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NSA Spying Documents to be Released As Result of EFF Lawsuit (eff.org)
338 points by wlj on Sept 5, 2013 | hide | past | web | favorite | 78 comments



Great news!

Let's put it in context. In a nation of over 300,000,000 people, in which we know several departments of the executive branch are spending billions to spy on the world in gross violation of the Constitution, it seems only one or two people (Snowden and Manning with help from the press), and one or two organizations (EFF and ACLU), are able to make any meaningful progress.

The legislative branch has done almost nothing and is largely complicit. The judicial branch has been largely complicit except when motivated by the EFF and ACLU and didn't help with Manning. Same with the press. What's left? What other successes can we build on? What historical models can we learn from?

Probably everyone reading this wants to help. Surely we can come up with some way to do something. We can contribute resources to the EFF and ACLU. Frankly, I don't see marching in the streets helpful, but I'd love to be proved wrong. What else?

WE'RE TECHNOLOGY ENTREPRENEURS! We claim to understand the issues and know how to create and lead teams and marshal resources to meet demand. If any progress is to happen, IT HAS TO START HERE WITH US.

What else can we -- you and I -- do?

- Can we motivate and support more whistleblowers so future ones don't have to fear jail and persecution?

- Can we contribute more time, money, and other resources to the EFF and ACLU?

- Can we create new organizations to augment their work?

I have to believe we have more ideas in us. What else can we do? Can YOU add to this list?


I won't claim to be an expert, but here's how I'd suggest you get involved.

* The last thing most social-good organizations need out of their software is flakey, drive-by charity hack jobs. They need the same things most organizations need: dedicated, ongoing, boring IT support. Some problems can be solved in weekend hackathons, if you can get the right people together. But if you can't contribute hacking time (some activist software is open-source), contribute your dollars.

* What almost all organizations want is your voice and your support. Know those online petitions that seem so stupid? They help. If you as an organizer can walk into a lawmaker's office with a million signatures in your pocket, it amplifies your voice. And a talented campaigner can convert some of those signatures into more meaningful action elsewhere––in the form of donation dollars, real-life organizing, and local lobbying efforts.

* Learn about traditional political organizing, which has a long and proud history and has very little to do with software. Protests and movements don't happen by accident; they're built, sometimes in small pieces over many years, by fairly traditional organizing techniques. The Ladder of Engagement[0] is one metaphor that organizers use to talk about how to get people engaged.

* Learn about other organizations in the space. DemandProgress does a lot of work with legislators that goes largely unheralded (and they've just merged with Lessig's Rootstrikers, which argues that getting money out of politics goes to the root of the problem); Fight for the Future is good at getting out the word on upcoming legislation. The EFF and the ACLU specialize in legal assistance and litigation, which is spectacularly successful when it works, but aren't the only organizations working to support this space politically.

[0] http://lithgow-schmidt.dk/sherry-arnstein/ladder-of-citizen-...


Well, everyone always talks about what really motivates the legislative branch (campaign funding), but I've never seen civil libertarian types try to start a non-profit or super-PAC to lobby congress. We know this way of influence is proven to work, and to work quite well. Why is there no special interest organization that is in those fundraising dinners, talking to the legislators, and trying to get the various committees to influence laws we care about?

Letters and phone calls work, but hundreds/thousands of people willing to donate money to candidates that support particular causes works even better. That's how lobbying works. It's not even completely unethical, really. A spokesperson just buys their way in to fundraisers and says, "Hey, our group really cares about X. Here is why. Oh BTW, we might have a bunch of voters in your district who are passionate about X and would want to contribute to a person's campaign if they also cared about X. Do you care about X?"


I think the idea of an anti-spying super-PAC is interesting. One of the priorities I feel is informing people of just how dangerous these arguably illegal spying activities are. Funny thing is the super-PAC would probably end up airing commercials against both candidates.


That wouldn't be the best use of the funds, I think. Better would be to throw the super-PAC's weight behind supporting anyone who would take up the cause. Similar to how other organizations do it. The NRA, or the beef farmers' groups, for instance.


> Funny thing is the super-PAC would probably end up airing commercials against both candidates.

