Judge orders Google to comply with FBI's secret NSL demands

http://news.cnet.com/8301-13578_3-57587003-38/

by declan • 13 years ago

196 151 13 years ago

news.cnet.com

The most insidious thing about this is that the government is probably precluded from collecting the kind of information about us that companies like Google and Facebook routinely gather. But as long as someone else has already done the work, the government can just demand the information.

Bosence• 13 years ago

I have never thought about it that way before.

magicalist2• 13 years ago

To be fair, that's literally the point of a search warrant (/subpoena/"demand letter"). It's a bit like saying that the phone company has already done all the work identifying who you call. Well, yes, that's what you use them for. I assume your point is more that we use these services for more than any one service in the past.

The real issue in this case, however, is that the FBI can request the data and no one will ever know that they did. That can only lead to abuse. How many of those 192,499 requests were actually used to fight terrorism? Well, we can't find out...

axus• 13 years ago

National Security Letters are warrant-less. A search by the government is [should be] only legal if it meets the conditions of the Fourth Amendment.

tomkarlo• 13 years ago

Does anyone know if they're actually precluded from this, or if it's just a matter of it being far more convenient to NSL a company that already has the data? As least in the latter scenario, they're not simply collecting data on everyone all the time.

OldSchool• 13 years ago

All they would have to do is go through traditional judicial procedure to gather information and nobody would complain. That shouldn't be too much to ask.

dmix2• 13 years ago

What's good for the goose, is good for the gander.

mindcrime2• 13 years ago

In a free and open society, we can't accept a government which operates in secret. If our government is to be accountable to the people, it needs to be transparent in what it's doing and how it's doing it. Just crying "national security, national security" doesn't magically make it OK for the government to do whatever it wants.

I've often considered that if I were in a position to receive one of these, that I'd turn around and publish it on the web immediately after receiving it, and just accept the consequences. If that day ever comes, I hope I have the courage to go through with it.

mhurron• 13 years ago

> In a free and open society

The people do not seem to want to live in a free and open society.

mindcrime2• 13 years ago

The people do not seem to want to live in a free and open society.

Yeah. That makes me very sad. :-(

Xanza• 13 years ago

Agreed, unfortunately.

forgottenpaswrd2• 13 years ago

Cynical view, most people can't understand what a computer is or what it could do.

Most people can't understand how easy is for the government to access the pictures they post on facebook.

This does not mean they don't care.

snowwrestler5• 13 years ago

If we posit that society should be free and open, then what is the problem with the government obtaining this information in the first place?

By analogy: I walk down a public street freely and you can take my picture freely, and follow me, and make notes about my whereabouts. You're under no obligation to notify me that you're collecting that information about me, since I'm moving in public.

Not that I'm arguing in favor of this government power. I'm just saying that I think the heart of the matter is that we feel that some aspects of society should not be free and open. There should be a significant legal burden on the gathering of certain information.

dmix2• 13 years ago

I love looking up these judges track history with technology:

http://en.wikipedia.org/wiki/Susan_Illston

> Sony v. Hotz

> Currently, Illston is the presiding judge in Sony Computer Entertainment America LLC v. George Hotz, et al.,[13] in which Sony claims that Hotz's jailbreaking of the Sony PlayStation 3 violates the Digital Millennium Copyright Act.

> She has granted Sony permission to track as much information as possible about those who had seen a private YouTube video about the jailbreak and to read their comments, plus obtain access to IP addresses, accounts, and other details of visitors to sites run by Geohot. The access granted by Illston extends even to those who had not downloaded the jailbreak code.

So clearly her interest in information privacy is non existant.

rayiner12• 13 years ago

The context of the order in Sony is with respect to discovery in an ongoing trial. There is very little "information privacy" with respect to the power of a court to seek out evidence in a trial, from anyone that might have it. See Elkins v. United States ("The pertinent general principle, responding to the deepest needs of society, is that society is entitled to every man's evidence.").

But that's a very different issue than privacy rights in general.

venomsnake9• 13 years ago

The access granted by Illston extends even to those who had not downloaded the jailbreak code.

