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on July 16, 2011 | hide | past | web | favorite



This is a very serious accusation to raise, and I'm hoping someone more familiar with FOIA procedure chimes in. My own guesses as to what happened in descending order of probability:

- There was a warrant and a properly worded FOIA request will eventually dredge it up

- There was a warrant and it's under court seal

- DigitalOne fabricated part or all of the story

- There was no warrant

I will lawyer up if necessary but I think it's very early to be saying that there was a warrantless search.


Justice must not only be done; justice must be seen to be done.

If an FOIA request does not retrieve a warrant, there was no warrant for the purposes of public justice, even if there was a warrant. I hope that sentence was clear.


Crystal.


I wouldn't hold my breath. Their records system is terrible, in the sense of being woefully under-resourced and their software is out of date. For a recent case like this, it's highly likely that it has not yet been processed into their central records system. As a first step, I'd say go to the FOIA page on their website and look at the current backlogs. I haven't followed this episode closely, but I'd say the chances that they just steamrollered their way in without a warrant are quite low.


There's no such thing (legally) as a warrant under court seal. If there is no warrant presented, and no warrant that can be gotten simply upon request by the searched party, then this was a warrantless search.

If it was a warrantless search, it was a crime, and every participant engaged in a felony (presuming they were armed.) US Code 18-242 makes it a felony to violate constitutional rights under color of law (while armed. If unarmed I think it is not a felony, a lower penalty applies.)

If the constitution is the highest law of the land then no subordinate organization (namely congress) can make a law that violates the constitution. Congress was authorized to make laws, and the government was given limited, enumerated powers in the enumerated powers section. If a particular law is not under and enumerated power, or involution of the constitution, it is never a valid law. The moment it is signed, it is null and void-- according the the supreme court in Mabury v. Madison.

Thus, a law authorizing a "court seal" for warrants, which violates the fourth ammendement, even if it exists, is null and void, and does not need to be struck down by any court to be null and void.

Without this law, without any presented warrant, the search is thus illegal, and every participant is a felon (if they were armed.)

I say all this to point out, just how far from obeying the law our government is.

Of course, it is absurd to expect that any prosecutor in the justice department will bring any of these people up on charges (presuming that an investigation reveals the facts to be as supposed in the context of this discussion.)

Since the government is not operating within the bounds of the law, the government doesn't have the protection of the law, and the government is, itself, a criminal organization (to the extend that the previous two clauses are true.)

Denial of this-- which is not really an opinion so much as legal fact-- is why americans are constantly surprised when things get worse and worse. (For instance: The TSA is not valid under the law, all of their searches are illegal. But nothing was done about them, so now they are molesting children in public.)

Things are going to get much worse until people start standing up to the government.


Why will you lawyer up? I'll be cheering you on, but to what end?


Well, I certainly hope not to. But I'm a paranoid person by nature, and I run a service for users even more paranoid than I am, so I'd like to get some documentary evidence about what happened.

I don't trust the DigitalOne people at all and so far everything we know about the raid has come from them. If I have to I'm willing to throw some money into the legal system to get some answers for our users.


You are now running a denial of service attack on yourself.

Pretend I have Oracular knowledge about this case. What could I possibly tell you that would be more important to your users than your next three weeks of regular operations? Is "The FBI had a warrant for someone other than you." that information? Is "The FBI did not have a warrant but thought they had exigency, targeting someone other than you?" that information?


Yeah, the takeaway from this is "pick vendors better in the future" (I know a lot of great hosting/colo options, would love to have Pinboard...), and "have redundancy ACROSS providers." Don't focus on recovering losses, focus on the future.

Buying colo (or especially higher level stuff like managed hosting or even worse, EC2 or PaaS) from a single vendor with multiple sites doesn't protect you from: 1) Them going out of business 2) Them deciding to bounce you as a customer 3) Them getting raided by FBI/Al Qaeda/etc. at multiple sites

You ALSO want to make sure the providers you pick don't share much physical infrastructure (e.g. don't use SoftLayer AND Internap at the same physical buildings...).

The hassle is it means 2+ sets of support numbers, 2+ sets of provisioning procedures, 2+ sets of billing and contractual relationships, etc., but it's worth it. This is why having standardized provisioning procedures across vendors is awesome (everyone uses x86 now, but having standardized management tools and APIs would be nice, especially for cloud stuff).


I think he runs pinboard


I believe tptacek knows that. I think his point was, what do I hope to accomplish by tilting at this particular windmill.


