because we've been fighting this bullshit for decades, with little to show for it. And personally, there's nothing actionable.

So it goes.


Minor method of resistance: whenever you get a resume that lists work with the FBI, put it directly into the circular file.


You realize people self-report their work history on their resume? I can omit something and it isn’t a liability for anyone.


Lying on a resume may get you fired. Or so I've heard.


Omitting a job is not lying on a resume -- it's very common to prune your jobs to respect a one-page limit, and the resume is supposed to present what is relevant and persuasive to the hiring manager.


So why not ask for the comprehensive job history on the job application? The federal government does.


Do you know if anyone has ever responded to one of these letters with "If you want to access our data we need a signed order from a judge" and how that played out?


According to the EFF:

Can I challenge an NSL in court?

Yes. Since the statute was amended in 2006, an NSL recipient can petition a federal district court to modify or set aside both requests for records and the gag orders that accompany such requests.

There’s a good summary of the EFF’s challenges to the law here: https://www.eff.org/deeplinks/2016/04/disappointing-ruling-n...


Thank you for your reporting on this, even if it just seems to chronicle the ever accelerating deconstruction of the Constitution. Even if American Constitutionalists were able to walk back these types of clear abuses on the social compact that keeps peace by two steps, it will only be without realizing that five steps were taken towards the progress of disassembling the Constitution.

An old, irrelevant, outdated document the Constitution is, they tell you as part of the psychological manipulation game they play to get people to foolishly abdicate their most fundamental rights through the con job of government's benevolence. But in the end, well beyond the point of way-too-late, people will unfortunately have to come to terms with the reality that freedom, liberty, self-governance, and that the government is no one's friend are not old, irrelevant, and outdated principles; they are universal principles that span time.

Just like many things in humanity have been discovered and crated, then forgotten and taken for granted and driven to being lost and collapsed, and then rediscovered or reinvented; so too, does it seem humanity is on course to bury this experiment with self-governance that was kicked off in 1775, for maybe another 1,000 years, if not permanently. Is there even an opportunity or chance for freedom to rise again when it is suppressed so thoroughly by way of technology and soulless robots and AI? I think not. I hope I am for once wrong. ... War or galvanizing event to rationalize ever more eradication of liberty, incoming, all to the cheers of adoring fans.

In memoriam the people who's voices have been squelched by the tech tyrants. They will not be the last victims of this evil that is descending on us with ominous persistence.


I'm not sure how the constitution is remotely relevant here. It's clearly not protecting us from this in it's current state. If we want protections against secret government gag orders, we have to vote for people who will oppose them, which is a really small number of people indeed, or else vote to change the constitution to actually start protecting these rights. And if this turns out to be impossible, what is at fault? Probably to some extent... the existing powers of government, as enshrined in the constitution.

The governmental system we have is not a perversion of the constitution, but a reflection of its inadequacies.


The Constitution is only a piece of paper. Lots of people tell you this, usually when they're arguing against gun ownership; but they completely miss the point of what that means. In their minds that means, "So we should just do whatever we want."

Everything "enshrined in The Constitution" is no such thing. It's enshrined in our culture, and individual hearts and minds. That's why it's so incredibly stupid and naive to push for things that are unconstitutional: it means you've dismantled your respect for the ideas in the constitution in your own mind, and you're cool with others, even your enemies, dismantling it in theirs. Usually you do this for some short-term, inadequate political reason (vague promises about controlling guns or banning abortion or taxing rich folks).

The Constitution isn't inadequate. We are, because we have no respect for the rights of others when it comes to what we think is best for everyone. We are, because we believe the lies that are pumped at us 24 hours a day. We are, because we argue that the Constitution is just a piece of paper when it gets in the way of what we want.

It's not about The Constitution. It's about people generally having the government they deserve.


"Democracy is government for the people, by the people, on the principle that the people should get the kind of government that they deserve, good and hard."