I would say this puts it a bit out of the comfort zone.

rayiner12• 13 years ago

Relevant: "Illston, who is stepping down from her post in July, said another reason for her decision is her desire not to interfere while the Ninth Circuit Court of Appeals is reviewing the constitutionality of NSLs in an unrelated case that she also oversaw.

In that separate lawsuit brought by the Electronic Frontier Foundation on behalf of an unnamed telecommunications company, Illston dealt a harsh blow to the bureau's use of NSLs."

DanielBMarkham• 13 years ago

The sad thing here is that there is a real war on terror, no matter what you hear. There are actual violent-minded individuals that the state has an obligation to track and protect us from.

But the powers granted to the state to do this are humongously broad. It's ludicrous to have the FBI be able to write letters and retrieve any of your online activity it wants -- all without you knowing about it. The IRS has even more power. It can pull your records without the NSLs. All you have to be is "interesting" to them. (Don't know if they've exercised this power yet, but it's coming)

So when corporations like Google complain, out trots the assistant director to give classified testimony about all these evil folks in the world. Yes, sure. But one doesn't justify the other. I'm really happy somebody is doing something about bad guys right now. What I worry about is a few years down the road when all of this security state nonsense is used for political reasons.

Some people think you have to be afraid of the government knowing too much about you. Some people think you have to be afraid of corporations knowing too much about you. Some people worry that we can easily find out too much about just about anybody (facial recognition Google glass tied back to something like Spokeo isn't far off). But it's not an either-or choice. All of these factors work together, as we see in this case.

This is not going to end well.

betterunix8• 13 years ago

"There are actual violent-minded individuals that the state has an obligation to track and protect us from."

It is hard to say, given the secrecy that surrounds all this. Who are our enemies right now? Who is the government trying to protect us from? We are meant to take it as a given that there are terrorists out there and that the government is actively protecting us from them -- yet so far, we have only heard about plots that either succeeded, or that never had a realistic chance of succeeding.

We need to know the danger and how it is being addressed. If the government will not even tell us who is a suspected terrorist and why they are under suspicion, we have no choice but to assume that they are abusing their power.

diminoten5• 13 years ago

Do you deny the theoretical possibility that somewhere on this planet there are people actively attempting to hurt people in the US?

Do you further, or alternatively deny that alerting those people to the fact that the FBI knows about them would harm the FBI's ability to stop them from harming people in the US?

This should be an argument of degrees and to what extent, not an argument about the existence of a threat in the first place, or that the government should be absolutely open about everything. Such a position is quite extremist and completely impractical.

walshemj6• 13 years ago

Because its a "wicked" problem to put it in SV speak how do you know out of say 10k Suspects who is going to go nuts and behead a squaddie in broad daylight - I am sure that the FBI NCIS etc are worried that something could happen in the USA

Unfortunately you have to be able to monitor suspects and having some judicial oversight is the best solution we have come up with.

The problem is I think in the US that you have the FBI which have mostly a traditional policing role as well as CT and security so you get procedures meant only for serious cases available to you average copper.

Might have been better to split the FBI in two and have a federal police force and a separate version of MI5 - you have so many intelligence services whats one more :-)

redblacktree2• 13 years ago

> What I worry about is a few years down the road when all of this security state nonsense is used for political reasons.

Why do you think this isn't happening presently? Are you aware of the IRS's targeted scrutiny of certain groups applying for 501c3 status? This does not directly relate to the NSLs being discussed here, but it is an indication of how politics enters government agencies.

Frankly, I would be surprised if these NSLs aren't currently being used for political ends, by whomever has access to their use.

sinnerswing• 13 years ago

Nothing new here.

Anyone remember this? This was 3 years ago.

"A US government-mandated backdoor allowed China to hack into Gmail"

"In order to comply with government search warrants on user data, Google created a backdoor access system into Gmail accounts. This feature is what the Chinese hackers exploited to gain access."

http://www.cnn.com/2010/OPINION/01/23/schneier.google.hackin...

DannoHung• 13 years ago

Yeah, but those were groups who have as one of their political purposes tax avoidance...