That's not how politics works. You have to give candidates a reason to listen to you. If you attack both sides equally, you give up any leverage you have.


Yes, it was kind of a tongue in cheek statement alluding to the fact that both sides tend to support the spying programs.


What provides an leverage is not that level of advertisement, but the delta in advertisement with a change in behavior. As long as you wouldn't attack them if they changed and they believe that then you've got leverage.


There's no rule that it would have to be "equally."


> in which we know several departments of the executive branch are spending billions to spy on the world in gross violation of the Constitution,

We don't know that at all. The closest thing we have is a FISC opinion which declared certain minimization measures to be unconstitutional which aren't in place any more.


To be fair, how could we know whether or not the spying was unconstitutional given nobody could sue over it because it was a secret program that by its very nature went unacknowledged.


To be fair, how could we know this about any of hundreds of other government programs that touch our lives, whether we know about them or not?

Mandated vaccination regimes? We know about those, but what about the specific drugs/vaccines that go in each regimen? I don't remember voting for the person at HHS overseeing that.

Nuclear weapons development and stockpiles? How do you know those are being properly supervised or not?

Foreign military sales? How do you know we're only giving our allies ships and other arms that wouldn't give away vital American secrets?

Or what about IRS tax audit policies? How do we know those are applied constitutionally?

Or abroad, how do we know that our diplomats are not doing anything shady?

Or even at home, how do you know the local cops don't have a pen register wiretap running on your cell phone tower this very day?

And it could go on and on. When it comes to the USG it's frankly a bunch of "unknown unknowns" that the people similarly can't really pre-emptively sue about. That's why it's important to get the built-in transparency and oversight measures correct in the first place, as the job of oversight is far too complicated to leave to the people alone.


... because words can have no meaning outside of what the people in power say they mean. So our only way of deciding if what is going on is wrong is to wait for the nobles to tell us.


are you seriously suggesting that there is an interpretation of the 4th Amendment that allows for prism? Even the author of the patriot act disagrees with you.


Manning had very little, if anything, to do with pointing out spying.

You mention her because her actions were in opposition to the USG, which seems popular to beat up on around here, but her leaks were about other things entirely.


> Manning had very little, if anything, to do with pointing out spying.

The information released by Manning, commonly called "Cablegate" [1] taught us about a lot of spying going on between nations.

[1] http://theweek.com/article/index/209830/wikileaks-cablegate-...


I've been mulling how a technology could be used to leverage generalized citizen support in terms of time and money into actual political change. It seems like broad uproar often dissipates without any real change. e.g. protests try to concentrate media attention, but that's really difficult and nothing really happens legislatively until some huge threshold of participation has been reached.

The technology to really focus the agitation might be a website that collects and displays key contextual data vs data of citizen promises of campaign money, voting intent, and/or time resources (for or against an issue).

The key contextual data would be something along the lines of summaries of issues & legislation, showings of each congressional position & vote history (is the rep generally for, against, undeclared vs an issue), key leverage positions (do they sit on comittees, could they be a swing vote between decided congress members?).

It's one thing to see general media coverage of some issue, and get a handful of calls/emails etc, but to see concrete votes and money stacking up on an issue that would be pledged to go into play in the next campaign - that seems like better leverage than protests and letter campaigns. It would be moving the Kickstarter model into a PAC framework.


My humble idea is to apply the crowd-funding concept to protest and civil disobedience. Only if the proposed action reaches a sufficient activation threshold of interest and commitment does it go forward.

The trick is getting people to stick to commitments, given the ease of clicking a button online. One way is gamification, with reputation scores and mobile location check-ins. Another is getting people to commit real money, which is forfeited without a check-in (or perhaps, donated to something vile like the Westboro Baptists!). But after collecting enough data, you can also start doing some number crunching to estimate real turnout, and use that for your threshold.

We need new forms of protest, and new tools of solidarity. I plan on building it if no one else gets to it first.


Honestly what would help the most would be renouncing your citizenship and becoming a citizen of a different country. They don't give a shit about your protests, your votes, or (lately) your rights. They will give a shit when the best programmers and engineers start an exodus. Or if some of the ultra wealthy decided to get out and bring their portions of the economy with them, that would wake up some congressmen.