[wish i could attribute this, but i don't remember where i first heard it]



Thanks! I had a feeling it was Mencken, it certainly sounds like him.


You're right. Discussing the shortcomings of the constitution is sort of viewed as a faux pax in American society, but the fact is that the current government, including its weaknesses, is an outcome of it. Discussions of how it could be improved, particularly given the almost 250 years of data we have, should be welcome.

Another strongly American social phenomenon is viewing the government as an intrusive enemy. The result is this kind of wish that the government would just go away and I think a lot of Americans think that if we could just somehow suffocate the government then the problems that it presents would vanish. The reality, of course, is not even remotely that way. Government is a tool that the powerful will continue to use to clobber each other.

It seems hopeless, but we at least need to talk about how the government can be improved, including its fundamental structures.


... we at least need to talk about how the government can be improved ...

I would amend that to "... we at least need to talk about how the government can be improved or eliminated ..."

One has to consider what the fundamental basis for government even is and how government can have any authority at all, and what the limits on that authority are.

I would encourage everybody reading this to go read The Law[1] by Bastiat, for a highly cogent analysis of these issues. The entire essay is a delight, but one point he makes stands out to me:

What, then, is law? It is the collective organization of the individual right to lawful defense. <snip> Thus the principle of collective right — its reason for existing, its lawfulness — is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force — for the same reason — cannot lawfully be used to destroy the person, liberty, or property of individuals or groups.

If you adhere to this viewpoint, the "government" (which we usually take as a proxy for "the law") is only an extension of existing individual rights, and cannot have any authority or right that an individual doesn't have. Of course one can also get into a different discussion of whether or not it is even correct to treat "the government" (or "The State") as the natural (or only) proxy for what we mean by "the law".

[1]: http://bastiat.org/en/the_law.html


The Constitution still says what it always said. The problem is that there's been 243 years of interpretation. So what it effectively says in many cases bears little relationship to it.


Not sure what you're talking about, the courts have ruled that NSLs are constitutional.


That's the problem. I'm almost 100% sure that, if you explained an NSL to Jefferson, he'd say that it clearly wasn't constitutional. Washington too, very likely. Adams, though, might have gone either way.


The Supreme Court has been a treasonous organization since Wickard v Filburn (8 of 9 justices then of course appointed by Roosevelt)

NSLs are unconstitutional.

> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


I agree there is nothing at all constitutional about them, just like the Patriot Act.


Hi reporter on this story:

Are we aware if these are targeted (~60 orders = ~60 targets) or requests for large swathes of information?


Hi. We don't know for sure how many targets are involved in these letters. However, the USA Freedom Act prohibited bulk collection of information here.

The government now releases basic statistics on NSLs, for example here: https://www.dni.gov/files/CLPT/documents/2019_ASTR_for_CY201....

In 2018, there were 10,235 NSLs, with 38,872 "requests for information" (ie targets) within those NSLs. So you can make some general inferences.


As a suggestion for following articles on the subject, you could explore why there is no remedy for this apparent loss of privacy.

I personally think that the Bill of Rights should have been amended once tabulating machines were used for the 1890 census, without which, it would have taken the whole decade to count.


It wouldn’t take a whole decade to count. Just hire more people. A census’s cost is proportionate to the population.


Amdahl’s Law is real.


It's trivially parallelizable.


We can't keep pretending this is still a Democracy when we have a completely unaccountable NSA/CIA/FBI that seems to repeatedly hide their mistakes and the dubious legality of their sources & methods behind the classification and national security walls.


> We can't keep pretending this is still a Democracy when we have a completely unaccountable NSA/CIA/FBI that seems to repeatedly hide their mistakes and the dubious legality of their sources & methods behind the classification and national security walls.

And people still call Snowden a traitor for revealing this kind of practice in 2013.