I mean... it's like sending a police officer to a store where someone has threatened to rob it beforehand.

If the FBI wants to investigate someone who has said they're determined to kill people with a bomb, I don't have a problem with them surveiling that person.

SolarUpNote• 13 years ago

This is what I'd worry about:

If I attended a protest like Occupy Wall Street or something, and gmailed my friends about it. Then, a year later, was told that I can't board an airplane because I'm on a no-fly list.

scotch_drinker• 13 years ago

When you have a war on amorphous things like drugs and terror, the tactics, tools and strategies of the people waging said war will necessarily be amorphous as well. The war is broad, hence the tactics are broad. We as citizens should define what the war is and thus be able to define the tactics. Until we decide that the war on Terror is ridiculously broad in scope, we will continue to face tactics by our own government that are infringements on our rights.

theklub• 13 years ago

The easier its made to track people the fewer trackers should be needed and the process should become far more transparent. Of course everything I hear about our "homeland security" leads me to believe the exact opposite is true.

forgottenpaswrd2• 13 years ago

"There are actual violent-minded individuals that the state has an obligation to track and protect us from."

...And some of them are IN the government. Where do you think Hitler came from? He won a democratic election. Also Mussolini. Where Stalin came from? From the government itself.

Government (centralized power) attracts power freaks as dung does to the flies. The mechanism democracy has for protecting itself is people's supervision.

They are destroying the feedback look of people controlling power. Out of sight, out of mind in democracy means there is no democracy at all, as people can't see what they supposedly control.

Most people don't object the government tracking individuals, what people object is the removal of the knowledge about it. If they inspect my house, I know it, why I can't with my digital info?

pathy• 13 years ago

Hilter's rise to power was through an election but prior to that there was lots of violence etc caused by the Nazi's so it shouldn't have been any surprise that he was a violent individual.

Mussolini led a coup d'etat to take a power.

And Soviet hardly had a peaceful start and Stalin played a part in that.

None of these exactly popped out of nowhere from within the government.

Last I checked none of the current 'western' governments rose to power via fear and intimidation.

That said, yes power attracts people who want power. I can't dispute that.

walshemj6• 13 years ago

No he got the enabling act passed by arresting and killing the opposition deputies I am sure that roberts rules of order don't suggest murder as valid form of political action :-)

ChuckMcM• 13 years ago

Its a question of response. And there are two broad policy approaches, both based on the transparency; In the first there is full transparency for the state and full opacity for the people. This is the current policy of the US Government and attempts to both mitigate conspiracies by making them hard to maintain, and enhance discovery by detecting people trying to maintain cover. In the second there is full transparency for both the state and the citizens (which is to say it goes both ways). This enhances discovery (both inside and outside the state) but also makes operations harder (on both sides).

It is asserted that the first policy converges on a totalitarian state solution, it is also asserted that the second policy converges on anarchy. As neither of those end points are stable, I don't agree that they are convergent so much as inflection or transition points.

Lagged2Death• 13 years ago

What I worry about is a few years down the road when all of this security state nonsense is used for political reasons.

The use of the public's fear of terrorism to push for new "security" powers and other unrelated goals -- what I would call "used for political reasons" -- started within hours of the 9/11 attacks. Worrying about "a few years down the road" is decades too late.

http://www.cbsnews.com/2100-500249_162-520830.html

http://en.wikipedia.org/wiki/Saddam_Hussein_and_al-Qaeda_lin...

jacquesm3• 13 years ago

> The sad thing here is that there is a real war on terror, no matter what you hear.

No there isn't. That's the whole trick. It's a mind thing, as long as enough people believe there is a war on terror there is a war on terror, when they stop believing they'll resort to good old police-work and the judicial system to back it all up.

See Spain and the bombings there, the UK and the bombings there, India and the bombings there and so on. Everybody else seems to treat it as a series of acts by loosely organized and funded individuals that don't seem to have a common goal or even coherency about their deeds.