Where would you go?


I have no idea, they are all bad apples, aren't they? So I'd be picking a lesser evil in protest of the US. Canada? Germany? I think HN user sneak moved there. Iceland?


Equador or Russia are nice places I hear...


Didn't Dick Cheney buy land in Uruguay? That might be a decent indicator.


Here's how, get up from your computer, exit your door, turn left or right, move to the next door, knock.

Have a conversation with the person that answers the door. Encourage them to do the same. When you have 20 people, get them all to go down to the office of your representatives, county, local, state, federal.


I imagine you'd get a free ride to a federal office if you talked to enough people.


>What else can we do?

"sit up, go to your windows, open them and stick your head out and yell - 'I'm as mad as hell and I'm not going to take this anymore!"

http://www.youtube.com/watch?v=EXqs02lNQMM


Congress should be following Bruce Schneier's advice, and appoint a special independent prosecutor with full powers to see everything that's happening within NSA, and to be able to take confessions from NSA employees, without them fearing repercussions. The NSA needs to be reined it, and it needs a full audit.

http://www.theatlantic.com/politics/archive/2013/09/the-only...


Why would congress want to do that? They approved all this and they don't seem interested at all in stopping it.


No, they didn't approve it.

Jim Sensenbrenner, Author of the PATRIOT Act, has himself said that the presidents' interpretation are an abuse of the law.

http://www.guardian.co.uk/commentisfree/2013/jun/09/abuse-pa...

If the guy who wrote the law says, "that is not what I meant" it is pretty clear that what congress voted for and what they got are two different things.


He's just one congressman and, author of the PATRIOT Act or not, he doesn't necessarily speak for all of Congress. And in any case he's just talking about one particular program (which, perhaps tellingly, is the only one there seems to be any serious debate in congress about).


> If the guy who wrote the law says, "that is not what I meant" it is pretty clear that what congress voted for and what they got are two different things.

And so when people warned him that the law he actually wrong might be used to create programs that actually happened, why didn't he reword the law to conform to what he says he meant?

Either way, doesn't matter one fig what Jim personally meant when he drafted the law; what does Congress think they passed is the different question.

Just like you shouldn't proofread your own writing, you shouldn't assume 535 legislators and a President came to the same meaning of your draft legislation as you had in mind when you drafted it.


Your proof-reading example doesn't fit this case. When you write something, the people who read it rarely also talk to you about it.

In congress, most bills are "lobbied" for by the authors - they go around talking to other members of congress to try to sell them on voting for it. In such a situation it absolutely matters what the author thinks the bill says because, if nothing else, it will have a large effect on how the bill is perceived when it is later read. In the specific case of the patriot act most members of congress did not even read it before voting on it. The only thing they had to go on is how it was presented by the author.

http://sunlightfoundation.com/blog/2009/03/02/congress-had-n...


Which is why it's so crazy there are still a few well known CISPA supporters around here.


Oh, to be so naive. You're assuming Congress opposes the actions of the NSA.

It's possible for a Member of Congress to express public outrage to appease the idiot mob, but believe something else entirely in private.


To be honest, Schneier's repeated insistence that the NSA has gone rogue from the rest of the government seems more than a little silly. Special prosecutors are for investigating illegal activity within the government, not just things Bruce Schneier doesn't like. The right way to change things would seem to be legislative. It's a lot less exciting, but more practical.


Thousands of unauthorized searches of US citizens without acknowledgement or apology is not illegal activity worthy of investigating?

We are going to have to differ here.


Organizations like EFF and ACLU are extremely impressive—they are one of the very few effective actors that actually seem to be able to strike blows at the current wave of authoritarian madness. I wish their German and European counterparts managed similar feats.


Who would these counterparts be?


You can find a great list of European digital rights groups on the EDRi membership page: http://www.edri.org/about/members -- EDRi itself, the European umbrella group, is in itself a really impressive organization, doing a huge amount of campaigning and advocacy in Brussels.

