Unsealed Filing Shows DOJ Misled Appeals Court About NSL Gag Orders | Hacker News Reader

Unsealed Filing Shows DOJ Misled Appeals Court About NSL Gag Orders

eff.org

119 pointssinak42 comments

Provisions in the law the gag participants from even talking about a violation of their rights are particularly insidious. Sure, they're Kafka-esque, but they also affect the poor, small and marginalized disproportionately.

What is a small business or private citizen to do if they cannot even talk about how they're being wronged against? How will they solicit the support of others? How will they use the free media/press (meant to be a bulwark against injustice) to publicize their cause?

This isn't isolated to just the NSA/FBI/DoJ, or the US alone. Ag-gag laws [1], "super injunctions" [2] and "secret trials" [3] are all examples of this dangerous trend.

[1] - http://www.theguardian.com/commentisfree/2012/jun/06/agricul...

[2] - http://www.lawteacher.net/human-rights/essays/super-injuncti...

[3] - http://www.bbc.co.uk/news/uk-27806814

There was a particularly apt quote from UK's former homeland security spokesman:

> Secret court hearings will hand a major propaganda victory to terrorists, a former security adviser to David Cameron has warned. Senior Tory MP Patrick Mercer said he had ‘grave’ concerns about the Government’s plans, which he warned would erode centuries of open justice.

> The former Army officer, who served as the party’s homeland security spokesman until 2007, also claimed the measures would succeed in destroying British values – effectively doing the terrorists’ job for them

http://www.dailymail.co.uk/news/article-2126374/Secret-court...

It's a shame that American lawmakers did not come to a similar conclusion, that secret courts and rulings erode the values of a free and open society.

> secret courts and rulings erode the values of a free and open society.

secret courts allow the appearance of a free and open society whilst actually enacting draconian practices without fear of reprisal.

Some did and continue to do so, they are usually the people labeled as crackpots, conspiracy theorists, and/or unpatriotic.

> Provisions in the law the gag participants from even talking about a violation of their rights are particularly insidious. Sure, they're Kafka-esque

Nit-pick: people misuse the term "Kafka-esque" when they mean "Orwellian." It doesn't refer to insidious, purposeful, bureaucracy. It refers to bureaucracy that is irrational as a whole because of the mechanical, impersonal nature of its parts. E.g. to get a social security card you need to show your driver's license; to get a driver's license you need to show your social security card.

You don't need a driver's license to get a social security card. I didn't have a DL back when I got my SSC, I only needed proof of legal residence (student/work visa in my case) and employment (offer letter).

IIRC, I didn't need a SSC for the DL either, but it's been a while, so I'm not too sure on that.

What happens if someone went on CNN/whatever and just went "so we got this NSL..."

Guantanamo?

I'm a bit surprised someone hasn't simply opened their mouths. I applaud the EFF and everyone fighting this fight. Money is free speech but you can't talk about super-aggressive and highly-invasive (probably unconstitutional) NSLs even to say you got one.

So utterly bizarre and disheartening. Although maybe disenfranchisement is half of the point.

The EFF is doing important work. I hope everyone has either donated to them or switched their smile.amazon.com over to EFF. Or at least for the software/hardware people on HN.

I didn't know you could do this (I thought there were only a few handpicked charities). If you want to make a similar change your smile charity go here:

https://smile.amazon.com/gp/charity/change.html?ie=UTF8&ref_...

Then install the "Smile Always" plugin to redirect you to smile:

https://chrome.google.com/webstore/detail/smile-always/jgpmh... (The offical amazon one doesn't auto redirect AFAICT)

Guantanamo, no. Ugly and protracted legal battle against an adversary that would like nothing better to make an example out of you, yes.

"How do you feel about living in Russia for a bit?"

You would likely go to federal prison, you would not be given a fair trial (a judge would sentence you in a secret court).

The only reason Ladar Levison (the Lavabit guy) is a free man right now is because the guardian picked up his story before the FBI could toss his ass in a black SUV. He got lucky.

Source on secret court is handing out jail sentences?

The whole "secret court" thing is FUD. The FISA "secret court" was created by law to insert itself into a process that didn't require a court proceeding in the first place. It's not empowered to adjudicate peoples' rights and obligations.

I still don't think I'd like to be the person to test that.

See? The system works!

/snark

No source on handing out jail sentences, but I would bet you would get one if you defied it since you would be defying the law. Which would be when someone from the Justice Department would knock on your door. I would agree it's not quite the same thing.

As for "secret court" that you put in "scary" quotes. Just to be sure, no one says secret as in no one knows it exists, but that the public is not allowed to know what it does. Which is not FUD, some of us see that as a clear problem.

It is definitely FUD to say "a judge would sentence you in a secret court."

And we know what the FISA court does--it reviews requests by intelligence agencies to engage in foreign surveillance, as provided for by the FISA Amendments Act. It does not put people in jail. The biggest misunderstanding about the FISA court, a misunderstanding rooted in FUD, is that it has the powers of an ordinary court and uses them in secret. But unlike a regular federal court, a FISA court cannot adjudicate your rights and obligations.