It's unfortunate that your responsibilities as a business person preclude your taking on the FBI in this regard. I, for one, would be very interested to know on what basis they executed this seizure. That said, I would not expect any business, even one affected by it, to expend capital in an effort to find out.


Here's a guide to FOIA requests from the Reporters Committee for Freedom of the Press.

You don't need a lawyer to file a FOIA request, there's even a handy letter generator tool linked to from that page.


Or, he specified the information in his query incorrectly.

Or, the DoJ misfiled something in their "Central Records System".

Or, the warrant is sealed.

Or, the infamously lossy FOIA system just said "fuck it" to this particular attempt to find the warrant.

And, the FBI didn't conduct a "raid on Instapaper". Instapaper and Pinboard were collateral damage for a different raid and, according to Arment, his drives were never in FBI custody.

So, my question right now is: what specific records did this particular FOIA request specify?


The FBI response letter is linked here and seems to list a specific Reston, VA address: http://f.cl.ly/items/2t13422O1n441b1R2F3E/Instapaper%20Raid%...

There is another FOIA request still outstanding here: http://www.muckrock.com/foi/view/united-states-of-america/wa...

I am curious to see the results of that second request, which is more broadly worded.


I'm not sure how Teti's was worded, but I can't imagine Mocek's is any better - it's asking in regards to assets owned by the datacenter's owners.

Edit: Just was there are more FOI requests on that site for the same information


FBI conducts raids without warrants. ATF strongarms gun dealers into illegally funnel firearms to Mexican drug gangs. Federal deficits as large as the entire federal budget 15 years ago. What the hell is going on in the federal government today?

We need some grownups in government.


Most Americans would tell you that prison rape is 'part of the punishment'. They support foreign wars on the barest of pretenses. They absolutely love state power. What did you expect?


Who is Most Americans? I'm okay with any sort of sentence that begins with "Some people," because "Some people want to experiment sexually with small mammals" is probably true. But when you cross into "most" you're making a statistical assertion of majority, and that sort of thing requires fact instead of ho-hum generalization.

What happens when you say "Most Americans" in this way is the creation of a mythical Other. "I'm American, but I'm different from _those_ Americans." (I am aware that I'm assuming you're American.)


Most americans voted for either a democrat or a republican in the last many elections. I think he's safe saying "most americans" since the democrats and the republicans were involved with all of the situations he's describing, and even in recent elections, most americans voted for democrats or republicans.


I'd file this under Hanlon's razor. It would be very odd for the FBI to conduct a raid in a way that made everything they found inadmissible in court.


Maybe they didn't care whether it went to the court or not? Maybe the aim was to scare the bejesus out of the victims, and they achieved that goal?

Anyone else remember the Steve Jackson Games episode? http://www.sjgames.com/SS/


I am just curious, but would a FOI request work for a current/open/active investigation? Seems like that would be a very exploitable process (by the "bad guys") if it would.


Judges issue sealed warrants. My understanding is that an FOIPA request would acknowledge the existence of a sealed warrant and affidavit after they're executed though, unless they're part of a multi-part warrant. Search warrants expire in a matter of days. Since some or all of the hardware seems to have been returned, there's no reason for it not to show up in a properly worded FOIPA request.


It amazes me that people who generally are computer averse wind up making decisions about the legality of actions with computers.


You forgot a "May" in your title. Please.


Would a gag order hide the warrant? This could explain why no one is suing the FBI.


This is why no one is suing the FBI:

http://en.wikipedia.org/wiki/Sovereign_immunity

You can't generally sue them unless they physically maim or kill you. Government privilege.


I checked that page and checked the page specifically addressing Sovereign Immunity in the USA. Other than the repeated assertion that the US government has it on the wikipedia page, I could find no evidence that they do.

For instance, I doubt the constitution provides for this immunity.

I think that this immunity is not legal.

But maybe I missed some text in the constitution that grants it.


Yes, some gag orders last 90 days for certain felonies...namely computer break-ins..ie hacking ..do not know about the other ones...


There's also the separate parallel intelligence warrant system (Foreign Intelligence Surveillance Act of 1978) http://en.wikipedia.org/wiki/United_States_Foreign_Intellige...

About as close to the Star Chamber as exists in the US judicial system. Basically the rules of FISA warrant include "you cannot talk about FISA warrant."

If a FISA warrant were served, it would kind of excuse DigitalOne's behavior in the whole thing to some extent.


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