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EFF in Court to Argue NSA Collection from Internet Backbone Is Unconstitutional (eff.org)
808 points by etr71115 on Dec 18, 2014 | hide | past | web | favorite | 169 comments

"Under the government's legal theory, it can copy virtually all Internet communications and then search them from top to bottom for specific "identifiers"—all without a warrant or individualized suspicion—as long as it does so quickly using only automated processes."

Love it. I hadn't thought of it like that before. Just because your search is fast doesn't mean it's not a search.

Also, just because there isn't a "human" that does the search manually, doesn't mean the human doesn't benefit from the search (exactly as if he would if he did the search himself).

And another thing: the 4th Amendment clearly talks about searches and seizures, so saying "we're only collecting it, but not searching it" shouldn't work as an excuse either.

EFF should also make a case for how searching into your online Facebook accounts, Google accounts, chat accounts and so on, is the "searching through your home without a warrant and fishing for crimes of the 21st century" - or something along those lines.

A third party may hold the data for you, but people think of those accounts as "theirs", and they have an expectation of privacy for them. If you keep something in a bank deposit box, does the bank own your deposit box and everything in it? Or is that "yours", and you expect nobody but you to access that? Right now, the government much prefers to go to these companies and just ask them for what you have in those accounts, because it's so much easier for them to do that, than ask you. But I feel they are skirting an important right humans should be having here.

The "physical" protections seem to be so much better than the "digital" protections in the US law right now. It's time to change that, and make it clear that digital protections should be at least as strong as the kind of protections we benefit from in the real world.

For example, it makes no sense for email to be considered under a much lower standard than real mail. They are both exactly the same type of communication. It's just the medium that's different, but that shouldn't matter at all.

> the 4th Amendment clearly talks about searches and seizures

Not to nitpick, but how exactly is making a copy of something a seizure?

The full text is:

"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."

A plain English interpretation would seem to make the NSA slurping illegal, but a legal interpretation could be completely different.

I think an important point here is that at the time the Bill of Rights was written, the language you quoted would protect you from having your private information copied. Because without photographs, video, or digital information, you had to actually physically "search" or "seize" a document in order to make a copy of it. There would be no way of copying a document without first getting access to it which, unless the government had a specific warrant, would have been prohibited by the 4th amendment.

Therein lies the problem. The government gets to approach the issue from "It's not explicitly in the Constitution, therefore we can do anything we want," when it is doubtful that the spirit of the document intended peoples digital communications to be handled differently than their physical communication.

IANAL, but here's my interpretation. There are two concerns here:

(1) 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 (2) 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.

(1) being the protection, and (2) mentioning the loophole of warrants and protections on that as well. Searching digital information without a warrant violates (1). The legal way to do it is via warrants, and limitations on warrants are prescribed in (2).

There is a level of interpretation required here. The 4th amendment wasn't written in an age where it was conceivable that information could be copied for free or intercepted without taking something from a carrier. What's important is the intent of the protections. NSA has decided to interpret these wordings in a way which lets them intercept and copy communications, and it's the job of the courts to interpret the constitution and tell them that they aren't allowed to do that.

This is not true at all. Copying papers and documents was very common and expected in that time, and it has been since the dawn of writing. The 4th amendment is clearly meant to protect against this:

"The right of the people to be secure in their [...] papers [...] against unreasonable searches and seizures, shall not be violated"

Why should the amendment protect papers if it is only the physical page that is protected and not the actual information?

It is more of a question of what is reasonable -- does a person know who has access to their information? Do they put their information out there with the understanding that it isn't private? The very basic idea here is that people should know what rights and privacies they have, and violating the conditions where they can reasonably expect privacy should be illegal.

My HTML Docs are my papers!

Surely even back in the technological dark ages of the 1700's it was possible for agents to make observations and report on "metadata"? After all, what about Paul Revere? So, I don't easily buy the flippant "times have changed" hand waiving.

Paul Revere's observation of events happening and reporting back in his own words isn't a great analogy. A better one would be to intercept all stagecoaches at their midway points across the entire United States, and manually copy verbatim the letters they carry in case one day we want to know what Jack said to Joe.

Yes, the passing of "information" is not new. But I believe the intercepting of mail, copying and then letting the original letter through to its destination without a warrant is illegal. (Isn't it?)

A much better analogy would be for the postmaster to be noting the sender and recipient of every letter that came through his station in a log that was then passed along to King George's agents in the colonies, allowing them to draw whatever inference they might like — while somehow also having a copy of every letter to hand for further perusal in the event any of the corresponding parties were deemed "suspicious."

I'm no scholar of Revolutionary era America, but I'm pretty sure that if shit of that sort were going down, it would have gotten specific mention in the Declaration.

I'm not sure precisely sure what shit you're talking about going down, but the Crown certainly brought a lot of shit down. Consequently the Constitution certainly respects a Freedom of Assembly. And yet at the same time they doesn't go so far as to forbid the government from tracking and monitoring assembly.

If you associate with someone that runs afoul of the law, why is it unreasonable to consider you? You seem to think the only possible outcome of actually examining your shit is incrimination. It cuts both ways, you know. You could be ruled out.

The same way making a copy of something is theft.

Interesting; when I make a copy of a song file I do not own, it's stealing. When the gov't makes a copy of my search records, it's not?

That's the hypocrisy I was getting at, yeah.

If the government opened your mail and made a copy while it was in the possession of the USPS would that count as seizure? search? What if they automated the process?