And the best bit: it doesn't work. You can't declare 'war' on lone wolves or small cells if they're careful enough. Any idiot (you, me, any other visitor here) could turn around and become a terrorist tomorrow, there would be no other outward distinguishing factor, just that bit that flipped in our heads. And by the time there would be an outside observable factor (objects going 'foom') it would be way too late.

venomsnake9• 13 years ago

I think the best summary of the war on terror can be found in the fact that the US is forcibly feeding the "terrorists" in Guantanamo while parts of the government are trying their best to cut the money for food stamps for people that are starving.

threeseed3• 13 years ago

    resort to good old police-work and the judicial system to back it all up.

The problem is that many countries where we have radical militants operating have (a) porous borders and (b) an inadequate police/judicial system. So unless you want another situation like in Mali where there was free reign for militants then you do need the military involved hence a war on terror.

And that is the crux of the issue. When you look at weak states like Mali or Nigeria do people really want a hands off approach ?

youngerdryas9• 13 years ago

They are not militant lesbians or Eco-terrorists, they are Muslim fascists who will be killed at our discretion, regardless of any weaker groups consternations.

snowwrestler5• 13 years ago

The "war on terror" is actually a war against a specific few radical so-called-Islamist groups. The intelligence services of Spain, the UK, and India (among many others) are working closely with the U.S. intelligence services to wage it effectively.

analyst74• 13 years ago

> What I worry about is a few years down the road when all of this security state nonsense is used for political reasons.

Everything is political, every decision that affects more than a handful of people are more or less political decisions.

There will always be some people whose freedom and wills be violated, whether through vote of majority or tyranny of the few.

In the eyes of those who truly believe freedom for everyone, the reality is bleak.

jrs235• 13 years ago

Perhaps if these individuals were so dangerous, it would actually benefit everyone if they knew they were being watched and that not so many of these NSLs had the gag order attached. Just [the individual and even public] knowing the govt might be on to their activities might be enough to stop it in its tracks. Except then this creates the culture of fear and suspicion... welcome back 1984 references!

declan7• 13 years ago

A counterargument: "You’re Eight Times More Likely to be Killed by a Police Officer than a Terrorist" http://www.cato.org/blog/youre-eight-times-more-likely-be-ki...

In reality, you're more likely to choke to death on your own vomit than be killed by a terrorist. You're 1,000 times more likely to die in a car accident than be killed by a terrorist. And so on. And one reason why the U.S. has been targeted by more Islamic terrorist attacks than say, the liberal democracy of Switzerland, is that we meddle far more in the Middle East countries that terrorists call home. It's policy blowback.

On HN, especially, we should be able to do simple statistical calculations of what we really should be worrying about. You're more likely to die from falling in the shower than being eaten by a shark, but one threat gets a lot more media coverage than the other.

It is true that some fraction of terrorists would happily kill hundreds of millions of Americans, if they had the ability. So it makes sense to concentrate on existential WOMD threats, improve cargo container scanning for suitcase nukes, place radiation scanners in major population centers, fund defenses against biological agents, etc.

To its credit, FedGov is doing that. But it's also doing far more than that, domestically and abroad. HomelandSec "anti-terror" grants have been used to fund cultural centers, zombie apocalypse demonstrations, armored vehicles for one-stoplight towns, snow-cone machines, etc. And people involved in the HomelandSec apparatus have incentives to exaggerate because their salaries or funding levels or relative prominence are tied to the perceived nature of the threat.

snowwrestler5• 13 years ago

Beware the framing argument. If privacy advocates get stuck arguing about whether people "should" worry about terrorists, they are going to lose, because people do worry about terrorists. They've demonstrated it repeatedly in polls and elections.

javajosh• 13 years ago

The mechanism for "watching the watchers" are the other two branches of government. One of the most worrying things I've seen is that the judicial branch seems unwilling to really oversee the executive branch. It's like judges want to abrogate their responsibility to check executive power. Are warrants really that much of a headache? Are they really that slow? Do the judges think that it matters that little to the public and the risk of harm that low?

saalweachter• 13 years ago

Responsibility is a headache. Even better than covering your ass is not having to.

