FBI Kept Demanding Email Records Despite DOJ Saying It Needed a Warrant | Hacker News Reader

FBI Kept Demanding Email Records Despite DOJ Saying It Needed a Warrant

theintercept.com

"In 2008, the Justice Department’s Office of Legal Counsel concluded that the FBI was only entitled to get the name, address, length of service, and toll billing records from companies without a warrant. Opinions issued by the OLC are generally treated as binding and final within the executive branch."

"The FBI has said it disagrees with that conclusion, and interprets the opinion differently, according to a 2014 inspector general report. It sees the question as more of an “impasse” than an actual legal barrier."

It's madness to me that the FBI can just say "na, we see it differently" and until the Supreme Court tells them to stop (and even then?) they'll do whatever they want.

It represents a real failure of leadership on the part of the President if parts of the executive are ignoring OLC opinions.

> It represents a real failure of leadership on the part of the President if parts of the executive are ignoring OLC opinions.

Whatever it might be executive-branch-wide if non-DOJ agencies were doing that, its a failure of leadership within DOJ if entities within DOJ are ignoring OLC opinions. Which is the issue here; the lowest common level of authority between FBI and OLC isn't the President of the United States.

What's the OLC's authority? Is their opinion binding?

It's not formally binding. But the executive is a single entity under the President. Constitutionally, the FBI doesn't have any independence. The OLC is like the executive's in-house legal counsel. One part of the executive ignoring its opinions is like having a division in your company ignoring your legal department's opinions and coming to its own conclusions. It represents a failure of leadership at the top.

> But the executive is a single entity under the President.

Given that Congress constitutionally can, and does, assign functions directly to specific entities within the executive branch, the concept of the unitary executive, while not entirely lacking in validity, is limited even as a description of the Constitutional structure, much less practical and political reality.

> The OLC is like the executive's in-house legal counsel.

No, its not.

Its like outside (advisory but not trial, as the latter function is handled by, well, much of the rest of DoJ) counsel to executive branch entities other than DoJ, which all, in fact, also have their own in-house counsel.

The three co-equal branches of government have the prerogative to independently interpret the Constitution. But Departments within the executive do not stand in the same place as the co-equal branches. They don't get to have their own interpretations of the Constitution--just the executive's interpretation. They do often have their own in-house counsel, but those are generally responsible for Department-specific issues, not generating independent opinions on matters of cross-cutting concern.

To stretch the corporate analogy, it's like a large company that might have regional or divisional legal departments in addition to a general counsel's office. While the divisional departments may have specific roles and expertise, they cannot go their own way on matters of company-wide concern.

Comparing OLC to outside counsel ascribes to departments an autonomy they don't possess. A company is an independent entity with the prerogative to ignore its outside counsel. But agencies like the FBI are not independent. They're mere organizational units of the executive.

If by leadership you mean fire the instigator of the asshattery then I agree with you.

Sure. But failure to fire the people being insubordinate is also a failure of the President's leadership.

The people being insubordinate may well not be political appointees that serve at the pleasure of the President and who therefore could be fired by the President (and, procedurally, the President can't directly institute the processes which would lead to firing them, either), and while the President can fire the political appointees above them, the President can't replace those political appointees without the cooperation of the Senate (unless the opportunity for a recess appointment pops up.)

Failure to fire those political appointees for not firing insubordinates is hardly defensible.

Wenn das der Führer wüsste..

From above, "Opinions issued by the OLC are generally treated as binding and final within the executive branch." So they don't have any legal authority or hierarchy per se since they're two parts of one legally defined branch of the government, but apparently the OLC is supposed to be the authority.

But is the president not in charge of the entire executive branch? If he wanted to fix it, could be not issue binding orders?

I'm not an expert on law by any means, but I think Obama can fix this with an executive order.

At what point will the public realize the truth of rogue agencies and corruption of power in the military and FBI/CIA?

The public realizes the truth. But what can we do as individuals? The best we can do is, what, teach our children the value of philosophy and a common humanity and hopefully have them occupy these leadership roles in a capacity that follows the rule of law and the greater goals?

How do individuals change a system that rewards loyalty, secrecy, and praise to higher ups who run with the status quo way of thinking? Shit, I even recognize that if I was put into a middling position at the CIA/FBI/ETC that I would probably forgo several of my personal moral/political positions to keep and progress in my job.

Changes can come externally through art and civil demonstrations of our power, but really, it may be that our best path is the slow one through education, which is slow, and long, and again, very slow. And very painful.

I think you also have to organize and get money out of and honest people into politics. Just consider Stav Shaffir, who near the end of this video makes some very good points about idealists and their aversion to power:

https://www.youtube.com/watch?v=5eqCprXn_UY

If more people were "more like that", and if more of them would manage the "quantum leap" into serious politics, that would still be slow and painful, but at least more than asking for things or offering facts. Don't get me wrong, that is all very necessary and good, but it's not quite enough IMHO.