Both search (they looked at it) and seizure (they took/copied the information). And as I already said, whether it's manual or automated should be irrelevant, if the end result is the same (authorities taking that data without a warrant to fish for crimes - which is what the selectors and alerts do anyway).

Wouldn't you need to take something first before copying it?

If by "take" you mean deny or restrict access and use by the "owner" then, no, of course not. You don't need exclusive access to copy something (or record information about it).

For example, taking a picture of the Washington Monument isn't remotely anything that comes to mind when I consider what "seizing the Washington Monument" would entail.

Since the principles of photography post-dated the Constitution, I'd say it's a fair assumption that in its time the expectation was that exclusive access would be needed to (laboriously) copy something.

But it's kind of pedantic to argue over a single word.

The pertinent question is 'Do the views espoused by the Constitution as a whole (and subsequent case law) offer an opinion on the rightness of mass copying-without-exclusive access?'

Which is pretty thorny indeed. IANAL, but from what I've read it seems as though the Supreme Court is steadily trending more towards supporting an inherent right to privacy as a buttress against decisions that would otherwise feel wrong.

This is actually a great point. For all those folks who say violating copyright is not "stealing", I guess you could use the same argument that the gov't copying private records is not "seizing".

Not if I use a camera to take a picture of it, from which I can look at it to make a copy.

> seizure: the action of capturing someone or something using force

They first have to capture the data before copying. Fits the definition, in my opinion

You don't have to capture anything to make observations or replicas. It just has to be observable. Which gets back to "search". The nit I'm picking is what exactly the post finds special about "searches and seizures" vs "searches"

In this action, AT&T was compelled to fork their traffic to an NSA monitoring room. This was a step that added overhead that, I would think, exceeded mere observation.

It's not like they posted a man on a hill to watch the traffic go by (or a pair of blimps in MD...) They required AT&T's coöperation to proceed here. Like putting a checkpoint on the road.

I think I understand what you're saying, you're saying that a search automatically implies a "seizure" as well, right? Unfortunately, I don't think the US gov thinks the same way. Right now they are trying to make a clear distinction between "collecting" and "searching". I was just trying to point out that even if those terms were separated, the 4th amendment specifically refers to collecting (seizing) the data as well. So they can't get away with the mass collection just by saying collection != searching.

No, I'm saying that "seizure" means taking something away from someone. Duplicating something doesn't take anything away from anyone.

You could get into the old argument about IP theft about say copying vs stealing a movie. But even then, creating the concept of IP monopoly was explicitly granted by the Constitution, it doesn't arise from the 4th Amendment. If copying something is a "seizure" then why does the copyright clause even exist?

My interpretation of "search and seizure" is the situation that: you keep and possess private stuff that you secure at a location that you control, the government shows up at your place, takes all of your stuff back to their warehouse to look through at their leisure. The government has your papers and you no longer do.

That seems fundamentally and qualitatively different from what's happening when you choose to use someone else's telecommunications equipment. Now, instead of hanging on to your private secrets, you've decided to go ahead and scroll them onto postcards and toss them into the mail (for safe keeping? really?). And then after sending them out into the World, you're shocked that your secrets somehow got out of your bag! It defies common sense.

Edit: I guess what I'm saying is, if you write something on a postcard and drop it in the mail, that behavior clearly indicates that you do not consider the information you put on the postcard to be private.

Your argument is completely disingenuous - same as the people who are nitpicking and torturing the language in the constitution in order to get what they want.

When people are using the internet, in some contexts there is a certain expectation of privacy, and in others, there is none. If I upload pictures to a public Facebook profile or a hosting website (such as imgur), I certainly don't expect that to be private. It's there and available for everyone to see/observe/collect/record/download/analyze/whatever. However, if I connect to a search provider using HTTPS, and the search provider vehemently claims they do not hand my data over to the government, I certainly don't expect the said provider to hand my data over to the government, or the government to try to subvert and crack the encryption between me and the website.

I think it's high time people stop trying to get what's unfair and immoral by trying to subvert the language. While you may eventually get what you want, it is corrupt and evil. No amount of legal "reinterpreting" changes that.

It seems you make a rather large and unsubstantiated assumption that they are breaking encryption before obtaining authority to search the private content. The whole point of encryption is to remove trust from the communication channel. Encryption that fundamentally relies on messages being ephemeral is a fraud/farce/snake oil.

I understand the individual words in your post but have no idea what you're actually trying to say. Have you thought about running for congress?

How can you observe data without loading it into memory first?

How can you make a phone call or send an email without stuffing it into someone else's memory?

If you haven't already go to this link (Probably need to be logged into Amazon):


And select EFF as your Smile charity. THEN get the browser extension to automatically redirect you to the Smile link:

Chrome: https://chrome.google.com/webstore/detail/smile-always/jgpmh...

Firefox: https://addons.mozilla.org/en-US/firefox/addon/amazonsmilere...

EDIT: I only use the chrome extension, if someone has a better FF extension just let me know and I'll change the link, that was the first one I found.

To give $50 to a charity through Amazon Smile, you'd have to spend $10K. Still pretty nice of Amazon I guess, but if you'd rather not deal with the extra Amazon Smile extensions and junk, most people could just do a $5 or $10 to the EFF and be done.

I saw something really good on LessWrong the other day. There's a link you can follow so that 5% (10x more than the 0.5% from Smile) gets donated to charity. I think it uses the affiliate link system, but I haven't really looked into it. This LW post explains it:


It's not the EFF, but if you believe in GiveWell, it's a fantastic way to make a sizable (and mostly passive) positive impact.