Judges should be issuing warrants for searches, and denying them when appropriate. But what if a judge appropriately denies a warrant for an overly broad search with no evidence of wrong doing on the part of those being searched, and then a building is blown up and it turns out the overly broad search would have caught the bastard? The judge acted appropriately, but he'll be crucified none-the-less.

Too many people don't want to take the responsibility for doing the right thing and having bad come of it, so they'd rather do nothing, or even the wrong thing.

rayiner12• 13 years ago

It's not because judges think warrants are a headache. It's because judges are deathly scared of being perceived as "judicial activists." The story of the judiciary of the last 20-30 years is the story of the backlash against the judiciary for liberal activism during the 1960's and 1970's, and a subsequent tendency to defer to the political branches whenever possible.

As against the other two branches, all the court has is political capital. Nothing stops the President or Congress from just ignoring a court decision. The judiciary spent tremendous political capital during the civil rights era, and doesn't have enough left to battle the current era of overreaches in the name of national security. And in any case, national security was always one of the areas in which the executive branch was considered to be supreme over the other two branches.

declan7• 13 years ago

Judges don't wake up in the morning and say, "Well, I would like to do the right thing and declare this surveillance unconstitutional, but there was that Brown v. Board of Education sixty years ago, and so I'm going to punt!" Especially when you have tenure for life and -- in the case of the judge mentioned in my article that started this thread -- are voluntarily retiring in a month anyway. (Even if you get removed from office, which of course never happens, you'd get 5x - 10x your salary in the private sector.)

In general, lower courts follow the lead of appellate courts, which in turn follow the lead of the Supreme Court. And on constitutional issues, those justices don't like to get too far out in front of what they believe the national consensus to be. That's why you have toothless rulings like U.S. v. Lopez, a commerce clause case that conservatives initially applauded, only to have Congress slightly tweak the law without complaint from the courts.

Spooky23• 13 years ago

Judges can only act retrospectively. The Supreme Court cannot wake up and say "X is unconstitutional". They look at the issues as they apply to a particular litigation.

The laws that brought NSLs and similar things were designed to make it incredibly difficult and expensive to appeal in a court. The alternative to warrantless searches has been a top secret court dedicated to National Intelligence issues that approves 97% of warrants. The PATRIOT act laws circumvented even that nominal oversight.

declan7• 13 years ago

FYI, folks, I just posted a new article about a different lawsuit in New York in which the U.S. Department of Justice is asking a asked a Manhattan judge to grant its "petition to enforce" the FBI's NSL: http://news.cnet.com/8301-13578_3-57587005-38/justice-depart...

Discussion thread: https://news.ycombinator.com/item?id=5799541

SideburnsOfDoom2• 13 years ago

> The sad thing here is that there is a real war on terror

Yeah. A pity there isn't a war on furniture too. http://www.theatlantic.com/international/archive/2012/06/ame...

twoodfin2• 13 years ago

My god those comparisons are stupid. Was the U.S. getting involved in WW2 a severe overreaction since Americans were massively more likely to die of polio or black lung than Japanese or German bombs?

SideburnsOfDoom2• 13 years ago

A foreign military's bombs were intended as a prelude to invasion or destruction of the entire military capacity. A terrorist attack is a prelude to ... nothing much.

bloaf• 13 years ago

What is to stop Google from simply giving the FBI the runaround for as long as it takes to get the legality sorted out. They could agree to give them the data and then cite technical difficulties, bureaucratic red tape, and other mistakes to stall for a year or two.

declan7• 13 years ago

Contempt of court.

coldcode• 13 years ago

I wonder what would happen if Google told the FBI to bugger off and printed the NSLs on the web.

MichaelGG• 13 years ago

Fines, criminal charges?

More importantly, the USG could find evidence against the individual, even invent something or help the target commit a crime, then "legitimately" say "See, Google is directly protecting real terrorists", which would help the USG far more than Google giving in to the NSLs.

walshemj6• 13 years ago

two words Anti trust :-)

rsync• 13 years ago

I'll just leave this right here...

rsync.net Warrant Canary - http://www.rsync.net/resources/notices/canary.txt

declan7• 13 years ago

Contempt of court. Also, even though some FBI NSL demands may improper, others would have a valid anti-terror component, and no company I'm aware of would intentionally interfere with such an investigation.