The claim that Snowden is a traitor is inseparable from the idea that the government and the people are separate entities, so that it's possible to betray one in service of the other. In that world Snowden would be a traitor to the US and everybody else at the NSA would be a traitor to the people. Obviously such a thing is only possible if democracy breaks down to the point where the government no longer expresses the will of the people, and if that is happening anywhere, it's happening in the high clearance world where voters never get to see whether or not they're happy with what's going on.


While I think Snowden is a hero and whatnot, I think a black and white reasoning about being a traitor isn't particularly helpful. If anything, the concept of a traitor is a weak one, and shouldn't matter in discourse... it's not a harm or benefit in and of itself, and any celebration or punishment should rest on the extent of those harms and benefits themselves rather then some abstract and largely tribal concept like "traitor".

Maybe the NSA needs to be taken apart or heavily restructured, but this can be done without using their words or us vs them worldview.


Kennedy wanted "to splinter the CIA into a thousand pieces and scatter it to the winds." Some suspect this was the true cause of his assassination.

It's plausible, but any government evidence to disprove it would be suspect so it's kind of stuck as permanently-epistemologically-ambiguous.


There's one very key reason that traitors, spies, 'turncoats', and others have been been so harshly punished throughout history (and present). It entails a violation of good faith and trust. That has nothing to do with 'tribalism'. Compare your reaction to the notion of a person killing a stranger to steal their watch, and another person killing their coworker to steal their watch. Exact same crime which is absurdly vile in itself, yet one is somehow vastly more repulsive.

And so I do fully support Snowden but only because the tremendous magnitude of bad behavior he revealed compensates for his treachery in doing so. By contrast I think individuals like "Reality Winner" simply lack ethics. She violated trust on what seemed to have been a very poorly conceived whim to reveal something of relatively minimal benefit to the public good. Indeed checking out the Wiki to see what came of her case I'm rather unsurprised to find that she apparently wrote in her diary of support for Bin Laden and the Taliban. [1]

In military and such organizations this is even more true as individuals take numerous oaths. And one who would break an oath without very substantial reason, is a person the world would be much better off without.

[1] - https://en.wikipedia.org/wiki/Reality_Winner


Obviously, you are right. I also think it’s a matter of what scope you are looking at. Looking at the larger system, to me Snowden reported traitors. Yes he is a traitor to the NSA, but the oaths aren’t to the NSA, but the American people. Similarly, as a police officer you should not be loyal to other police officers, but to the American people at large.


That's kind of my point, the concept of "traitor" for Snowden only exists in the us-vs-them view, which is even more radically anti-government than the moderate view. So this makes it very ironic when government officials advocate for the radical anti-government view unknowingly.


>In that world Snowden would be a traitor to the US and everybody else at the NSA would be a traitor to the people.

I think the dissonance in your argument is that the US is the people.

Snowden betrayed the intelligence community who is betraying the US.


... and fault him for not using the "appropriate channels" to air his grievances. It's too soon to know what will come of the current whistleblower kerfuffle, but it's making the "appropriate channel" take look more foolish by the hour.


Data seizures of this kind used to be based on probable cause. Now the probable cause is “living on this planet in this time”. Like, “you're a suspect, we just don't know of what yet”.


>Data seizures of this kind used to be based on probable cause.

I think they get away with this because they are just collecting the information in mass and are not targeting an individual.

There was a point where they were only scooping up information on foreign entities, and at some point that shifted and they started collecting all foreign and domestic information. I believe it was right around the time 9/11 happened.

This is what caused William Binney to leave the NSA

https://en.wikipedia.org/wiki/William_Binney_(intelligence_o...

In order to parse that information and look up information about a particular subject or individual, I believe they still require a subpoena, but who is to say someone with access doesn't use this giant trove of information nefariously.

It also opens up the possibility of someone getting blackmail/dirt on a competitor and bribing a NSA employee to get the information.

Also what is to prevent someone from retroactively going back through the information on what used to be allowed but now has changed to being illegal because of an administration change/laws being passed.