And the best part: It's stackable with Smile. Presumably, EFF could set the same thing up. (I believe Scott Alexander of SlateStarCodex.com has one set up to support his site as well, so it can't be that hard or restrictive)

I know it's not a magic bullet but it's something. That said, I strongly suggest donating to the EFF directly as well (or better yet on a repeating schedule as it lets them plan better).

it's a minor URL change, not some major habit change.

For those who prefer the Free Sotfware Fundation, it is also available on the list.

I use that FF extension and have no complaints. The best thing I can say about it is that I never notice it, but it always does seem to put me on smile.

"Read and change all your data on all websites". No thanks to the Chrome extension, but EFF is now my charity on Amazon Smile at least.

Unfortunately, that's the permission level required to allow rerouting (changing the url of amazon.com/.../foo => smile.amazon.com/.../foo)

Much like Android, Chrome does not have very fine-grained permissions. On the plus side, it's pretty much just a zip file so it's easy to open it up and see what it's actually doing.

This is it. This is the tipping point. I'm donating money to the EFF.

Great! Be sure to do the recurring donation option. I donate $10 per month automatically, which is barely noticeable.

I wish $10/month was barely noticeable for me! But I've send them $25, which I'm sure they will put to good use!

I was going to do 10 recurring but just hit 25 to help those who can't do the 10 :)

That was exactly my reasoning for Wikipedia's donation request: "if everyone reading this donated $3, we'd be done." "OK, well, I'll pay for 10 people then".

Awesome! This is a good cause, I'll try to give some more money when I can afford it!

If you can't, I'll send a recurring $20/month starting on Friday. Ping me on Twitter if I forget :)


I can't either, and neither can my wife or any of our 6 kids. Please send 80.

Right--this was a good reminder to make my annual donation. And I'll be getting a nice T-shirt too.

You can easily set up a monthly donation as well, so you don't have to remember :) That's what I did, and I still got the T-shirt.

The title seems a little misleading

>Jewel was filed in 2008 on behalf of San Francisco Bay Area resident Carolyn Jewel and other AT&T customers.

This isn't a new lawsuit, it has just taken forever to even get to this point. The main focus of this case isn't from the Snowden documents but the Snowden documents did open up the case to actually go forward without State Secrets censorship.

The Fourth only protects 330 million out of 7 billion people.

However, if we don't help US citizen for their democracy, we'll have no weight for ours.

Interesting that the "Bill of Rights" wouldn't apply universally. We're all human.

AFAIK the US Constitution is just a contract put forth by the US citizens limiting the power of the US Govt. By agreeing to obey the constitution, you become a US citizen and vice-versa. Although the principles apply universally, they have a legal basis to be enforced (by the US judiciary) only in the US.

Technically, it was a contract put forth by some citizens of the several states in confederation, to create a government with enumerated powers. That is, it both enabled and limited at the same time.

In a strictly technical sense, the US Army is prohibited from disarming citizens of Iraq in their own country, for instance. But they might just do it anyway. Because said foreigners would not be able to petition for relief anywhere else but in a US federal courts, and there are currently several barriers to them initiating an action there, which largely do not exist for citizens in the US, that foreigner is usually unable to exercise those rights using strictly peaceful means.

In short, it's far easier to form your own militia and kill any agents of the US that you find in your own country. That seems like bad policy all the way around. It would be much better if the US just obeyed its own laws anywhere it goes in the world. It might even be prudent to set up a 12th federal circuit, with at least one district in each country with which the US has an extradition treaty, to support cases with jurisdiction established by Article III, Section 2, Paragraph 1: "and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." Such courts would be authorized by the Constitution, but as far as I am aware, none exist.

If there were a foreign circuit, it is likely that Guantanamo Bay detainees could file Habeas Corpus motions in it. Foreign banks could fight to restore their privacy safeguards while still serving US customers. Private military contractors might face civil suits from the families of people randomly gunned down in the streets of their own cities. If the US had to obey its own laws everywhere around the world, it would certainly devolve into pure chaos~

Interestingly enough, we did (kind of) try this once. There used to be a United States Court for China in the first half of the 1900s. This court exercised extraterritorial jurisdiction over U.S. citizens living in China. Appeals were heard in the 9th Circuit.

What I find most intriguing (or appalling) is that a District Court judge in the Western District of Washington (State) held in 1942 that a U.S. citizen who was tried, convicted, and sentenced in the U.S. Court for China was not entitled to Constitutional rights. Judge Black wrote in Casement v. Squier[0] that Petitioner Leroy Lomax, then-incarcerated on McNeil Island was "mistaken in his contention that the Constitution of the United States guaranteed him a trial thousands of miles beyond the boundaries of the United States." Lomax said that his confinement was unconstitutional because he had been denied a trial by jury (one of Americans, versus the bench trial he received).

Judge Black quoted the U.S. Supreme Court decision In re Ross[1], where Justice Field wrote "[t]he Constitution can have no operation in another country." Thus, the Petitioner in Casement was denied habeus corpus.

I've not studied law, so I'd like to hope that this was "clarified" or overturned, though I don't hold much hope.

0 - http://www.leagle.com/decision/194234246FSupp296_1271

1 - https://supreme.justia.com/cases/federal/us/140/453/case.htm...

Actually, the Constitution says

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

By my plain, non-lawyer reading of the law, Judge Black was either misinformed or lying about the law. It hardly matters if you are beyond the boundaries of the US, if the US comes to you to claim jurisdiction over you.