If you don't get to hear about their victories so much, it's partly because the US digital space is so well- (or maybe even over-) covered compared to similar battles going on elsewhere. But you can thank groups like this for stopping ACTA, software patents in Europe, as well as endless censorship proposals. They're also doing great work campaigning for the privacy rights of non US persons under the NSA revelations.

Here's how to donate to EDRi: http://www.edri.org/about

(Full disclosure: I work for EFF, which is an EDRi member)



In the Netherlands, there's Bits of Freedom for example (https://en.wikipedia.org/wiki/Bits_of_Freedom)


OpenMedia in Canada has been successful in changing government positions on Internet regulations(Unlimited Bandwidth).

https://openmedia.ca/


In Germany it is definitely CCC - Chaos Computer Club. Not in the sense of necessarily kicking off legal processes, but in the sense of expressing their expert opinions about security and privacy in public. For me as an IT person it is definitely a German institution.


The released information will be legal opinions:

"[O]rders and opinions of the FISC issued from January 1, 2004, to June 6, 2011, that contain a significant legal interpretation of the government’s authority or use of its authority under Section 215; and responsive “significant documents, procedures, or legal analyses incorporated into FISC opinions or orders and treated as binding by the Department of Justice or the National Security Agency."

This is actually a huge win, because it will show the legal theories underlying the NSA surveillance. This will help us figure out whether the surveillance is Constitutional, and also give insight into what sorts of surveillance is being conducted.


EFF continues to impress.



I have noticed that the ACLU has a tendency of making dubious choices when they run into a conflict between agendas (i.e. supporting corporate free speech in Citizens United and then opposing the same in Elaine Photography v. Willock. The EFF seems to have fewer qualms defending enumerated civil liberties online.

I have come to really appreciate the EFF. I won't donate to political candidates. I will donate to the EFF what I might have donated to political candidates....


> supporting corporate free speech in Citizens United and then opposing the same in Elaine Photography v. Willock

These two cases are completely different. One is about a non-profit being prohibited from speaking about a candidate before a primary election, and the other is about discrimination by a commercial service.


Its a tough case. On one hand its a commercial service, which always gets less speech protection. On the other hand photography is art.


Additionally suppose what was at issue was a slogan printed on every wedding photograph which was clearly discriminatory because it was also political. Something like, "One man. One woman. One holy marriage."

If a photographer does this, you must choose between political speech and non-discrimination because the political speech interferes with a right of a vulnerable group to enjoy their purchased goods. Otherwise where do you draw the line?

Or what do you do if a cake decorator insists on a similar slogan on the wedding cake and opposite-sex decorations? Surely this is both political speech and functional discrimination, right?

The EFF avoids this by having a narrower focus.


But I am not sure they are that different in ramifications.

In Citizens United, the ACLU did not take a line which said that for-profit or not-for-profit was relevant so I don't think you can rationalize the line they advocated in retrospect based on facts they argued were irrelevant.

There is a huge issue in anti-discrimination law (regarding the Elaine Photography case) regarding speech as discrimination, and I don't think you can waive away the issues so lightly. Certainly if photography is insufficiently expressive to warrant first amendment protection, I wonder why it is covered under copyright law.... I usually suggest supposing that instead of outright refusing service, if the wedding photographer placed a slogan and logo on every wedding photo along with terms of service that forbid the customer from ever removing it, and which was unfriendly to same-sex couples, (for example "One man. One woman. One holy marriage." emphasizing a religious dimension regarding marriage, and the belief that it is between one man and one woman) if this would be protected. It is clearly political speech in a commercial setting, and it is also clearly discriminatory (in the sense that it would effectively deny same-sex couples a right to enjoyment of their photographs).

If the ACLU is going to take a line that says that speech that is socially harmful is unprotected, maybe they should agree that restrictions on pornography should be up to the legislature if the legislature can show evidence of social harm, but of course they don't. They seem to hold that speech is good, especially political speech, unless it discriminates in ways they don't like, but that is hardly a robust defence of free speech there. The fundamental test of free speech is not whether the accepted viewpoints can be freely accepted, but quite frankly whether the Neonazis can march at Skokie or whether a cake decorator or photographer is going to be compelled to endorse a political message that he or she disagrees deeply with merely because it is a part of a commercial transaction. It is the unpopular views which must be protected.