The alphabet agencies definitively need more oversight, however I feel anyone tasked with that job ends up becoming entrenched in the corruption and have a hard time holding them accountable.


I think this is the act you are referring to: https://en.wikipedia.org/wiki/Patriot_Act :)


It's still a democracy, just a very sick one.

The United States is like a 243-year-old engine with a desperate need of an oil change.

That oil is us...

...ok. Horrible metaphor but you get it.

Not calling you out just saying just don't let cynicism take hold.

Remember, we pushed Bush out and he was a war criminal.


> Remember, we pushed Bush out and he was a war criminal

But never tried him, Rumsfeld or the rest - the only ones who really got a kick to their butts were those implicated in Abu Ghraib. And now you elected a president who not only is a serial liar, probably a sexual assaulter ("grab them by the ..."), but also someone who is involved in multiple lawsuits and probably either unwittingly (the satellite photo) or willingly (the recent whistleblower case) discloses classified information to all of Western enemies.

The party of the President is absolutely unwilling to hold him accountable for his (non)actions as long as they get their abortion bans. And there is no real progress in holding the real deep state (=three letter agencies - not all government employees that don't like the President) accountable and transparent, as evidenced in the original submission.


As Secretary of State and EPA Director, Rex Tillerson and Scott Pruitt did massive damage to our diplomatic and environmental bureaucratic corps. see https://www.vox.com/world/2018/3/13/16029526/rex-tillerson-f...

Of course I couldn't deny there are deeper parts of the state than the Secretary of State


>as long as they get their abortion bans.

I disagree that the Republican party as a whole wants an abortion ban. The Republican party had control of the House of Representatives, the Senate, the Presidency, a large chunk of the Judiciary and 5 Supreme Court seats. If they wanted an abortion ban as much as they repeatedly claim they do, they would have it.

If Republicans couldn't run on promises of banning abortions anymore that would substantially impact their voter base. Actually following through on that promise seems a bit like sawing off the branch you're sitting on.


"All's well that ends well". There will be no justice, because justice would require repudiation. The main job of the President is to be a garbage bag for public outrage, tied off and thrown away when full. The truck comes around every 4 years, but the trash hasn't always started to smell.

Err I mean... Didn't you hear that GWB is actually a pretty down to earth guy now that he's out of office, and is even friends with Michelle Obama? Who knew he was so personable?

Trump is not president in spite of the problems you have listed - Trump is president because of them. Abortion and how people pee are of the same exact vein - deeply personal topics formed around dividing people. From the perspective of someone supporting Trump, the other team being frustrated is a feature - consider the past 8 years when they were in that position, as told by their media.

Continuing to draw attention to deliberately polarizing topics (as the media does) plays right into the hands of the status quo, by distracting from discussion of longstanding overarching policy (see: bikeshedding). The three letter agencies certainly form their own entrenched interests, but they're also fully supported by the larger economic interests that put on those political races ("propaganda is to a democracy what violence is to a dictatorship"). Specific companies may do better or worse depending on which team wins the race, but they all agree that ever more centralized control is needed. The immediate goal is maintenance of the US economic empire, but it is also insurance for keeping the mobs at bay in the face of rising inequality.


having a disrespect of women doesn't imply that he runs around sexually assaulting them.

There are plenty of women I have no respect for, in none of those cases has it caused me to even have the urge to sexually assault them.

It's important to keep your objectivity.


How was GWB pushed out? He was re-elected and served the maximum two terms.


It was very eye opening to me when I had a conversation with a family member who is retired CIA/NSA/Rand. Not a low level person. I was asking them about when President Clinton asked about the UFO's, and why the president was not told the answers he was seeking. Their reply: the presidency is not the highest security clearance and the president does not have a right to know everything. I wonder if that's what the founders had in mind when they formed our government. And what happens when those people disagree with whoever is in office? They control what the president knows, as they are the ones who brief him, and only what "they" think is appropriate. They decide.