It certainly is appalling. The Constitution must have operation over agents of the federation wherever they may go, even if not over citizens or other people, otherwise you end up with malicious workarounds like extraordinary rendition and Guantanamo Bay prison.

And while Oliver Twist is non legal canon, when the law is an ass, we should feel free to say so. The argument from In re Ross seemed very disingenuous, in that it claimed that a court established in a foreign country using the Constitution as the basis for its jurisdiction was then no longer bound by it thereafter. It is obvious to me, as a layman, that both Black and Field were seeking expedience rather than justice. I imagine that anyone seeking to overturn the precedent set by the Field opinion could simply petition as an expatriate filing income taxes, and claim it as sole argument against the 16th Amendment having operation in another country.

Wouldn't it be lovely if we considered citizens of other countries to be (sorry to abuse the term) "first class citizens" w.r.t. what rules we apply to them / how we govern or limit ourselves when surveilling them?

We could hold ourselves to a higher standard, but we take the (without a doubt efficacious, but) low road.

Possibly impractical nowadays from a national security standpoint in the "you can't get there from here" sense, but lovely nonetheless.

If we did that, they would also be governed by things like federal drug law and tax law. It does not seem desirable to apply the same rules both to citizens and non-citizens.

Rights are different from laws. There is no 'right to be taxed', but there are rights to privacy. Alleging that basic rights do exist but should only apply to human beings who live inside the borders of your own country is just a fundamentally bigoted position.

It's essentially admitting that certain lines should not be crossed in allowing people a decent and dignified existence, but then proclaiming only 5% of the world deserves that dignity due solely to the accident of where they're born. You might as well be separating the world into 'people who matter' and 'people who don't', which, as we've learned through history both ancient and recent, provides a great basis for activities like torture and genocide. Not exactly what you'd hope for from an enlightened democracy.

This is exactly what we need: worldwide and on a large scale. Bundled with media support, grass roots call for action campaigns and much more.

Let them know we won't accept the status quo.

Donating money to EFF. Finally. I've been waiting so long :)

I'd love for this to actually make a difference, but I doubt it. The NSA has redefined the language around wiretapping just as the military has redefined the language around war and the CIA has redefined the language around torture. I'm sure everything that has happened was legal.

The question is: if all of these crimes are legal and those with the power to ban them have no interest in doing so, what's left? And how long will it be until that happens?

If I send a copy of a music record by email and the NSA keeps a copy of it, can they be sued for copyright infringement ?

I had that idea a while ago. Write a short article, copyright it, and then email it to a bunch of terrorists to make sure the NSA pick it up. Because we really have two different paradigms involved here; the big copyright trade associations claim that the law is broken when you copy something, whereas the US government claims the law is broken only when/if they inspect the copied material.


So if I download copyrighted material but never listen to it, I'm not infringing?

Obviously not, because you haven't collected it yet!

EFF joins the ranks of ACLU in my book. Donated.

Even if the EFF win the NSA will carry on regardless. Our laws have been diminished to the point where the powerful do not have to obey.

The courts do have power in the federal government. If they say that some law is unlawful, then it is not able to be enforced as a law. The courts have that power since the constitution gives it to them. I think that you need to look at constitutional law a little more. The Executive branch does not have more power then the courts or the Congress. By the constitution.

What Internet Backbone is that? The one that closed in 1995?

https://en.wikipedia.org/wiki/Internet_backbone A decentralized, redundant network among many companies.

Ok, it's in Wikipedia! But, backbone's are normally singular and control a single organism. I think that the metaphore held fine until 1995, but that which has come since then does not look, act or smell like a backbone to me...

(see what I did there with the metaphore thing :))

I don't think the EFF is going to win this one. It's not because of some government conspiracy, or the odds being stacked against them or anything like that, but rather because their argument is flawed. As detailed elsewhere on the EFF's site[1], the core of their case centers around NSA's Section 702 Upstream collection. They have more recently hinged their argument on the Privacy and Civil Liberty Oversight Board report on Section 702[2], but the case predates it going back as far as Mark Klein's Room 641A disclosure. The identifiers that the EFF talks about are described in the report as follows:

As noted above, however, all upstream collection — of which “about” collection is a subset — is “selector-based, i.e., based on . . . things like phone numbers or emails.” Just as in PRISM collection, a selector used as a basis for upstream collection “is not a ‘keyword’ or particular term (e.g., ‘nuclear’ or ‘bomb’) but must be a specific communications identifier (e.g., email address).” In other words, the government’s collection devices are not searching for references to particular topics or ideas, but only for references to specific communications selectors used by people who have been targeted under Section 702.

In other words, the NSA is searching for the communications of specific people - it's targeted collection. The EFF itself even concedes that they are filtering out wholly domestic communications[3]. Instead of questioning the specific procedures for targeting these people, the likelihood that they may fail and collect an innocent bystander's communications, the procedures dealing with incidental or accidental collection, etc., they are instead taking the stance that the filtering itself is illegal because a packet filter needs to see a packet before determining whether or not it matches the specific communication. As an analogy, if where to pull up my terminal and run:

  $ seq 1 3 | grep -v 2 | grep 3 > out.txt
... the government is arguing that the collection is the contents of out.txt ("3") and furthermore, they put an extra measure in place to ensure that the number 2 (i.e. purely domestic communications) is never collected. The EFF is arguing that 1, 2 and 3 are all collected because each one exists in grep's buffer for a millisecond before it is discarded - it doesn't matter that it's never seen by a human, entered into a database, written to disk or transmitted elsewhere.

