FBI Harassing Core Tor Developer, Demand Meeting, but Refusing to Explain Why • Hacker News Board

Re: FBI Harassing Core Tor Developer, Demand Meeting, but Refusing to Explain Why

#111

Post by algorias » Fri, May 06, 2016, 3:25 PM UTC

DougHaber wrote: post #30

praptak wrote: post #19

Earlier quoted context omitted.

They would just serve the paper using the usual techniques for delivering legal papers to persons possibly unwilling to receive them. These techniques usually avoid identifying yourself upfront. I believe they rather want information which they cannot legally force her to divulge (otherwise see above), so they're trying their luck at intimidation.

That isn't always true. In the U.S. legal system, a person can be granted immunity, and in doing so have their 5th amendment protection against self-incrimination terminated. With that, they could be forced to provide testimony, and refusal could result in fines and jail time without due process for as long as the courts see fit.

I don't understand your "without due process" statement. Surely there is a process for granting someone immunity?

Jail time does seem appropriate for non-compliance with a legally binding judicial order (I'm not endorsing or condemning the existence of these laws, btw)

Re: FBI Harassing Core Tor Developer, Demand Meeting, but Refusing to Explain Why

#112

Post by rdtsc » Fri, May 06, 2016, 3:27 PM UTC

MacsHeadroom wrote: post #49

praptak wrote: post #19

Earlier quoted context omitted.

They would just serve the paper using the usual techniques for delivering legal papers to persons possibly unwilling to receive them. These techniques usually avoid identifying yourself upfront. I believe they rather want information which they cannot legally force her to divulge (otherwise see above), so they're trying their luck at intimidation.

NSL are used to compel a party to DO something to assist with, so called, matters of national security, under threat of physical force. If the letter isn't received and a person can't be physically detained then it can't compel anything, other than hiding from its possible existence To make things more difficult, the very contents of the letter itself are considered a national secret. Typical methods for serving pape…

Isn't there a process to serve legal documents already? If that is what they are going to do, just server her the letter.

Re: FBI Harassing Core Tor Developer, Demand Meeting, but Refusing to Explain Why

#113

Post by MacsHeadroom » Fri, May 06, 2016, 3:27 PM UTC

bravo22 wrote: post #104

MacsHeadroom wrote: post #49

Earlier quoted context omitted.

NSL are used to compel a party to DO something to assist with, so called, matters of national security, under threat of physical force. If the letter isn't received and a person can't be physically detained then it can't compel anything, other than hiding from its possible existence To make things more difficult, the very contents of the letter itself are considered a national secret. Typical methods for serving pape…

My understanding is that the NSL is a subpoena , and therefore a request for production of documents. It does come with a gag clause however. Government can only compel you to hand over information for third party which you possess. They can't compel you to DO something, as demonstrated by FBI v Apple recently.

Just the same, they can compel someone to give over information that enables the FBI to do something on their behalf- private encryption keys or signing certificates, for example.

Re: FBI Harassing Core Tor Developer, Demand Meeting, but Refusing to Explain Why

#114

Post by MacsHeadroom » Fri, May 06, 2016, 3:31 PM UTC

rdtsc wrote: post #112

MacsHeadroom wrote: post #49

Earlier quoted context omitted.

NSL are used to compel a party to DO something to assist with, so called, matters of national security, under threat of physical force. If the letter isn't received and a person can't be physically detained then it can't compel anything, other than hiding from its possible existence To make things more difficult, the very contents of the letter itself are considered a national secret. Typical methods for serving pape…

Isn't there a process to serve legal documents already? If that is what they are going to do, just server her the letter.

The process for serving legal documents which are also considered national secrets is to physically detain someone and have them read (or read to) the document. No copy of the document is made or delivered in a way which allows the individual to retain a copy of the document. That is the process, so far an NSL is involved.

Re: FBI Harassing Core Tor Developer, Demand Meeting, but Refusing to Explain Why

#115

Post by [deleted] » Fri, May 06, 2016, 3:31 PM UTC

rdtsc wrote: post #112

MacsHeadroom wrote: post #49

Earlier quoted context omitted.

NSL are used to compel a party to DO something to assist with, so called, matters of national security, under threat of physical force. If the letter isn't received and a person can't be physically detained then it can't compel anything, other than hiding from its possible existence To make things more difficult, the very contents of the letter itself are considered a national secret. Typical methods for serving pape…

Isn't there a process to serve legal documents already? If that is what they are going to do, just server her the letter.

[deleted]

Re: FBI Harassing Core Tor Developer, Demand Meeting, but Refusing to Explain Why

#116

Post by fulldecent » Fri, May 06, 2016, 4:03 PM UTC

danielweber wrote: post #70

nothrabannosir wrote: post #38

Earlier quoted context omitted.