The result is pretty simple. The intelligence agencies become a fourth branch of government and likely the dominant one.

It would be interesting to better understand the dynamics between the military and the NSA/CIA/FBI/etc..

I suppose that one good thing that came out of the 2016 election was that it become more obvious that the intelligence services run their own domestic policy, what I don't understand is how monolithic that newish branch of government is.


Your family members were lying to you if they said that the president doesn't get to see whatever classified material they want. The president doesn't even have a security clearance like everyone else requires, they get to see whatever they want and can declassify anything they want.


Both of you are correct.

Technically, the president can classify or de-classify anything they'd like to at any time. He is the sole and only person in charge of the branch of government responsible for this.

Practically, over many years presidents have delegated this authority all over the place, and in such byzantine ways that most of the folks in compartmentalized projects wouldn't know that he had the authority -- and even if they did, they could just point to various laws and signing letters that make it less than clear how a president would go about declassifying anything.

So yeah, in theory POTUS could take an afternoon off, walk down the street into a government building and declassify whatever he wants. That's why we fight so much over who gets the job: the illusion that these powers are present. In reality, however, if he could get the SS to allow him to take a walk (unlikely), he'd be stopped at the door of wherever he went (both by his own and that department's security services), and then the red tape nightmare would begin. By the time it was all over he'd be better off staying home and watching daytime TV.

For what it's worth, and I hate using movies as historical examples, in the movie Nixon there was a great scene where Nixon went in the middle of the night to talk to protesting students. He wanted the war to end too, didn't they know that?

It was contentious, but then one kid got it and said it aloud, something like "You don't have the power to stop it either, do you?"

Nixon looked completely defeated at that moment. Seconds later he was dragged off by his security staff.

Without getting into the veracity of that exchange, the gist of it is something we see confirmed over and over again in the historical record: large groups of administrators simply cannot be governed and instructed by one person, no matter what the documents technically look like. It's system itself that does the work and enforces the norms, whether it's General Electric or the NIS


I'd be hesitant to take what your family member said as doctrine, or that it's any different than any other Cabinet or other part of the Executive Branch.

It's important to make the distinction that while the President doesn't know all of the things that the Intelligence Community is doing at any one time, there isn't anything that he can't know. It's no different in any other part of the cabinet - the Cabinet members and senior executive service all ultimately decide what hits the desk of the President, so in that sense there is an entire staff "controlling what the president knows." Same as any large organization.

The DNI, DIRNSA, DCI, JS/J2 and all service 2's all work for the President, and they collectively are the ones who "know all the things" - so you can bet if he needs to know something, one of those people will give it to him.


> there isn't anything that he can't know

If he knew that "something" even exists!

A former civilian nuclear war planner, I think while working for RAND, learned about the existence of the US military plan for the actions involving nuclear weapons: the plan specified the amount of nuclear response to any conflict, which is fundamental for anybody who has the power to resolve conflicts (a president) to know.

But the civilians weren't allowed to know that the plan even existed: the planner also learned that no other civilian, including the people around the president and the president himself, even knew that the said plan existed: it's very existence was being actively hidden from "civilians." They also had a method for delivering them "something else" if the "civilians" asked "about" that topic.

The military managed for years to operate (to be trigger ready) on the plans they kept completely hidden from anybody, including the president.

The president or anybody around him had explicitly no chance to get that by their own initiative.

Everything nicely documented in the book "The Doomsday Machine: Confessions of a Nuclear War Planner." Read it and weep.


> the presidency is not the highest security clearance

Presidents usually have the same clearance as the highest clearance.

> the president does not have a right to know everything

This is true, clearances are need-to-know compartmentalization. I was only briefed on stuff required for my job... and would often be told something was outside of scope.


I wonder if that's what the founders had in mind when they formed our government.