I think I see why the EFF is making that argument: in Clapper v. Amnesty International it was ruled that the plaintiff didn't have standing because they couldn't show that their specific communications had been collected. Jewel v. NSA would likely have the same issue, so to get around it the EFF is instead arguing that the very fact that the NSA is conducting any sort of packet filtering itself constitutes a search and seizure, regardless what safeguards are put in place or whether the filtering is targeted. I think they're grasping for straws with this one - I'd be really surprised if they win. If I were in their place, I'd probably FOIA the hell out of the 702 procedures and look for loopholes instead.

[1] https://www.eff.org/press/releases/eff-asks-judge-rule-nsa-i...

[2] http://www.pclob.gov/Library/702-Report-2.pdf

[3] https://www.eff.org/files/2014/07/24/backbone-3c-color.jpg


FYI, these proceedings are open to the public. I've gone to two of them before to support the EFF. You just wear a suit and sit in the audience quietly. When the arguments (which are fascinating, by the way) are over everyone gets up at the same time and leaves. Hopefully, the judges notice how much public support is there for the EFF.

If you are in the bay area, I highly encourage you to go (this one is very near the Oakland 12th St BART). You are watching history in the making.

How do the judges know that you are supporting the EFF and not the other way around? Does it have to be a suit or could you wear a t-shirt to indicate which side you are on?

In the deeply twisted world of lawyers, anyone not wearing business clothes isn't a real person.

Wearing a suit is a sign of respect to the court, and there's a rational justification for the convention.

Courts, you see, and federal courts in particular, don't really have any power. They have a few marshals, but by and large they're not directly in charge of the people with the guns. Courts have power only because everyone agrees to abide by their authority. Wearing a suit, standing when a judge enters the room, addressing the judge as "your Honor," is all part of a ritual where we acknowledge the solemnity of the proceeding and collectively reinforce the binding authority of the court and its judgments. The details of the ritual are, of course, arbitrary. What matters is that everyone partakes in the ritual.

The practical significance is this: if the judge rules against the government in this case, the executive branch will have a choice to follow the order or not. It is indeed a choice--the executive branch has all the guns, after all. The price of ignoring the order is a loss of moral authority and public support. The purpose of the ritual surrounding the proceedings is to make this expensive. You want people to be offended and feel violated that anyone would ignore authority that they collectively sanctioned by engaging in this ritual.

What about the other costs of the ritual? That is, the implicit disenfranchisement of those that cannot afford, whether literally, or as a result of differing social norms, to abide by these arbitrary practices. Given what the court system stands for, namely equality and fairness, how can one reconcile the preservationist and exclusionary nature of these standards with those ideals?

Frankly speaking, I don't think that a whole generation (or several) of people wearing t-shirts in court is going to do much to change the judiciary's ability to reign in the executive. If current practice is any indication, the executive will flout judicial decisions just as it already does with legislative ones: behind closed doors and with "creative" interpretations of said decisions.

I've been to trials and also worked as a runner for a law firm. And I've never worn anything but business casual in a court. The judges I've seen only get upset with the audience talking, handing things to attorneys during session, or other disruptions.

Keep in mind that in court rooms, people are sometimes literally facing life or death. Or they're facing bankruptcy or instant wealth. It's a tense situation and the judge is the main one responsible to keep order.

I definitely think that those are good things: keeping order in a physical space when tensions are high and people's lives and livelihoods are at stake is no small task. But, I do believe that respect for tradition for the sake preserving this specter of a sort of "national respect" for the judiciary is misguided, possibly bordering on fetishization. I'd rather see that energy and same devotion used to make courts a truly public element of government that an average person can understand. Tangibly, I'd like to see people not dread going to jury duty and/or have a good understanding of what to expect before they go. I think that discarding some of the "courtroom mystique" would go a long way towards that.

People don't dread going to jury duty because of any sort of dress code. I wore jeans and a t-shirt to jury duty last time I was called.

They dread going to jury duty because they'd rather spend their time doing something that contributes to their own personal well being (doing a job, raising a family, having fun).

I like jury duty. It's like being an elected representative, but without a tiring campaign and several years of work. It's just a one day slice :)

Aside from Andrew Jackson and the trail of tears, do you know of any other examples of the federal executive branch not following judicial order?

A few: http://www.huffingtonpost.com/lyle-denniston/gingrich-suprem.... A few more times, e.g. with Japanese internment, the court has capitulated and decided in a way that aligned with what was going to happen anyway. Also: http://en.wikipedia.org/wiki/The_switch_in_time_that_saved_n....

I can't shake the thought that all of these came about because of the executive's direct lack of respect for the judiciary, not because of any perception by any executive office that the general population lacks respect for the court. The latter seems to be the takeaway point with these pieces of evidence for past transgressions. I really doubt that more instances of FDR-like behavior will or won't come about because of slight shifts in courtroom decorum.

To make a value judgement here: I think it's a perfectly reasonable thing if courts became more accessible to the general population. Whether it be through relaxed attire, language, or physical layouts -- discarding some of the cultural detritus of rituals of years past wouldn't bring the court system to it's knees because of a lack of respect. Rather, it would show the general population that judicial on-goings aren't some esoteric world that they need to think sacred. (Because really, why should they? The courts are for and by the people.) Accessibility would in turn bring understanding, and understanding would turn the current atmosphere of detachment (re: general public from the courts) into a more meaningful respect.

You start off saying that the general population's respect for the court doesn't matter, but then you end up arguing that changing the rules of courtroom decorum will actually increase the respect for the court from the populace and that would be a good thing.

So does it matter or not?