Could an NSL require you to leave canaries in place?

If you are required not to communicate something, then you don't communicate it. Period. Hackers are bad at thinking "oh, I'll just not not not not do the thing, and it will all be okay, I'm so clever." They imagine they are Captain Kirk talking a computer to death. No one has ever been as smart as them! We wouldn't let a CEO route around insider trading laws with a "I don't say this is a good time to buy my stock" c…

This is exactly the approach that CEOs use to get around insider trading laws. It is called "stripping".

Re: FBI Harassing Core Tor Developer, Demand Meeting, but Refusing to Explain Why

#117

Post by rdtsc » Fri, May 06, 2016, 4:06 PM UTC

MacsHeadroom wrote: post #114

rdtsc wrote: post #112

Earlier quoted context omitted.

Isn't there a process to serve legal documents already? If that is what they are going to do, just server her the letter.

The process for serving legal documents which are also considered national secrets is to physically detain someone and have them read (or read to) the document. No copy of the document is made or delivered in a way which allows the individual to retain a copy of the document. That is the process, so far an NSL is involved.

Ok, I see, in that case it makes sense.

Re: FBI Harassing Core Tor Developer, Demand Meeting, but Refusing to Explain Why

#118

Post by geggam » Fri, May 06, 2016, 4:18 PM UTC

roninb wrote: post #91

pc86 wrote: post #61

Earlier quoted context omitted.

You have no such protection if you won't be incriminated by the answers (e.g. they are asking you about someone else). You can of course be involuntarily called as a witness in proceedings where you're not being prosecuted.

AFAIK, (and IANAL), you would have to be certain the questions did not incriminate you. In other words, "pc86, were you or were you not on your couch May the 5th at 8PM EST?" "I plead the fifth." "Your honor, this doesn't incriminate the witness." "pc86, you must answer the question because it is non-incriminating." And of course if it was incriminating, the appellate lawyers would win resoundingly. Logically, it wou…

You however do not have to talk to the police. Ever.

You shouldn't either. They are not your friend.

Re: FBI Harassing Core Tor Developer, Demand Meeting, but Refusing to Explain Why

#119

Post by jbpetersen » Fri, May 06, 2016, 4:18 PM UTC

danielweber wrote: post #87

x1798DE wrote: post #83

Earlier quoted context omitted.

Not exactly sure of the legal situation about canaries, but generally they are constructed as a dead man's switch type situation, where you make a commitment to do something if something else hasn't happened. The idea being that compelling you to act and restraining you from action are two different things. Given that Reddit has exercised their warrant canary already and other big companies have them, apparently actu…

The idea being that compelling you to act and restraining you from action are two different things. Again: if you are told not to communicate something, you don't communicate it. How come the CEOs who try all sorts of crazy things to work around insider trading haven't tried this? Given that Reddit has exercised their warrant canary already and other big companies have them, apparently actual lawyers think it's a val…

Insider trading law doesn't wait for a magic piece of paper to cast a spell on you.

My guess is the insider canary would be secondary to the fact that you established a protocol for making use of one in the first place.

Re: FBI Harassing Core Tor Developer, Demand Meeting, but Refusing to Explain Why

#120

Post by DougHaber » Fri, May 06, 2016, 5:01 PM UTC

algorias wrote: post #111

DougHaber wrote: post #30

Earlier quoted context omitted.

That isn't always true. In the U.S. legal system, a person can be granted immunity, and in doing so have their 5th amendment protection against self-incrimination terminated. With that, they could be forced to provide testimony, and refusal could result in fines and jail time without due process for as long as the courts see fit.

I don't understand your "without due process" statement. Surely there is a process for granting someone immunity? Jail time does seem appropriate for non-compliance with a legally binding judicial order (I'm not endorsing or condemning the existence of these laws, btw)

In a sense, I think you are right and perhaps my bias is showing. From the perspective of a judge or prosecutor, they followed a legal process and gave a legal order, so there is no violation of due process in their eyes.

Through the eyes of a person compelled to give testimony, we may reach a different conclusion. Consider a journalist who is granted immunity and asked to give up their source. They refuse and spend six months in jail, with few to no options to appeal for their freedom. This isn't theoretical. It happens occasionally.

The definition of due process can vary from the common definition of fair treatment under the law, to the view more often taken by lawyers and governments that it just means following the process of the law as accepted by the courts and respecting legal rights.

The reporter probably would feel as though they weren't treated fairly under the law, but the prosecutor would argue that they followed the law in full. I probably should not have used the phrase "without due process" in this case, since that will make it difficult to communicate with anyone holding views of the government or lawyers.