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Federal Judge Finds National Security Letters Unconstitutional, Bans Them

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Re: Federal Judge Finds National Security Letters Unconstitutional, Bans Them

#121

Post by jholman »

anigbrowl wrote: post #85
jholman wrote: post #74

Earlier quoted context omitted.

I'm trying to understand your claim here. If I understand correctly, the sequences of events is like this: A) FBI issues NSL to ISP, demanding information, and prohibiting disclosure. B) ISP starts a proceeding challenging constitutionality of gag C) FBI starts a separate proceeding reasserting validing of gag D?) Wired also claims that the FBI claimed that step B violated the law, but I don't see that in the ruling…

IANAL or a procedural expert, and more importantly I have not read all the filings so far, but my understanding is that the tension between steps B and C goes like this: B) ISP files suit, argues 'this ain't constitutional, we shouldn't have to comply.' DoJ disagrees. C) FBI counter-files, asserting that even if ISP prevails in step B), it should comply in the meantime rather than temporize pending the outcome. I can…

IANAL either, of course.

Thanks for clarifying your claim.

Without having read all the stuff, and in fact mostly just having read the first few pages of the judgement that you posted, I think it's clear that a key part of (B) is that the ISP argued that the gag was unconstitutional. I have seen no evidence so far saying that the judgement against the FBI gets the ISP off the hook for turning over the data.

I agree that, insofar as (B) was about not turning over information, (C) seems reasonable.

I also agree that, as these things go, every time the "bad news" involves "was taken to court", we should remember that the news could be worse, involving arrest or ruin. So yay there. Then again, taking people to court often results in arrest and ruin, so it's kinda a partial victory. But still, yay for rule of law.

There's a place I disagree with you, though:

D, if true, horrifies me. "You're not only allowed to disobey, you're not allowed to ask the court for permission to disobey. Making use of the judiciary is a crime." That's a horrifying assertion to make.

D also, based on the account given, seems insane. The courts had already actively stated, in 2005, that both your version of (B) and my version of (B) are legal. As I write these sentences, I remind myself that any time someone else seems insane, odds are good that I don't have the whole picture.

Re: Federal Judge Finds National Security Letters Unconstitutional, Bans Them

#122

Post by dchichkov »

mrich wrote: post #91
rayiner wrote: post #10

Great work by the EFF here. There is a delicate balance between the power of the executive and the power of the courts and trying to chill the telecom's access to the court system by claiming that the company was interfering with an investigation by challenging the NSL is a deeply troubling action. Abuses can be fixed, but not if they can't be challenged in court.

Kudos also to the unnamed telecom company that went out of their way to fight this, and the EFF for fighting the good fight. Don't forget to donate to them.

Kudos to the EFF. And here is a link to vote with your money: https://supporters.eff.org/donate/nsl

(And yes, I'm a member)

Re: Federal Judge Finds National Security Letters Unconstitutional, Bans Them

#123

Post by wnight »

anigbrowl wrote: post #108
wnight wrote: post #90

Earlier quoted context omitted.

And (a) explicitly not constitutional in that it attempts to bypass the limits knowingly placed upon government by the people. An order to bypass auditors is never valid, especially from government. That you think this is okay is scary. But this is why we need to remember that the law is an imperfect rendering of our intent, not the other way around.

You need to distinguish between the different branches of goverment; it's not a monolithic entity, nor is it constituted as one. It's not as clear as you think that the example above isn't constitutional, because in making immigration law Congress is exercising one of its enumerated powers to 'establish an uniform rule of naturalization,' and an argument can be made that the Judicial branch has business poking its no…

I know the government isn't a monolithic entity - we rely on it being many departments in many agencies all full of individual people each bringing their own ethics into play or we'd simply have an automated dictatorship - Chinese-Room style. The problem we're discussing is one governmental body trying to remove peoples' recourse to appeal to the other branches of government, specifically to avoid their work being audited.

By that tired "X needs Y, thus X implies Y for any interpretation of X" argument the existence of bottled water makes drinking of rainwater fall under federal control via the inter-state commerce act. It's kind of clever in one sense but pointless in another.

And if you don't think this is okay you sure spend a lot of time "explaining" it. We weren't having a cite contest but you sure tried to win, and in doing so you don't miss my point so much as you try to overrule it with precedent.

We wouldn't have a system of carefully enumerated powers if we really didn't care and they all just meant the same thing. In the end, yes, we still end up governed. But in the same way people dislike trusting a single company with all their services they dislike trusting a single governmental body with too much power. And the power we really can't let anyone have is the power to grant themselves more power. If there's a law, or combination of laws, that read that way, it's a bug not a feature.