My opinion is that the general population's respect for the court (in the form of whether or not t-shirts are appropriate courtroom attire) has no bearing on whether or not the executive adheres to judicial decisions. On the contrary, I think the attitude that everyone needs to wear suits in court because "respect the court, or the executive won't" is detrimental to those already marginalized: the poor and less educated. They are probably less likely to recognize the social signalling that the formal attire represents.

My secondary point, apologies for the lack of clarity, is that relaxing courtroom procedures and the mystique surrounding them would allow for greater transparency. Greater transparency and a more approachable set of procedures would allow for greater understanding throughout the general population. A greater understanding of our legal system (my second definition of respect), minus the fluff surrounding it (language, attire, etc.), would be a good thing in my book.

I understand that there is inherent complexity in matters of finesse, whether it be law, engineering, or programming, but I don't think we need to actively propagate stifling behaviors like suggesting that suits (and the equivalent for women) must be worn at all times, forever, in the courtroom.

I don't really buy the point about social signaling. You don't wear a suit to court for the same reason you wear one to a board meeting--you do it for the same reason you wear one to a funeral.

If you want more people to understand legal procedure, you should suggest they read The Illustrated Guide to the Law, a webcomic by a defense attorney.

- Exclusionary Rule: http://lawcomic.net/guide/?p=1585

There are actually a lot of examples. Presidential privilege is a common example where there is some but not total compliance.

The Civil War.

Suit jacket, smart dark jeans and an EFF t-shirt then :)

It is not just lawyers. Pick any two people at random and have them choose who they would trust, Stallman or some guy in a suit.

In a shocking turn of events, presentation choices play an important role in first impressions :)

...which is why, even though it's stupid, it makes a difference in your favor if you dress up to go to traffic court. Sometimes they care, sometimes they don't, but it's not usually worth the extra risk if you already own a suit, or even a dress shirt and khakis.

True but on the flipside, me personally I trust someone that isn't in a suit (maybe not as hacker look like Stallman) more than someone in a suit.

I think it is a generational thing, dressing up to me is mostly getting into your sheep B.S. clothing to make whatever you are doing look better. I have also been working in the game industry where suits usually mean you aren't a good fit or it is someone to probably not trust i.e. publisher/salesman.

I think for court you should put on your best, but in most cases I distrust the suit more than I trust it.

I am not so sure it's generational as I assume you are on the younger side... Forty-five here and I don't trust people in suits to much (or really religious people).

Sometimes I'd like to rebel a bit and dress in a suit to a tech meet up where everyone else is in T-shirts and shorts. :)

Which is ironic considering how ultra casual tech dress codes are in the Bay Area.

The casual dress code is still a dress code - tech is generally biased against those who dress up, which is not any different from those who stick to more traditional formal dress codes except that casual is cheaper to shop for, is more comfortable, and easier to maintain. That doesn't make anyone who adheres to one or the other dress code any better.

Ugh yes. I almost always dress up from tshirts+jeans due to a myriad of reasons (for one, tshirts aren't usually designed to fit boobs on the bigger side), and I've gotten negative comments as a result. I don't dress like a geek so I must be a wife/gf/non-tech person (one guy at defcon called me a slut...), I dressed like everyone else, I must be sucking up and trying to get "in"... can't win.

If it helps any, dressing up in suits as a stereotypical white nerd doesn't help either.

I generally just like to dress up as it makes me get in the zone of "work time" better. But I never have gotten called a slut i'll admit, but I do often get comments of "must have an interview today huh" and so on. I find the whole geek/nerd culture around clothes annoying as shit. For a group that professes to not care about the external person, we sure as shit do judge people on their dress.

That said, keep dressing up, it impresses the non nerds and interestingly allows you to drive conversations with them easier.

Also I got a comment today from a barista "you always wear the coolest sweaters" and then I explained where I get them. I dunno its fun finding cool clothes and I'm willing to share in my findings. So I think I will stick with getting my fashion insulted by nerds, and you should too.

Tell the jerks that call you not a geek to explain how to make a one instruction set computer off basic logic principles. Or whatever your speciality is really, if they flounder just go never judge a book by its cover. Then walk away and sashay it up is how I would handle those situations. Good luck!

Tell the jerks that call you not a geek to explain how to make a one instruction set computer off basic logic principles. Or whatever your speciality is really, if they flounder just go never judge a book by its cover. Then walk away and sashay it up is how I would handle those situations. Good luck!

In my experience - as a bystander, since I'm a man - that'd be a good way to provoke insults and (if the jerk knows you) defamation behind your back.

Quite possibly, however I have low tolerance for those kind of jerks in real life. I've long since given up caring what they think or say behind my back or in front of it.

WTF? Woman should be more worried about what is said behind their backs then men? Are you saying when someone is a jerk to you to just take it? Being a man, you know that's not how we roll so why should a woman do anything different?

I'm saying that women are much more likely to have anything said behind their backs, and of what is said being taken seriously by others. I never said you should "just take it", you're assuming stuff I didn't write.

And just because I'm a man that doesn't mean I "roll" in a certain way.

I have been in the workforce a long time and never noticed people talk more about woman behind their backs then men. Source on some research in that area?

So you are saying woman should be more concerned about their "reputation" then men? Sounds a little sexist to me... Hint, if you are going to give advice maybe you shouldn't involve gender when it is irrelevant.

No, I'm not saying women should be more concerned. I also never gave any advice. I'm not sure why you keep trying to put words in my mouth. I meant exactly what I said, and nothing else.

