EFF Asks Court to Undo Damage Done to First Amendment in Flawed NSL Ruling | Hacker News Reader

EFF Asks Court to Undo Damage Done to First Amendment in Flawed NSL Ruling

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127 pointsDiabloD320 comments

Bush, Obama, and now Trump have been increasingly adding new judges that have a tendency to be pro-surveillance. I think this situation is only going to get worse in a "boiling the frog" kind of manner, where judges effectively argue that in most practical situations rights such as those given by the 4th amendment are not applied, except in very specific and hard to pinpoint situations.

They're already doing this with online data, which seems to have very little 4th amendment protections.

How are gag orders like this even allowed in our country? What is the point of a gag order that restricts talking about "The FBI wanted customer records" other than "the government might be up to no good and wishes to cover their tracks as early as possible?"

I would like to see any intelligent person make the argument that the gag order is a necessary part of due process. Revolting.

> I would like to see any intelligent person make the argument that the gag order is a necessary part of due process.

I can't personally fathom an argument that justifies it as necessary to due process, but I can sort of imagine a hand-wavy explanation as to how it's necessary to security against terorrism / drug dealers / pedophiles / for the children / whatever the cause du jour is at the moment.

I'm of the relatively staunch belief that this is what happens when people run around making claims about how 'no right is absolute' over whatever policies they don't like at the time, in the hopes of those rights being abridged to whatever degree they prefer. As much as the 'slippery slope' argument gets deployed against a perceived over-broad expression of civil liberties, the inverse is at least as true -- every time we diminish the absolutism of a civil right we don't like, we make vulnerable the rights that we do.

When we try to put limits on speech, because somebody somewhere is saying something potentially harmful, or allow for exceptions to due process for "really bad people", we poke holes in the fabric of judicial scrutiny that makes all rights viable.

Very well said. I wish more people held this valuable understanding.

Token reminder, consider donating to the EFF, a registered nonprofit as they help maintain our freedom / privacy online:

https://supporters.eff.org/donate

Can someone with some legal knowledge explain what the process is for a legal precedent to be undone? What does a 'petition' to rehear a case actually mean? Is that a thing that might feasibly happen?

I've always wondered about this too. What happens when precedent is set either by faulty cases or people with agendas?

Or non-significant early cases where the stakes aren't too high and rulings that will lead the path to precedence can vary.

Wikipedia's article is fairly complete: https://en.wikipedia.org/wiki/Precedent

TL;DR: Precedent is binding to court where it was set and "below". To overrule it, you generally must appeal until you reach the level above where it was set. IANAL.

The supreme court can overturn precedent. They are not bound to follow the precedent of previous supreme court rulings. They don't do this lightly or particularly often, though.

How do appeals work with circuit splits? Suppose I lose a case, appeal to the supreme court, and am rejected. Years later, a different case in a different circuit reaches a contradictory conclusion, but the losing side declines to appeal. Can I now re-appeal to the supreme court in light of the split, or am I SOL?

You need to have a current case in order to appeal it. (Indeed, you need to have had a sufficiently recent adverse decision of an appropriate kind in your case in order to appeal it.)

I don't have the kind of expertise you're asking for, but judging by the letter, it seems the EFF is asking for the decision to be re-heard because the court completely IGNORED legal precedent in their decision. The petition to rehear the case is a request to have the full circuit hear the case. Initially, it's only a group of 3 judges from the circuit who decide a case.

I don't think it's usually done because it's easier to just find another case. But here, the nature of government secrecy makes new cases hard to find.

Ordinarily, federal appellate courts (like the Ninth Circuit here) decide cases using randomly assigned panels of three judges. A decision of a panel is binding precedent on future cases in the same circuit (both as to future panel cases and all trial court cases). Within a certain time after issuance of a panel decision, the parties can seek rehearing—either by the same panel, or an “en banc” court of all the judges in the circuit.[1]

Petitions for rehearing are not granted routinely, but reasonably frequently. Probably better odds than seeking Supreme Court review if you’ve got a case where there is no circuit split (disagreement among different courts of appeals). The judges in the court all receive the rehearing petition, and they can vote to rehear the case. If a majority think the case is important and the panel got it wrong, they’ll grant rehearing, in which case the case will be argued again in front of the whole court.

One important thing is that a panel can rehear it’s own decision, but can not overturn the ruling of a previous panel in another case. An en banc court can overrule any of the court’s prior precedents.

[1] Except the ninth circuit, which is so big and geographically dispersed an en banc Court is something less than the whole court.

One reason the supreme court doesn't like to hear cases unless there is a split is they know they are the final word. If the supreme court takes a case they have to come up with the right answer for all cases because if they are wrong - even in one subtle non-obvious point - their wrong answer will be forced on all lower courts for that situation.

If a situation that all lower courts are getting "right", then there is no need for them to think about it, the lower courts are all getting the same answer, and the lower courts are all made up of smart people who have thought about it. If there is a situation where the lower courts do not agree - that means smart people have thought about the issue and do not agree, thus they need to think very hard about this situation to come up with a perfect answer. Perfection is hard of course, so they generally narrow the scope of what their decisions cover until only the minimum possible scope is covered thus ensuring there is less room for a subtle situation where they are wrong.

i feel like donating to the eff is my duty as a software engineer. plus they will send you a sweet hoodie

That hoodie is boss! As a computer scientist and creative type, I gotta say they did a really great job with the design. If you can afford to give enough to get one, please do! :) https://supporters.eff.org/files/fist_back_200px_0.jpg

By the way! You can get a hoodie by contributing $250.00 all at once, or doing a $25 monthly contribution.

Also see:

https://www.law.cornell.edu/wex/stare_decisis

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