FWIW, the founders didn't intend for presidents to have nearly as much power as they have today.

Perhaps you can research intelligence operations during the Revolutionary War to glean some of their thoughts on how intelligence and the intelligence community should be set up. Of course, I don't know if our founding fathers were burdened with the task of maybe or maybe not covering up the existence of UFO's. :)


If that is indeed the case then I am very thankful for the past couple of years and next year.


I would say the western intelligence community actively created rumors of the Russia scare 2.0. This should have severe consequences on every level of relevant institutions.


Thanks for pointing this out.. I (like most other US citizens) have zero idea of what things are actually like in Russia. The news reminds us daily that Russia is a frozen hellscape filled with miserable savages, Russians are the 'bad guys' of choice in a disproportionate amount of high visibility movies and Netflix shows (Stranger Things season 3 comes to mind), our school system teaches kids next to nothing about the country.

It's a bit reminiscent of North Korea's daily news blasts showing fabricated footage of how miserable life in SK and USA is. Probably not as extreme a slant going on here, but there's an awful lot of anti-Russia sentiment floating around with no readily apparent basis in fact.


>Russians are the 'bad guys' of choice in a disproportionate amount of high visibility movies and Netflix shows

Because the Chinese are off limits now (because the studios want to make money there and throwing evil Chinese billionaires into your rotation for super-villain of the month is a great way to not do that) so that basically leaves Russian billionaires and middle eastern oil moguls as your two picks for low effort evil foreign characters.


This youtube channel is a great way to get a picture of Russia from a foreigners perspective, its basically a vlog made by an English guy backpacking thru rural Russia and former Soviet countries.

https://www.youtube.com/channel/UCxDZs_ltFFvn0FDHT6kmoXA


What would be the alternative? For a functional national security program, some aspects need to be secret from the general public in order to protect against compromise.


Judges should have to sign off on warrants to access data, and there must be a process to (at least retroactively) sue if the basis of the warrant was fraudulent or fabricated.

Further, the 'gag order' component should be temporary and of minimum necessary duration. The arrest of a target should automatically invalidate the gag order because keeping this information from the defendant is a violation of due process.


If anyone really wants to poke the tiger, they could get a bunch of cheap data by sending out fake National Security Letters.

Good way to go to prison for a long time, but one person's success could force the system to overhaul.


I'm not sure what kind of accountability you're looking for that doesn't already exist.

IC Oversight [1] is a massive and well known program, which requires extensive yearly training from every IC member and even more from supervisors and executives.

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


Are they really unaccountable? The silence of people seems to affirm their choices.


The USA is a federal republic, not a democracy.


These are not mutually exclusive categories.


A gag order can be reasonable: "give us what you have on user John Smith birthday 1/1/1950 but don't tell him anything" makes sense if you're, say, investigating a criminal ring John is part of.

What is unreasonable is that companies can't reveal they've been gagged, or what type of data they were compelled to reveal, even after the fact. Companies should be allowed to say "we have disclosed access logs, location history, searches, encrypted backups for 1-50 accounts in response to lawful request from law enforcement." And they should be able to disclose the letter after an investigation has closed (whether it resulted in legal action against the individual or not).


Yes, a gag order can be reasonable. Wiretaps with warrants usually have them. IMO, there should be no gag order, and the subject of the subpoena should be required to be notified and allowed to challenge the subpoena if it is issued without a judge.

Gag orders should be allowed, but only if signed off on by a judge, and only for a reasonable amount of time to complete an investigation. If the government gets your information, and decides not to bring charges, you should have the right to know about that at some point.


> If the government gets your information, and decides not to bring charges, you should have the right to know about that at some point.

Disagree. There are numerous cases where it takes multiple investigations to "get" a career criminal (think organized crime). If each batch of subpoenas or sealed warrants were exposed even when there is no charge this time, that gives said suspect a very nice opportunity to clean up loose ends.