>In my experience - as a bystander, since I'm a man - that'd be a good way to provoke insults and (if the jerk knows you) defamation behind your back.

You were not saying (as a man) you don't think it would be wise to confront someone who was rude to their face because they may talk behind her back? Sounds like advice... Oh, wait! It was just a warning!

Thanks for playing dude...

Also a man. I don't give two figs what's said behind my back though.

??? I was referring to the original comment which was about things said to one's face. It was icebraining that was concerned about things said behind one's back.

> That doesn't make anyone who adheres to one or the other dress code any better.

Ironically, that is exactly what tech was advocating for in the first place.

Ironically, vis-a-vis this thread, my non-court, non-client in the office legal uniform is slacks or jeans and a flannel shirt.[1] It's as comfortable as you can get in winter, and I get no shit from anyone about it.

[1] My Oregonian wife is slowly turning me into a lumberjack.

It's not a dress code. It's just not adhering to another dress code. There's a difference. You don't just wear a suit RANDOMLY. Any random thing you wear is casual. Literally millions of different styles are casual, and there's like maybe five different styles of suits?

You're wrong.

When I go out, I personally feel more comfortable in good looking, "business-casual" sort of clothes. That's generally a brown vest, some black pants and slightly fancy shirt, all of which I got for a total of 20 quid at a charity shop back in the UK. And yet, that set of clothes which probably costs less as a whole than the gaming shirt my buddy was wearing at the time got me an off-hand remark of "dressing up too fancy for a geek".

I'm very much a geek at heart and the guy knew it... but don't mistake the shirt-and-jeans culture for a "wear what you like" culture. It's a "wear what I like" culture, and the "what I like" is shirt and jeans.

Casual dress code does not include a clown costume, so it's far more constrained than your suggesting.

As to suits it's one of those fractal breakdowns with a lot of varity if you get specific enough. EX: You could say fat vs skinny ties, but the there is a wide range of patterns wich fit a wide range of shirt colors. Not just Red tie on white shirt.

Personally I like semi formal dress codes simply because they have a default and require minimal thought. Where casual has a lot of 'hidden' rules.

Actually, in the valley casual dress for men tends to consist of dark blue jeans, button down shirt, dress shoes, and blazer. It's as monotonous as tshirts/jeans/tennis shoes

Really? Wear a suit to your next startup interview and see what the negative reaction is. I worked at a company where anything other than jeans was frowned upon. You know what, in August I'd rather not wear jeans. Dress pants are way more comfortable (hint, they breath better).

A few years ago I was working for a west coast tech company (not bay area) and was regularly wearing long-sleeve button-down shirts (without a tie) with khaki pants.

A few coworkers said something to me, but I didn't think anything of it because (from my perspective) they didn't care about their own appearance. Then my boss told me that the company actually didn't have a dress code and I didn't need to dress like that; I assured him that I was dressed that way because I liked dressing that way. Then HR talked with me. That's when I finally took the hint.

The dress codes that most people are familiar with place a lower-bound on how you can dress. "No shoes, no shirt, no service", or "You're a groomsman, you can't show up to the wedding in a t-shirt you lunatic". The tech industry has a dress code, but it places an upper-bound on how you can dress.

My humble conspiracy theory? Upper-bound dress codes encourage social stratification. This is desired by people who are in power, but are surrounded by very clever and moderately well paid people (developers). Imagine if software developers stopped thinking of themselves as "others" and started assuming the role of respected professionals with all the social standing a respected professional typically gets.

I've been on teams where newcomers have shown up in suits, and we politely told them "We don't wear suits here." They started showing up in jeans.

I felt a little bad, but honestly they fit in better after that.

Usually when you're new and don't already know the dress code, you show up 1 step above what you guess would be acceptable. Typically it's better to be over-dressed for a day or two rather than be under-dressed (fear or looking unprofessional/not serious).

Stallman, duh. He looks like a real hacker. I'd never trust a guy in a suit to code anything.

Looking like a real hacker !== really hacking

The government only has lawyers, so pretty much everyone in the audience (save for the occasional law student) is by default in support of the EFF. All we need you to do is show up 30 minutes before, wear a suit, be quiet, and watch.

The EFF should sell ties.

Thanks for the suggestion, I'll pass it along to our membership director.

You sure there's going to be any space left? This is going to be a pretty iconic case.

I went to the last one in Oakland and there was about 20-30 people who came to watch. However, at another case in SF, it was at capacity and they had to set up a live feed to the cafeteria for the overflow. Hopefully, that happens this time, too :)

Hopefully live streams will also pop up :)

Protest outside otherwise?

Make sure to get a permit for that. :'(


Because there are often permit requirements for protesting in public places.

This is a great action. Please keep doing it! If i would live anywhere near to that I would attend it too. Greetings from Germany and keep on!

I am a supporter of the EFF but I don't really see the point of suing the NSA. If they loose, they will call it something else keep doing it. And the NSA is only one of the offenders. Don't think foreign gvt aren't doing the same on their side of the cable. The only solution is systematic encryption. The EFF's let's encrypt effort is way more constructive in my mind.

There's a lot more to a lawsuit than just winning or losing. By the time this is over, the public will (should) know _exactly_ what is happening, and _exactly_ what the legal basis for it is (should the EFF lose). With that knowledge, we can advocate for specific legislative change.

Assuming that the NSA would continue on regardless of winning or losing is to have zero confidence in our legal system. While there may be some ground for skepticism, using all available tools is absolutely appropriate.

Your comment doesn't imply that they will stop either. Advocating for change doesn't mean you'll get any.

