EFF Wins Battle Over Secret Legal Opinions on Government Spying

https://www.eff.org/press/releases/eff-wins-battle-over-secret-legal-opinions-government-spying

by declan • 11 years ago

582 62 11 years ago

rayiner2• 11 years ago

This is really wonderful work by the EFF. Legal opinions are not dangerous. They don't disclose the locations of undercover agents or anything like that. It's a contempt to the legal profession to keep them secret so that their reasoning cannot be scrutinized by courts. A lawyer's job is to make the best possible argument for her client's position, but if the court says she's wrong--and it's within the court's sole provenance to say what the law is--then she must acquiesce.

shmerl• 11 years ago

Legal opinions are not dangerous.

They are dangerous for those who prefer to keep society in the dark about their questionable practices.

sitkack• 11 years ago

The U.S. Department of Justice today filed a motion to dismiss its appeal of a ruling over legal opinions about Section 215 of the Patriot Act, the controversial provision of law relied on by the NSA to collect the call records of millions of Americans. As a result of the dismissal, the Justice Department will be forced to release a previously undisclosed opinion from the Office of Legal Counsel (OLC) concerning access by law enforcement and intelligence agencies to census data under Section 215.

By the government backing out, it _doesn't_ set legal precedent for the release or prevention of secret ruling. They lost a battle to continue the war.

spiritplumber• 11 years ago

If this can be iterated, then the good guys will win.

nitrogen• 11 years ago

Sometimes I wonder if the government should be required to follow all cases through to a court ruling, so that precedent can be established when appropriate.

Quanticles2• 11 years ago

The ability of the public to challenge the government in court and win on an issue like this is a large part of why America is so successful - the citizens are what removes government rot and keeps the system running well.

thinkling• 11 years ago

Oh how I wish I agreed with that. I recognize the huge value of a healthy justice system, but at the same time (a) there's so much we still cannot get through this type of legal process (National Security Letters, anyone), and (b) there's so much systemic rot that cannot be addressed this way (e.g., campaign financing) or in any other way that seems tractable to me.

Normati• 11 years ago

It's quite tractable, stop voting for the same two parties that keep causing the problems over and over again. The trouble is, most of your voting neighbors don't mind so they perpetuate the problem - there's the downside of democracy, two wolves and a sheep.

shard972• 11 years ago

I wouldn't call this case much of a success just yet. It shouldn't take 4 years to get a legal opinion on currently enforceable laws.

jriordan2• 11 years ago

Here's why census data is relevant: If you receive an extended survey from the U.S. census, you are legally required to fill it out with all sorts of personal data. If you don't return it, a census rep will hound you until you do.

The "Privacy Policy" for this data is on the U.S. Census website here:

http://www.census.gov/about/policies/privacy/data_protection...

Note the statement that "the statistics we release do not identify individuals or businesses".

During the last census, it became pretty obvious that this would be an effective way for the U.S. Government to compel information from people who were suspected of something. Section 215 of the Patriot Act, after all, gives the government carte blanche to obtain any "tangible" thing.

IMHO... the interesting questions to ask when this legal opinion is released are:

1. Was there ever any accuracy to the U.S. Census "Privacy Policy"? Were the privacy policies of the U.S. Census misrepresented to the public, and in particular to those who were required to complete an extended survey?

2. Does the legal opinion address the "third-party doctrine" when the information provided is provided under legal compulsion, and in particular with potential (if commonly unused) penalties for non-cooperation?

A very interesting test case would be for someone to sue the government, in light of the upcoming 2020 census, to test the constitutionality of the criminal liability for not completing the extended survey in light of the government using the information provided for potential law enforcement purposes. It should be easier than usual to establish standing since anyone can be forced to complete one of these extended surveys.

orblivion• 11 years ago

If you don't return it, a census rep will hound you until you do.

In theory.

jriordan2• 11 years ago

And very much in practice. Census reps -- all those temp workers that provide a reliable employment spike -- are instructed to pay multiple home visits to anyone who hasn't completed a questionnaire, extended survey or not. They are also instructed to remind holdouts of criminal liability for not responding. And they do!

Also census reps must take an oath to not disclose individual information:

http://www.census.gov/acs/www/about_the_survey/oath_nondiscl...

How this comports with Section 215 access to individual data will be interesting to see.

mirimir• 11 years ago

    Do I have to respond to the American Community Survey (ACS)?[0]
    
    Yes. You are legally obligated to answer all the questions, as accurately as you can.
    
    The relevant laws are Title 18 U.S.C Section 3571[1] and Section 3559,[2] which amends Title 13 U.S.C. Section 221.[3]

As I read that, it's an infraction, with a fine of not more than $5,000 and/or imprisonment of five days or less.

[0] https://askacs.census.gov/faq.php?id=5000&faqId=7455

[1] http://www.gpo.gov/fdsys/pkg/USCODE-2010-title18/html/USCODE...