TLDR: If people know they are being actively looked at they will attempt to destroy/suppress/hide evidence.


> Disagree. There are numerous cases where it takes multiple investigations to "get" a career criminal (think organized crime). If each batch of subpoenas or sealed warrants were exposed even when there is no charge this time, that gives said suspect a very nice opportunity to clean up loose ends.

Subpoenas are only supposed to be issued if there's a reasonable belief that the subpoena will find evidence of criminal activity. In theory, subpoenas should find evidence most of the time--if subpoenas frequently don't turn up evidence, then subpoenas are being issued without the proper burden of proof being met.

For this reason I strongly disagree that we should build any policy around the idea that subpoenas won't turn up evidence of wrongdoing on a regular basis. This just encourages law enforcement to go on fishing expeditions, instead of doing proper, evidence-based police work. If law enforcement know the person will be notified of the subpoena after some time, then they'll be incentivized to only apply for subpoenas that are sensible and strategic, rather than applying for frivolous subpoenas that don't turn up anything.


I see your point. It opens a door for a lot of bullshit.

Really, I suppose I am advocating less for secret subpoenas and more for secret warrants. If someone really has a reason to keep something concealed in the interest in justice, then they should have no problem with a Judge signing off on it, under seal of course.

And if the secret warrant is a part of a series against a suspect, again I think a reasonable Judge could be convinced of the necessity of keeping the ongoing investigative activities concealed for the time being.


And then the obvious next conclusion is you can argue with a judge on whether or not that's reasonable.

We already have laws on the books to deal with organized crime - why would we give up our rights so that something we have no evidence for might happen?


I spent a long time in the hosting industry, most of which was in early 00s. When the feds couldn't get a court to order to hand over data we simply sold the data to them. They paid, quite handsomely at times.


This is pretty telling of the present state of U.S. law... there's no law against this (even today).

The existing laws that protect privacy and what can be done with information companies collect have never been updated post computer revolution... the same generation that was in power before then is still in power, and they've never had any interest in changing that.

The US government started failing a long time ago, and everyone in that generation is either part of the problem or unwilling to admit it IS a problem.


NSLs are not subpoenas. They are "administrative subpoenas," the difference being that they are not issued by a court and have no review or oversight by any judge or court officer. They are about as much a subpoena, as the FISA "court" is a court of law.


>"In most instances, a subpoena can be issued and signed by an attorney on behalf of a court in which the attorney is authorized to practice law. If the subpoena is for a high-level government official (such as the Governor, or agency head), then it must be signed by an administrative law judge. In some cases, a non-lawyer may issue a subpoena if acting on his or her own behalf (known as pro se representation)."

https://litigation.findlaw.com/going-to-court/what-is-a-subp...

A judge's approval is not needed. The attorney (e.g. a prosecuting attorney) is the "court officer".


You missed the point. Your citation refers to a traditional subpoena, which I was saying is distinct from these "subpoenas." NSLs are not issued by prosecuting attorneys.


>However, the most commonly used type of NSL can be issued directly by the FBI Director, an Assistant Director, and also by all FBI Special Agents in Charge, who are commanding officers stationed across the country at FBI field offices.

https://www.eff.org/issues/national-security-letters/faq#3

Most of these, and certainly the Director, are also attorneys. At least James Comey was. Plus they have FBI staff attorneys to consult with. Practically speaking, how does this differ from the local prosecutor issuing a subpoena? The local country prosecutor is essentially part of law enforcement and reports up to the AG in the executive branch of government. The local county prosecutor has dozens of detectives working for her.


Subpoenas have been used frequently for decades to request "records kept in the ordinary course of business". The only thing different in this case seems to be that there is a perpetual gag order. But if the local prosecutor subpoenas your phone records because you are being investigated for bribing an athletic coach at a university, I don't think the phone company will tell you about it.


The major thing that is different is that no judge or court is involved - these are issued by the requesting organization directly with no oversight.