>organize

If only there were not an agency dedicated to the disruption of organized opposition.

It's incredibly simple to disrupt emerging organizations in to chaos when you have access to everyone's metadata. You don't have to assassinate anyone, you don't even have to discredit all of the important nodes, although that's a useful tool. Many of the critical nodes won't recognize themselves as such. Divert them to other interests, personal, professional, philosophical/moral or legal... And a movement sputters and scatters in to emephera instead of transitioning in to an effective force for change.

Social judo is vastly more effective than jackboots ever dream of being.

The way modern politics works, it doesn't matter if people realize the truth. Democracy as currently implemented in the USA is broken.

Even if you think the incumbent is doing bad things, we've been conditioned to believe that the "other side" (from whichever tribe you count yourself) is evil and must be stopped at all costs. Thus, you have to vote against that evil challenger. This, of course, gives politicians license to be exactly one iota less evil than the other guy.

Although it's a complex question, I think a lot of the blame can be put on (A) the entrenched two-party system, since there can never a choice other than your team or the evil team; and (B) gerrymandering, so that what choices can be made over candidates happens in the primaries, which means the choice is made primarily by the most hard-core party members.

They're not rogue agencies. They're doing exactly what they have been empowered to do. All these opinions from other parts of the government do that appear to be in conflict with that make it look like the government wants them to stop, so people think that the government is looking out for their well being.

The various TLA's in the US are operating as intended.

This stuff is becoming more and more maddening to hear after my recent FOIA adventures.

I requested this from Chicago's Mayor's office last week:

Please provide to me all communications or records of communication (phone, email, receipts of phone/email, etc) from those in the mayor's office for the below companies. Please limit the search to Oct, Nov, Dec of 2014.

Aura - Prestige Club (of verycoolrooms.com)

Kennealy & O Callaghan

Statewide Investigative Services

Azura Investigations

Their response, which reeks of complete bullshit:

In order to run an email search, the Mayor’s Office needs the names or email accounts that you wish searched. The email system’s tool set cannot identify the department where an email user works, and therefore, a search cannot be based on a department. Parameters that would assist the Mayor’s Office in conducting an email search include: (1) the e-mail address of the account you wish searched; and (2) the e-mail address of each individual’s mailbox, if you seek e-mail correspondence to and from two individuals.

Without email addresses, search terms, or a time frame, the Mayor’s Office would have to retrieve each and every email for every employee from October – December, 2014, which is both unduly burdensome and costly. After retrieving these e-mails, each and every e-mail message a Mayor’s Office employee received or sent would have to be downloaded and reviewed to determine if it is responsive to your request or is exempt from disclosure. If any exemptions were to apply, the Mayor’s Office would need to redact such information. The entire process of retrieval of the emails, finding responsive records, reviewing for exempt information, and then redacting the materials would be onerous.

How do you propose the mayor's office identify senders and recipients from e.g. that law firm without combing through every message? What if their email domain has changed? What if someone used their personal email address? If they left out any records, you could sue them.

The remaining reasons, mainly an inability to filter emails by department, sound normal. If you're designing a database, can you build an efficient index for every possible query? No. The mayor's office has not optimized their records for random people making FOIA requests. Nor should they. I'd rather my tax dollars go to potholes, rather than axe-grinders.

You'll have better luck with more legwork on your end.

I'm not asking for a complicated query system, really. An upgraded version of outlook would probably do the job. Or an email to their IT department who could do it. That's what I ended up doing last time which ended up turning into a year and a half battle to prove that the numbers were releasable under FOIA.

The judge ended up telling them to JFGI [0], since not googling it was costing the city thousands in court fees. That should address your concerns. It probably didn't get me every releasable number, but I'm sure as hell not going to sue and waste another six months. It takes too long to sue, they know it, and it's a huge factor in why this is all so difficult to do.

Please realize that paving the way for others to obtain this data is a huge part of the end goal. In some ways, I'm trying to fix the potholes of FOIA.

[0] "Next, DoIT and its counsel conducted online research on each remaining responsive phone number — in other words,they "googled" each number to determine whether that number was publically listed, and, if so, to whom it belonged."

Edit: Cleaned up (a couple times).

NB: I'm not expecting they'd actually do the below. The political downsides of being efficient in your FOI requests are too great to seriously expect somewhere like the Mayor's office would dedicate effort in to achieving it. But document/record management is not some mystical never before done thing.

Somewhere in the 9.5 million dollar budget of the Mayor of Chicago [1] they could squeeze out $20k for a HP Records Manager setup (or any of the dozen competing software packages) and just blindly catalogue all emails in to it. Even without setting up ANY of the business classification features it makes this kind of search trivial.