Both avenues must be pursued. One without the other is useless. Pursuing the technical-only approach will fail if the use of such technology is made illegal.

That's actually a worry. I wonder if the NSA's reaction is not going to make backdoors mandatory. But in a way the genie is out of the bottle. Most of the crypting technologies are freely available and the US can't de-invent and de-distribute them.

It doesn't even need to be made illegal, just incorrectly "regulated".

--Someday in the futre---

SecurityAwareCustomer: "I've noticed that my VPN and ssh connections have started to lag & disconnect frequently"

Comcast: "We've gotten several reports on this issue. To better serve our customers we've implemented a software designed to optimize network traffic routing. To do that, the software must do some deep packet inspection. Unfortunately, if a traffic is encrypted this software must go through all its known packet types before determining that it's encrypted. This takes time and also because the incoming buffer might fill up before it's done determining the packet is from an encrypted stream, said packets might get dropped entirely."

SecurityAwareCustomer: "So, encrypted traffic's performance is severely degraded then?"

Comcast: "We're sorry for any inconvenience this may cause"

SecurityAwareCustomer: "Couldn't you check if it's known encryption first, then try other packet types?"

Comcast: "The software vendor has been made aware of the issue. Due to net-neutrality laws & regulations, the vendor was assigned to us by the USGov and they must review any proposed changes to the software. This legal process could take a long time."

SecurityAwareCustomer: "How long?"

Comcast: "Thank you for choosing Comcast!"

-Comcast hangs up phone-

SecurityAwareCustomer: "............huh"

Think of it this way: If we set the precedent that this sort of surveillance is unconstitutional, it will be easier to sue them the next time around. Additionally, if we take this stance as a country, then our government will be more likely to put pressure on foreign powers not to do the same.

That said, I don't disagree about encryption being the real answer. We've gone too long without end-to-end encryption by default.

But that doesn't mean that we shouldn't be fighting on both fronts. End-to-end encryption will take a while, why not fight the fact that they're doing it at the same time?


The court thus faulted them [the ACLU in ACLU v. NSA, 493 F.3d 644, 648] for “assert[ing] a mere belief” that the NSA eavesdropped on their communications without warrants. Id. This failure of proof doomed standing. Ultimately Jewel may face similar procedural, evidentiary and substantive barriers as the plaintiffs in ACLU, but, at this initial pleading stage, the allegations are deemed true and are presumed to “embrace the ‘specific facts’ needed to sustain the complaint.” [0]


EFF is on a fishing expedition. I am not unsympathetic. But this judicial arm-twisting and absurd twisting of language / law needs to stop as the road it opens is not helpful to our democracy. They will never be able to justify their claims with anything that will pass evidentiary muster.

Supporting the EFF is all fine but generally a waste of time and money for effecting real change. The only way these programs end is if Congress is full of people who want this to stop and will ensure that it does.

If an obscure libertarian like Grover Norquist can dominate electoral cycles with a "Taxpayer Protection Pledge" why can someone not similarly dominate electoral cycles with a "Privacy Protection Pledge"? Demand every presidential candidate sign it, etc. Make it a real wedge issue.

I wonder if the answer is that US citizens don't care because they don't really see how they are harmed? They believe the Govt is protecting them by doing this?

[0]: http://cdn.ca9.uscourts.gov/datastore/opinions/2011/12/29/10... [pdf]

Oh, people are still making this comment on HN? The whole "the only answer is politics" thing sort of lost its luster when absolutely nothing happened politically over one and a half years since Snowden. One could argue the NSA has only been solidified by the political system.

So good luck with that approach.

It is odd how, with all the "shocking" revelations, nothing has effectively changed. It's like Snowden did the NSA a favor - exposing their secrets and so now they can act exactly the same but not in secret. Like a husband caught in an affair, and the wife doesn't care. Makes the NSA's lives a lot easier not having to lie about what that locked room is for at AT&T.

"If an obscure libertarian like Grover Norquist can dominate electoral cycles with a "Taxpayer Protection Pledge" why can someone not similarly dominate electoral cycles with a "Privacy Protection Pledge"?"

I, for one, prefer when the 1% are not so influential in politics.

"Supporting the EFF is all fine but generally a waste of time and money for effecting real change. The only way these programs end is if Congress is full of people who want this to stop and will ensure that it does."

If this is the only way, I have little hope.

All these comments about donating to the EFF. Any way I can donate money to the NSA to balance things out a bit?

It's called taxes, and don't worry, you are already a BIG donor.

According to Wikipedia, NSA's share of Federal budget outlays was about 0.28% in 2013 (although there's a conceptual question whether you can just multiply your tax bill by 0.0028 to find out your contribution to NSA's budget, because Federal expenditures are also funded from sources other than personal income tax).

(Here I kind of wish we had a "facts we wouldn't know without Snowden" mock-HTML tag.)

Not to mention the "Black Budgets" that undoubtedly fund the NSA and friends.

All these comments about taxes are really making me regret creating that Irish shell corporation.

Sure, when you file your taxes you are able to pay more than your required amount. It won't go directly to the NSA, but it will surely help out.

Yep, buy heroin and cocaine. They have a nice little sideline with the CIA.

You can wear a T-shirt that says "EFF hates us for our freedoms", if you want to support the NSA.

Guys, this was sarcasm. It was funny. Relax.

It's okay. Not every joke can be a winner.

I personally thought your comment was quite funny. I gave you an upvote.

Just use your credit card on any eCommerce website that uses opencart. TAO can take care of the rest. :P

Sure! Pay your taxes.

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