The use of administrative subponeas with effectively limitless gags is very concerning, but I also feel that the attention is somewhat misplaced.

The US government receives far more private data about people from companies selling it or simply giving it away, than they get via administrative subpoena. The practice of paying for requested data also makes companies complicit in these orders, when they are issued-- they're a revenue center.

Without stronger laws barring the collection of data and providing stiff civil or even criminal penalties for disclosure (including to the government) the bulk of the situation will not be much improved.


Seriously, we need to kill off this warrant workaround that the US gov has decided is valid.

Almost every product you buy now ends up sending your data to some company, and the government has decided that means you have no expectation of privacy, which is clearly nonsense.


And don't forget FBI is the one pushing against encryption


The Justice Department as a whole has this agenda under Barr, not just FBI.


I am surprised that more NSLs have not been leaked or "hacked".

Just store the NSLs next to your user data so that when it gets stolen and published then your NSL is published as well.


I really got worried when I stopped getting these and other subpoenas from 3 letter agencies. I knew we had to beef up our server defenses. :/


I am the odd duck libertarian who believes we need a minimum income welfare safety net and health care as a right. However, I scoff at giving the government more power in the areas of surveillance and police power. I just do not understand people backing up the government in taking away civil rights and personal freedom in the name of "making us safer". Honestly we are far safer than even as recent as the 90s, let alone the 1890s. People will always find things to clutch their pearls over, and it's all relative.


Based on what I read online in discussions and in the news, there's little nuance into the circumstances around the data retrieval:

- Is it related to someone stealing classified information, spying / or spy cell, or could be planning a terrorist attack? In that case, they may be more sophisticated, or the investigation shifts to preventing something from occurring in the future, or its a matter of trying to figure out what a cell of foreigners from Russia/etc. are trying to get.

- Is it something related to a drug investigation? If it's involving drugs, countries everywhere have roving wiretap abilities because druglords use burner phones, and like above, they go to great lengths to hide / mask what they're doing as if it's legitimate business.

- Is it related to any other criminal investigation? Police has more ability to intercept communications than civilians. There is a whole world inside here of nuances. An example in USA is subpoena'ing email records where unopened email is treated as abandoned, they don't require a search warrant. Not that there's many cases prosecuted relying on abandoned email retrieved that'd be thrown out if the law changed :P

- Protect/regulation around data of medical (HIPAA in US, I think GDPR in EU), children (COPPA in US)

- Normal consumer privacy protections (GDPR in EU)

Here's an example of Germany's constitution (Article 10 [Privacy of correspondence, posts and telecommunications] , https://www.bundesregierung.de/breg-en/chancellor/basic-law-...):

> (1) The privacy of correspondence, posts and telecommunications shall be inviolable.

But, then it says:

> (2) Restrictions may be ordered only pursuant to a law. If the restriction serves to protect the free democratic basic order or the existence or security of the Federation or of a Land, the law may provide that the person affected shall not be informed of the restriction and that recourse to the courts shall be replaced by a review of the case by agencies and auxiliary agencies appointed by the legislature.

The above basically gets you what most countries have anyway, so maybe it wouldn't address the concerns people have. If there was a constitutional check for privacy over the wire/data in the cloud it'd be upheld at the judicial level to check the executive / legislative branch. However, there'd still be mechanisms where the government can access data, one way or another. It'd probably end up having the phraseology around them narrowly tailored, there'd be less swept in when decisions are in a gray area.


The citation from Germany's constitution is a bit misleading. In Germany, law enforcement warrants must be signed by a judge (in urgent cases, a prosecutor can sign them, and they have to be confirmed soon afterwards by a judge). There is an exception for communication interception by the intelligence services: those warrants must be confirmed by the G-10 committee which is organized like a court, but directly appointed by parliament. The main differences to the US system are strict separation between law enforcement and intelligence services, and direct oversight of the latter by the parliament.




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