What Congress did by creating the FISA court was to insert the judicial branch into a process, foreign surveillance, that, Constitutionally, does not require judicial branch involvement. Its proceedings can be secret only because it does not exercise the normal power of the judicial branch to determine peoples' legal rights.

Ok, I'll try again. Yes, we know about the FISA courts. Yes, we know what they are mandated to do. Yes, we know they work with intelligence agencies.

The problem, as I see it, is the secret of exactly what they are doing in terms of American people and/or businesses that require they place gag orders on nearly everything they do.

I wouldn't say that they "sentence" people as in a normal court of law, but what happens if you defy one of their orders? If I were to ignore their gag orders then they'll just say "oh well, too bad for us"? The reason we don't know what happens in that case is because, as far as I know, no one has openly defied the orders.

Notice I said the Justice Department, not FISA, knocks on your door.

Saying this court throws people into secret prisons via secret orders enabled by secret laws is, of course, FUD. But then, I'm not saying any of that at all.

The court would likely charge you with contempt.

http://www.theblaze.com/stories/2014/02/19/child-services-fi...

I'm still angry at Marissa Mayer for saying that if she could go to prison over something like this. That's just not something I would expect a CEO of such a major corporation to say. FFS, US is not China (yet). She shouldn't put fear into everyone's hearts with that kind of statement, especially since I believe it was mostly baseless.

A CEO can go to prison for selling stock at the wrong time...

Have you heard of Joe Naccio? http://www.denverpost.com/business/ci_25434854/former-qwest-...

The argument was an odd one to begin with. The government argued that it was not stifling speech because you could say, "I have received between 0 and 249 NSLs, and here's what I think about NSLs..."

You could not, however say, "I have received between 0 and 249 NSLs and here's what I think about NSLs (and I should know because I got one)...

If it's not true that someone can complain about NSLs generically, then there is an odd position where one can comment on facts or opinions about NSLs precisely until one actually has experience to support facts or opinions about NSLs.

Correct, how can we confident the gag orders don't require AmaGooSoft to pretend they received fewer NSLs than they did?

I've been wondering this for a while now, can I set up a Twitter account that automatically tweets ever day "MatteoTom has never received a NSL/a gag order", and if I ever do receive one, stop sending the tweets?

Can the FBI/DOJ/whoever require me (or Twitter) to continue to send out the tweets? Or is it somehow illegal for me to set up such an account in the first place?

You don't get it. THEY are unconstrained by law.

I'm not sure I understand what you're saying. The idea is that I would confirm that (NSLs received >= 1) by not saying that (NSLs received == 0).

The programmer's logic does not apply here. When you lie, you go to jail or worse. When they lie, they get promoted.

YOU don't get it. He's not talking about their actions; he's talking about his own.

Also, yes, they are constrained by law. That's how we're able to take the government to court.

That's called a warrant canary: https://www.eff.org/deeplinks/2014/04/warrant-canary-faq

I think you'll find that whatever it is that you are doing (or not doing) that they find objectionable will be some crime or another. The courts around here are becoming somewhat... marsupial.

There is a bug in your implementation. If the tweet goes out automatically every day instead of sending you a gag order they could simply jail you. Your tweets will continue to go out just fine.

http://www.washingtonpost.com/news/morning-mix/wp/2014/10/07...

"At first glance, the Facebook profile is the perfect deception. Purportedly belonging to brown-haired woman named Sondra Prince, it shows her driving a car, splayed across a white BMW, hugging two young children. If someone were to stumble across the profile, which still exists, there would be little way for them to know the truth: The profile is a fake.

"It was created surreptitiously by a Drug Enforcement Administration agent, who seized Prince’s phone in July 2010 after arresting her, mined it for photographs, then used those pictures to forge a fraudulent profile which allowed authorities to impersonate Prince in an investigation into an alleged New York drug ring."

At this point why doesn't everyone assume DoJ/law enforcement is misleading in Court? That should be the default, and their statements should always be thoroughly checked.

The government has nothing to lose. They can print money and write new loopholes into laws. There need to be class action lawsuits against every corporation complicit in crimes against the public. If I can get paid for Red Bull promising me wings, I can certainly sue Google for using a sealed envelope as the logo for Gmail.

Then don't ever use Google new "Inbox" because they choose an open envelope as the logo.

Everywhere it says 'quality' I think it's supposed to say 'quantity'. This was quite confusing, since the world 'quality' appears throughout (and a total of 4 times) but the word 'quantity' appears only once at the 2nd to last quote, and even then it's contradictory;

  There’s nothing that says that they can’t comment, they’re
  allowed to make specific comments about _quantity_, there’s
  absolutely no ban on them commenting on the _quality_ of those
  they’ve received.

Or is it actually that the argument was over commenting on the "quality" of the NSL, and if so, what does that even mean?

I'm gonna go out on a limb and say Eric Holder's DoJ is the worst we'll see in our lifetime.

You are an optimist!

Alberto Gonzalez and John Ashcroft give stiff competition there. Google for "alberto gonzales jane harman". I'm still puzzled about why that story didn't get any traction.

Anyway, I think you're optimistic.

I have at least another 25 years in me (I hope!) and I'll take that bet.

Still, more truthful than the Honorable Director Clapper...

Reply on news.ycombinator.com