So I don't think you can have perfect nondiscrimination in a commercial service without saying there is no free speech in the commercial sphere, which is where the case ends up on a collision course with Citizens United and why I wonder if the ACLU draws the line at speech by corporations that gets in the way of their other causes..... (BTW I have a relative, now deceased, who was kicked out of the ACLU for defending first amendment rights more than the ACLU was comfortable with in the 1950's-- he was defending the rights of Communists. They did apologize much later. I would point out that the ACLU has not been exactly a shining beacon of support for the 1st Amendment consistently and this is nothing new.)

Getting back to the EFF, I think they have an easier time because their focus is narrower and so they don't have the issues which get the ACLU (at least arguably correctly) labelled as inconsistent. For this reason, I think that of the two organizations, the EFF is by far the more needed one right now.


My favorite is when Sibel Edmonds approached them with a source that was saying the judges themselves are dirty and compromised (largely via the prism-esque programs) and the ACLU told her to basically not rock the boat and leave the judges alone...


My mother's uncle was kicked out of the ACLU in the 50's for defending the rights of Communists to peaceably assemble....


The EFF is a great thing, but let's look at what they won:

> [O]rders and opinions of the FISC issued from January 1, 2004, to June 6, 2011, that contain a significant legal interpretation of the government’s authority or use of its authority under Section 215; and responsive “significant documents, procedures, or legal analyses incorporated into FISC opinions or orders and treated as binding by the Department of Justice or the National Security Agency.”

My interpretation of that is that the results could just include a lot about: "As stated in (some law or regulation) case # (redacted) with regard to (redacted), (redacted) is fully (or not fully) within the rights of the government to do so."

So, I'm sure there will be some information there, but it will be about the laws and regulations surrounding what is possible, not about the actions being discussed. And, frankly I've known for years (who hasn't) that our government wants an excessive amount of information about us with the intent to keep us safe and/or dominate the world, so I don't need the EFF or our government to spend much time on this. The EFF should be figuring out what can be patented and what can be free, and our government should be doing what it can to boost our economy in a long-term fashion while ensuring our freedom and safety. If that involves an overreaching security group, so be it.


The laws and regulations revealed in this document will be important for targeted action on issues. Whether it was obvious to you that the government was harvesting data on its people for years, we cannot fight what we have no evidence about. With this release, we can actually pick out the laws that we have an issue with, and target them for debate.

> our government should be doing what it can to boost our economy in a long-term fashion while ensuring our freedom and safety. If that involves an overreaching security group, so be it.

If you trust the government with that much power I suppose this whole issue over surveillance seems quaint to you. Most people however would like to have some input over the powers wielded by their government. Something about a 'for the people, by the people' type thing.


These are great victories, actually, and the reason why goes back to the decision last term in Amnesty International vs, Clapper. The documents will almost certainly help bolster standing arguments to challenge these programs.

Don't sell these victories short. They are important ones.


So many people have accused Ed Snowden of treason, but it seems a lot less likely that this would have happened had he not had the balls to allude to the kinds of spying the federal government has been doing on the world.

Thanks Ed, and to all the awesome people at the EFF.


If he was actually a capital-t Traitor, the government would not have to release any relevant documents. This is to say that the government's arguments would persist in their strength towards maintaining secrecy, but the fact that these events are transpiring tells me that there is no actual legal support for a treason charge (pace Dianne Feinstein). Otherwise, the NSA itself would be acting against the interests of the nation by doing this, thus themselves be traitors.


Loud and assertive people get results in today's world. I applaud the EFF and their aggressive legal actions.


In related, but largely unimportant news, the federal government has created a tumblr account to post its surveillance-related propaganda:

http://icontherecord.tumblr.com/

and it's as ugly as anything you've ever seen come out of the federal government. I still can't believe that someone makes those graphics for a living, and still makes them look that bad.


I wonder if big chunks of it will be redacted....