Re: Federal Judge Finds National Security Letters Unconstitutional, Bans Them

#124

Post by anigbrowl »

wnight wrote: post #118
anigbrowl wrote: post #93

Earlier quoted context omitted.

Exactly - and such legislative overreach is often rebuked and/or set aside by the courts. But legislation is not required to be pre-certified as Constitutional before it is passed by Congress or signed by the President. This is probably a good thing, because otherwise it would be much more difficult to bring challenges on unforeseen grounds that manifested after the legislation had gone into force, and you'd have a l…

Even soldiers (with guns, while under fire) are expected to act legally, and ethically where those standards differ, and we need to hold everyone - public servant or not, to the same standard. Not only does such a law (making challenging a gag a crime) clearly require authority the people would not and did not grant to the government, but applying such a law to stifle oversight of your actions is criminal - especiall…

The thing is it takes time to establish exactly what the right standards are, and it's not necessarily settled after today; there might be a circuit split or appeals to confuse the issue in the coming years. Where national security is concerned, the standards are different from those we're familiar with in criminal cases, for example in not requiring a warrant for issuance. See https://en.wikipedia.org/wiki/National_security_letter

Now, you say that these require authority that the people 'would not and did not grant to the government.' I'd agree that they should not, but as I recall there was quite a lot of popular support for the PATRIOT act when it first passed, and the concerns of civil libertarians (including mine) were pretty much sidelined.

Re: Federal Judge Finds National Security Letters Unconstitutional, Bans Them

#125

Post by tlrobinson »

noonespecial wrote: post #69
bashinator wrote: post #46

Earlier quoted context omitted.

Wouldn't this just be considered premeditated intent to violate the NSL gag orders?

I think it works like this. They are not permitted to tell you that they have been served a warrant, but they are always free to tell you that they haven't . If they should suddenly stop doing so, its up to you to draw your own conclusions as to why. That seems reasonable, even in the context of the madness of federal law. As the text file says however, its always possible that they are being coerced to lie and conti…

I'm curious where the line is drawn.

What if they had a different file for every user?

What if one were to setup an independent site that reported the presence/absence of these files on 3rd party sites, but explicitly pointed out that the absence of the file, given the history of it's presence, meant there was a high probability that a NSL was served to a specific site, for a specific user...

Re: Federal Judge Finds National Security Letters Unconstitutional, Bans Them

#126

Post by KoulMomo »

Shivetya wrote: post #49
KoulMomo wrote: post #37

Earlier quoted context omitted.

Obama's justice department has been just as horrible, if not more-so than Bush's justice department.

The real tragedy is the free pass the press gives him, if Bush had pulled this, the drone hits, fast and furious, and more, we would have at least had the press on our side. I can, but don't have to accept, members of his own party turning a blind eye, I will never accept a press which has.

I don't think that the press is giving him a pass, so much as what he is doing has the approval of BOTH parties.

The press (I'm talking about the one that drives the political discourse, in this case, the major news networks) is divided into three teams:

1) MSNBC aka Team Democrat

2) Fox News aka Team Republican

3) CNN aka Team WE'RE NEUTRAL WE'RE NEUTRAL, PLEASE DON'T CALL US BIASED

Team Democrat will almost never say a bad word about Obama because he is a Democrat (and this would anger his base, aka their viewers).

Team Republican actually APPROVES of what he is doing so don't attack him on it (instead choosing to focus on attacking a fictional Obama character who is a "Socialist Atheist Muslim Commie Infiltrator born in Kenya").

This leaves CNN, who out of fear of ever being called biased, attempt to be neutral (as opposed to objective) and so take part in "he said, she said" journalism, and right now, both he and she are saying the same thing: "OBAMA NATIONAL SECURITY POLICY GOOD".

examples:

1) Democrats say Obama's new healthcare bill will help decrease the deficit, Republicans say it will add to the deficit. What's the reality? The f*ck should I know? It's not like we do any investigative journalism here, let me instead have a split screen of two a$$holes engaged in a shouting match. One representing team Democrat and the other, team Republican.

2) Democrats say that Paul Ryan's budget proposal does not offer any specifics as to how exactly he would lower the deficit and thus is not a serious proposal. Paul Ryan disagrees. Who's telling the truth? I don't know, it's not like I know how to read or anything.

I also specifically picked these examples to mention another trend, that of CNN (and other news networks/outlets hoping to earn the moniker of neutral/bi-partisan), fearful of charges of being part of the "liberal media" will over-correct, and usually be harsher on Democrats than Republicans.