[2] http://www.gpo.gov/fdsys/pkg/USCODE-2011-title18/html/USCODE...

[3] http://www.gpo.gov/fdsys/pkg/USCODE-2011-title13/html/USCODE...

mapt2• 11 years ago

The federal laws regarding US Census privacy-breaching disclosures are stiff, being substantial felonies enshrined in statutory law, not just a nonbinding "policy" or an informally-binding "regulation" or a downright insulting backroom "interpretation". They may conflict with privileges people assume under Section 215 of the Patriot Act, but they were not repealed with the passage of the Patriot Act. They are explicitly and repetitively opposed to the contents of the Census surveys being used against the respondent in any law enforcement capacity. In a talk I attended, the ranking US official in charge of the Census at the time, Rebecca Blank, fielded questions incredulous of this point. The cost of being able to collect the data credibly is not being able to use it for any legal purpose in the context of the individual.

Census officials, employees, or associates who cooperate with the NSA on breaching privacy need to go to prison under these provisions for them to mean anything; They have always pitted the Census against other agencies that would like to feast on that data. The laws are not required to protect against Amazon marketting, they are required to protect against the IRS, FBI, DEA, ICE, NSA, et al, and ensure that the Constitutional duty to enumerate the populace cannot be contravened by the respondent's fear of repression. Perhaps the Patriot Act immunizes the FBI from asking, but if it immunizes the Census Bureau from answering, we might as well not have a Census Bureau at all.

An intelligence agency that keeps a list of demographic minorities for the purposes of spying & persecution is Holocaust-precursor-grade stuff, and something we have fought against for most of our existence since our inception as a country.

sounds• 11 years ago

I fortunately (or unfortunately) was the target of one of the "extended survey" forms in the last US Census.

I ignored the mail. A Census worker came to my address and I would not let him in, multiple times (the first time, he was without any ID).

Fortunately for me, there is a way for the Census worker to complete each blank on his form with "declines to answer" (he did it by pressing Shift-F11 if that helps you).

Of course, that is at the whim of the Census Bureau, and is not the same as legal protection against Census surveys. In other words, I ultimately sat down with the Census worker and we went through the questions outside my address. I had him press Shift-F11 for each answer, he thanked me for my time, and that was that.

It helps to be courteous and considerate (I offered him a cold drink). It probably made the difference in getting him to admit there was a Shift-F11 option.

Pinckney• 11 years ago

That would all be more reassuring if the Census Bureau hadn't assisted in rounding up Japanese Americans during WWII. Whether or not intelligence agencies track minorities now is irrelevant. If Congress ever decides all Arab Americans, or Japanese Americans, or Mexican Americans, or any other hated minority de jour, are a threat to National Security, they'll repeal the laws protecting census data again, and the FBI will have those records within days.

hackuser3• 11 years ago

The federal laws regarding US Census privacy-breaching disclosures are stiff

So are those for torture, domestic spying, and many other things. It is well established at this point that the U.S. government will not hold its officials accountable, except for leaking information to the press. In other countries, presidents go on trial (Israel and France come to mind); it's unthinkable in the U.S. Even Nixon was pardoned.

taltman1• 11 years ago

An intelligence agency that keeps a list of demographic minorities for the purposes of spying & persecution is Holocaust-precursor-grade stuff

Exactly. And that's how Jacob Appelbaum sees it too:

“There is just a very real historical awareness of how information can be used against people in really dangerous ways here,” Poitras says. “There is a sensitivity to it which just doesn’t exist elsewhere. And not just because of the Stasi, the former East German secret police, but also the Nazi era. There’s a book Jake Appelbaum talks a lot about that’s called IBM and the Holocaust and it details how the Nazis used punch-cards to systemise the death camps. We’re not talking about that happening with the NSA [the US National Security Agency], but it shows how this information can be used against populations and how it poses such a danger.”

http://www.theguardian.com/world/2014/nov/09/berlins-digital...

asoplata• 11 years ago

Do they have the mathematical power to say it's unidentifying information? Is it just that that information, on its own, isn't identifying, or is the test that, with all the other information on the internet, it's still not identifying?

snissn• 11 years ago

Is your comment directly relevant to the posting or just tangentially?

Asparagirl• 11 years ago

There's a long-standing loophole in the census: there is no way they can make you reply to the questions accurately. Tens of thousands of women repeatedly lying about their age on census forms are an easy testament to that fact, several of them in my own family. And a long-form census form can be filled out by anyone in the household, not per-person. When I was in college, my off-campus house got the long-form for the 2000 Federal Census and God only knows what my roommate who got the mail that day wrote down for answers about the other three of us. Guess I'll find out details in 2072.

msabalau• 11 years ago

If you found this encouraging, remember that donating to the EFF is a nice way to show appreciation. You can also set them up to benefit from amazon.smile if that strikes your fancy.

guiambros• 11 years ago

Great tip, thanks! Didn't realize EFF was one of the options.