SeanDav• 13 years ago

The US government is missing the mark so completely, it is scary.

Does anyone here think that actual, real terrorists are going to be discussing their plans using anything other than highly encrypted protocols, along with code words?

These measures are absolutely of no use in catching anyone that is more intelligent than a gnat that actually wants to harm the US.

alan_cx2• 13 years ago

I'm right with you in spirit, you should be 100% correct. But these terrorists do keep using electronic communications.

I don't think any one serious and vaguely intelligent planning a major crime would do so using electronic communications. Surely every one now knows that it is iffy at best, and many believe that it is basically easily open to the authorities at a whim. But over an over again, these terrorists and/or their sympathisers do keep using electronic communications, then getting caught. Almost every case I can think of that has ended up in court and is reported on, has a big element of electronic communications evidence. It seems they are indeed as intelligent as that poor gnat, (who is probably asking why he is being bought in to it!!!). But, IIRC, a lot of the terrorists, we are told, are pretty smart people. They are not trailer trash (US) or chav scum (UK), they turn out to be degree level people, or students studying for degrees. Smart people, right?

Ok, a fair number of them expect to die as a result of their terrorist action, but as we saw in Boston, that was not the case for them. But, why risk the "mission" being blown before it happens because of an electronic interception? They then risk doing the time, with out doing the crime.

Worse still, it then gets used to justify the removal of various freedoms and liberty from the average citizen. And so on....

What you are saying should be 100% correct. It really should. But insanely, it isn't.

Quite bizarre if you ask me.

rayiner12• 13 years ago

> Does anyone here think that actual, real terrorists are going to be discussing their plans using anything other than highly encrypted protocols, along with code words?

We keep seeing that a lot of terrorists are quite amateurish.

donrememberpass2• 13 years ago

Is this a good time already to start building service clones from other countries that have a big stamp on it:

"FBI-SAFE! 100% guarantee there's no ~FBI CRAMPS~ on your private communication, photos, locations, likes, etc we respect your privacy and we care for the future of mankind! Want to live in dystopian 1984 future in just about 10 years? We don't, too!

(service hosted and maintained in Brazil)"

walshemj6• 13 years ago

So the CIA station officer has a word with his counterpart - hint south Americas security services don't exactly have a shining record.

donrememberpass2• 13 years ago

Still, that's not the point. The point is that all this madness is so fragile and stupid that it can give lever for digital businesses overseas to have competitive edge on yours by both not being forced to waste resources building backdoors and surveillance into their systems(which also make them less secure) and also by making them have an advantage no USA business will be allowed to have ever, which is to offer privacy. It's probably what MEGA was thinking.

Now when and if this happens the FBI will really see what's 'going dark'. Of course, they have plenty of means to try influencing things their ways but it's utterly unmanageable, if they choose to hack the servers and news break that US Government agencies are hacking into legitimate businesses overseas, it's not gonna sit well with both governments(Brazil, for example, is historically a pacific country that tries to not interfere with anyone, how will you make it into a terrorist country?) and to the general population, they can also do it politically but this won't sit well with the country's population too and are sure to have 'anti-american' vibes increasing, besides that, each country has it's culture and takes on civil liberties(and the chopping of them) and also it's own interests and industries it allows to influence it's politics, in Brazil that would be Meat, Soil, Mining, Cars industries... and if allowing privacy(or, at least, keeping civilian basic constitutional rights) ends up helping the economy too then it may also be a choice to be considered to support it too, right? Dunno if Hollywood bullshit will stick everywhere, and going heavy-handed on other countries matters are sure to spread the shit, there's plenty of countries in the world.

joyeuse6701• 13 years ago

I fail to see why an NSL is even necessary when a warrant should suffice?

shitlord• 13 years ago

What's with all the knee-jerk reactionary responses (and with all of them repeating roughly the same thing)? Under our legal system, it really shouldn't come as a shock to see how things turned out.

Judge orders Google to comply with FBI's secret NSL demands

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