Re: Federal Judge Finds National Security Letters Unconstitutional, Bans Them

#127

Post by sage_joch »

tlrobinson wrote: post #125
noonespecial wrote: post #69

Earlier quoted context omitted.

I think it works like this. They are not permitted to tell you that they have been served a warrant, but they are always free to tell you that they haven't . If they should suddenly stop doing so, its up to you to draw your own conclusions as to why. That seems reasonable, even in the context of the madness of federal law. As the text file says however, its always possible that they are being coerced to lie and conti…

I'm curious where the line is drawn. What if they had a different file for every user? What if one were to setup an independent site that reported the presence/absence of these files on 3rd party sites, but explicitly pointed out that the absence of the file, given the history of it's presence, meant there was a high probability that a NSL was served to a specific site, for a specific user...

I would be proud of their efforts to push back against an increasingly Orwellian government.

Re: Federal Judge Finds National Security Letters Unconstitutional, Bans Them

#128

Post by unclebucknasty »

rayiner wrote: post #120
unclebucknasty wrote: post #102

Earlier quoted context omitted.

Yeah, and of course this is just fundamental separation of powers by design, else the government would be exactly a monolithic entity. But, then this type of victory seems rare these days, as the Executive has grabbed so much power since 9/11. Seems the balance has been upset.

The "power grab" since 9/11 is mostly imagined. There is very little the President can do now that he couldn't in 1970, and as a practical matter he can do a lot less than he could in 1955.

Not true. In fact, that's a pretty astounding statement.

Executive power has expanded greatly since 9/11. The PATRIOT Act alone vastly expanded law enforcement capabilities. Law enforcement, of course, being of the Executive and including the DOJ. In fact this thread likely wouldn't need to exist if not for the expansion of NSL under the PATRIOT Act. Many of the rights that we ceded as citizens were given over directly to the Executive.

Remember, the Executive branch is more than just the President, but includes all departments under his purview.

I think if there is a myth it is among those who believe that nothing has changed simply because some of these mechanisms (such as NSL and FISA) did exist prior to 9/11. But, in addition to new powers, it is the expansion, interpretation, and application of existing powers that have also represented a large share of the power grab. This started with Bush after 9/11 with his adherence to the theory of the strong unitary executive. This is when we began to see the letters of his attorneys, which re-interpreted existing powers much more broadly and sought to justify unprecedented Executive actions retroactively. That there was never a trial indicates that they were, in fact, successful in their claims to additional power.

Of course one can also point to launching pre-emptive wars as an unprecedented power grab--perhaps of the highest order.

And, essentially, these powers continue to expand under Obama, up to and including the remarkable justification of drone strikes on American citizens.

Re: Federal Judge Finds National Security Letters Unconstitutional, Bans Them

#129

Post by SoftwareMaven »

ajross wrote: post #117
InclinedPlane wrote: post #103

Earlier quoted context omitted.

That's not the important part here. If two parties go to court to resolve a dispute over the legality or constitutionality of something that's normal. What's quite unusual is the DoJ attempting to deny the ability of telcos to use the court system at all. As an analogy imagine that you've just been arrested by a police officer and you are sitting in a dark, windowless room in handcuffs. The officer comes in and you s…

The important difference here is that the DoJ made that argument before a court and didn't decide for itself in a "dark, windowless room". You're invoking an image of unfettered power that doesn't match reality. This was a law suit, by definition it was going to be settled by the judiciary, not the DoJ.

I think the chilling thing is that, right or wrong, many people believe the JD thinks it ought to have those kinds of powers. Any move it shows that looks like they are trying to actually grab it ("You aren't allowed to contest an NSL that way.") makes people uncomfortable.

I do agree that the system, so far, is working as designed, and it is just appearances that are causing discomfort.

Re: Federal Judge Finds National Security Letters Unconstitutional, Bans Them

#130

Post by macchina »

fnordfnordfnord wrote: post #110
mrich wrote: post #91

Earlier quoted context omitted.

Kudos also to the unnamed telecom company that went out of their way to fight this, and the EFF for fighting the good fight. Don't forget to donate to them.

Credo mobile, it's in the article.

Yeah, Credo is sort of a bizarre little company. They created a Super PAC to oppose tea party candidates and to support public financing of campaigns, i.e., outlawing Super PACs (they were a total anomaly in this regard). In 2011, they received one of those so called "national security letters" and just completely stonewalled the FBI. Thank god for this one activist mobile carrier or this case would've probably never happened.
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