I'll alternate between my current choice on amazon.smile, and EFF, besides the direct contributions.

mkal_tsr• 11 years ago

Piggybacking on this...

If you shop with Amazon.com, you can use the subdomain,

smile.amazon.com

to donate to your favorite charity, of which EFF is a part! So, if you'd like to 'passively' donate to the EFF, you can change your smile.amazon.com settings (and ensure you shop/checkout w/ the Smile subdomain) and a portion of your purchase will go to the EFF.

There are many organizations and charities that are a part of the Smile program, so choose whichever you'd like to support.

Octokitty• 11 years ago

There's also a service called "Igive" which is even better & works with over 1000 different online merchants. Each merchant supposedly donates a percentage of your purchase to the cause you've chosen, which varies merchant to merchant. I've seen some who do as high as 20% while a majority are somewhere between 2-10%. Easy to use & much easier to add a nonprofit to if it's not already a choice. I was able to add Erowid & I'm not affiliated with them in any way. They have a great directory of all the supported merchants & even a discount/coupon code section. I'd be surprised if EFF wasn't already on it, but it could easily be added & you could use Igive to support them every time you shop online, which I think is awesome.

diafygi• 11 years ago

Here's the link: https://eff.org/donate

I would highly, highly recommend that you sign up for a recurring monthly donation of $10 or more. It's the cost of Netflix, but infinitely more valuable.

coldpie• 11 years ago

Indeed. Non-profits find recurring donations highly valuable, because it lets them make plans for the future based on reliable income.

hackuser3• 11 years ago

donating to the EFF is a nice way to show appreciation

Showing appreciation is a minor detail (sorry to take your wording so literally; I'm just using it to make a point). This is essential work for everyone and for our democracy. Donating to and supporting the EFF (or similar organizations, if you don't happen to agree with the EFF) is a responsibility; it's doing (part of) your share.

The greatest problem in our (and every) democracy is not those who actively oppose progress, but the great majority who sit around and do nothing.

(The upside to that is, if you do get off your ass, then you have greatly disproportionate power over your community and nation. An organized, active minority can be very powerful -- look at the Tea Party, which I think only 10% of American support but which, by being very active and by being almost 50% of GOP primary voters, has great influence over the entire nation.)

rayiner2• 11 years ago

24% support the Tea Party: http://www.gallup.com/poll/177788/tea-party-support-holds.as.... Peak was over 30% in 2010-11, where they had a major impact on the Republican primaries.

diminoten2• 11 years ago

I cannot support the EFF as long as they willfully and intentionally misrepresent basic facts about issues they're involved in.

The EFF's positions on both net neutrality and CISPA have been intentionally misleading, and until they correct their stance I will not consider it my "responsibility" to support them.

crystalarchives• 11 years ago

I highly second using smile.amazon.com to do your online shopping and selecting the EFF (or ACLU) as the beneficiary. There's no change in prices for you; as a result, Amazon only donates 0.5% but every little bit helps.

aaron_m04• 11 years ago

Winning battles like this doesn't mean much as long as whistleblowers are thrown in jail and ignored by major US media outlets.

HCIdivision17• 11 years ago

But it means significantly more than nothing. Incremental improvement matters, and each success paves the next step toward the big important goals. There isn't a magic switch to just flip this enormous machine on its head. It's a crude, long, and brutal slog beating back the nonsense and cruft built up allowing such personal liberty injustices, and this is just another step.

You can't protect whistleblowers if you can't know about them or the reasons they were thrown in jail. This is a step to getting that information and working on a legal vaccine. (IANAL, but I am a cautious optimist.)

junto• 11 years ago

One small step at a time.

The Berlin Wall was not felled by bombs and guns, but the slow attrition of wall by the will of the public (and mistake over travel permissions by a civil servant). ;-)

sbt• 11 years ago

I've never donated money to a political organization before, but I started an annual gold membership with the EFF. Initially I was sceptical, because I don't want to meddle in US politics as a non-US citizen. But these are global problems and the EFF does have a global agenda. I'm also very impressed with the work they do, even on smaller things like Privacy Badger. I encourage everyone concerned with privacy to pick up their bank card and chip in. We need to make this organization as strong as it can be. Congratulations to the EFF.

Aoyagi• 11 years ago

I'm curious, does EFF fight for the global "internet freedom" or just for American one? I know those two are tied, but they aren't the same.

eukaryotia• 11 years ago

The freedom will trickle down.

jessaustin• 11 years ago

USA is arguably the greatest threat to global internet freedom, although in specific locations there are other threats.

msg• 11 years ago

https://www.eff.org/issues/international

Asked and answered. They are for everyone.

patronagezero• 11 years ago

They're a facade, a ruse to convince the american's that they still have a say in the matters of the US Government. This should have been obvious when they took the hot air of their contributors and flew it over the NSA HQ.

EFF Wins Battle Over Secret Legal Opinions on Government Spying

Related Stories