I can’t help but think that whatever gets released will be utterly worthless. We’ll have to wait and see, but if government agencies don’t want to let the public in on what they’re doing, they usually find a way.



IANAL, wonder what does FIOA ruling entitles you to? can the government redact everything except one sentence? Just wondering.



My first thought, 100s of pages all in black.


I hope that what they release is actually something can be read in its entirety and not redacted so much you can't read it.

http://abcnews.go.com/m/blogEntry?id=19153896&ref=https%3A%2...


Supposing the Justice Department has committed a crime:

- What laws have been broken?

- What individuals broke those laws?

- What punishments are appropriate?

- Who decides who is guilty?

- Who gives out those sentences?

- Where will the criminals be held?

Additionally, is the President at liberty to override them?

If all else fails, would it be possible for the people to set up their own courts outside of the Justice Department for this purpose?


Violating the Constitution is not a criminal offense, for obvious reasons. When the FEC tried to enforce McCain Feingold in Citizens United, and parts of the law were declared unconstitutional, should the people at the FEC who engaged in the enforcement action have been criminally charged, tried, and punished?

Also, the federal courts aren't in the Justice Department, which is a division of the executive branch. They're part of the judiciary, which is a separate co-equal branch.


The NRA just recently sued the NSA for effectively creating a gun registry. There must be numerous similar laws that the NSA must know they are willfully violating, and are relying simply on getting away with it through not getting caught.


> should the people at the FEC who engaged in the enforcement action have been criminally charged, tried, and punished?

Ideally, yes! We would have far fewer "good Germans" for the internet to Godwin about.

Pragmatically, no, anyone other than a judge or lawyer cannot be expected to know what is constitutional or not.


We have a remedy for federal constitutional violations, which is a Bivens action for damages: http://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Age.... However, generally agents of the government are insulated from liability for Constitutional violations "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." See: http://en.wikipedia.org/wiki/Qualified_immunity.

With regard to NSA spying, there's nothing that's a clear violation of Constitutional law. The basic premise of the program, as we know it, collecting metadata and collecting calls between foreigners, is very likely Constitutionally sound based on existing precedent. If certain parts do turn out to be unconstitutional, it will be things like minimization procedures not being good enough at filtering out calls from U.S. citizens. And that's not a violation of "clearly established law." Coming down on the wrong side of an issue that judges and law professors can debate about at length isn't something that should give rise to Bivens liability.


I dunno. I would like people to be able to have a clear idea of what will get them in trouble before they get held accountable. Otherwise, we end up with unpopularity being a capital offence.

That Citizens United overturned previous precedents meant that the FEC employees could not have reasonably determined that their actions were in violation of the Constitution. Holding them accountable is to give the courts an ability to pass ex post facto legislation that even Congress is forbidden from doing. Such has no place in our system of laws.


And at least as importantly, people outside the judicial branch aren't legally empowered to determine the constitutionality of laws. Allowing the executive branch and its employees to treat laws as unconstitutional, all on their own, would open up a ridiculously large can of worms.


Maybe it would, but everyone punting the issue of "is it Constitutional?" to the judicial branch is also a violation of ethics. What if they mess up once?

The Legislature should not pass laws without sincerely believing they are Constitutional, and the Executive should not sign laws without believing they are Constitutional. Bush 43 violated this -- he thought McCain-Feingold was unconstitutional but punted the hard unpopular decision to Someone Else.


I would agree that the legislative and executive branches do have some responsibility to write and sign laws they actually believe are constitutional. Just punting that to the courts does seem like a cop out.

I was talking more about laws that have already been written and signed since we were talking about the actions of the FEC in the context of McCain-Feingold. Absent extreme cases (like death camps or something), I don't think the FEC or its employees would have any legal right (or responsibility) to decide for themselves that McCain-Feingold was unconstitutional. Giving them that power and responsibility is the can of worms I was talking about.


Or if it were allowed, they'd have to be criminally liable for not enforcing a constitutional law in addition to being criminally liable for enforcing an unconstitutional law so it would be twice as ridiculous to expect anyone to be capable of doing their jobs.


Sometimes things happen in America that do make me happy about how this country works.




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