Perhaps it could come out of the 1.4 million dollars allocated to the "Innovation delivery team" who "Creates and implements new solutions to improve the efficiency of City government.".

[1] Page 59 Program and Budget Summaries by Department Finance and Administration Program Summary OFFICE OF THE MAYOR (http://www.cityofchicago.org/content/dam/city/depts/obm/supp...)

Obscurity by bureaucracy at its finest. We all do this to some extent in our day to day jobs. Remember that behind these emails are real human beings.

Keep pressuring, keep pursuing, for you, for us. Observe, pressure, and report. Rinse, repeat. There are plenty of us that appreciate your hard work in holding the system accountable. Keep up the good fight ++1

Totally agreed on the points in your first paragraph. I try my best to help them out and stay as friendly as possible. For example, the Department of Finance senior FOIA officer and I are on a "hey man" basis now. :)

Thanks! This all started in November of 2014 and I doubt there'll be an end for a while.

Not to derail too much, but this sort of work is one of the main reasons why I'm in favor of a basic income. It sucks that it's impossible to live freely while doing this stuff, without being a journalist (bad at writing, so my reliance is on other journalists) or without having a stable job. Not having either right now makes me think to go to patreon for "basic income", but that just feels dirty.

A comment from me from below:

"What is the new becomes the old in no time at all. Something will, and realistically has to, fill the void of high level domestic security. And unless the people that make up it are fundamentally different, or unless the structure itself and its system of rewards and punishments are different, we will only repeat history.

Laws and education are our only hope. Right now these two things are time consuming and are full of hardship so much so that the average person has a hard time taking on responsibility in these domains in their daily lives. If we could lesson these burdens for the average person in these areas then I think, I know, that we are really on to something."

If we could limit the burden for people like you then it would be a huge net positive. If we all figure out that basic income is our best bet then I am all for it. I remain skeptical though and think that there are better options in the medium and long term.

You should have given them an explicit list of domains to query for in the headers.

Based on history from previous and successful requests, I shouldn't have needed to. They've fulfilled requests as vague as that in the past.

Submitted two requests two days ago that might be a bit better than providing the domains, though. One for DNS resolution logs of the mayor's office and another for all domains and times for all emails sent from their office. If just one of those are successful, then I don't need to play any more FOIA games with mayor's office.

Sure, I could just submit the same request to their IT department like those two... but, no. I'm getting that information from the mayor's office directly, dammit. :)

DNS resolution logs...

Brilliant. I love you.

Thanks. :) & <3

Do a FOIA request for the staff directory?

That's actually all available at data.cityofchicago.org. My first thought was along that line. Turned out to be about 60 different people, so it was still a bit much.

The casual disregard with which the FBI has always treated the law is disgusting, and unfortunately, the true face of our country.

It surely didn't start in the last decade, and it won't stop this decade, either.

Just look at COINTELPRO in the 1960s:

COINTELPRO (a portmanteau derived from COunter INTELligence PROgram) was a series of covert, and at times illegal, projects conducted by the United States Federal Bureau of Investigation (FBI) aimed at surveilling, infiltrating, discrediting and disrupting domestic political organizations.

Jean Seberg, never forget that name.

The FBI was founded by a man who believed in secretive abuses of power. There will always be those who believe it is their purpose to protect us from ourselves. What those in power don't get is that all suffering can't be eliminated without creating a whole new level of suffering at lower levels of society as a result. Or do they?

Not only that the FBI continues honoring his memory with his name on their building. That they keep up that public honor to his memory is consistent with their continued behavior.

It is sad we continue to elect people that allow that type of thinking to direct behavior of such a powerful organization but it is pretty clear we have elected very few people that are interested in changing the actions they continue to engage in.

It's always tragic when people expect law enforcement to actually obey the law themselves.

It's not just an FBI problem, it's anyone in an authoritarian position, from individuals to entire organizations.

Suppose I'm a user whose information was disclosed by Yahoo! under these illegal requests. Would I have standing against Yahoo!? What about against the U.S. government?

You generally can't sue the government unless it lets you. Sovereign immunity.

https://en.wikipedia.org/wiki/Sovereign_immunity#United_Stat...

or unless you are a multinational corporation.

[1] https://www.theguardian.com/business/2015/jun/10/obscure-leg...

No, that's still a case where the government has agreed that you can sue them. Every government being sued has agreed to investor-state dispute resolution in one or more treaties that they've signed (to encourage foreign investment).

The ICSID does not hear cases against countries that have not agreed to abide by its rulings.. so if you invest in a country that has not signed, you're SOL... they're not going to help you.

https://en.wikipedia.org/wiki/Investor-state_dispute_settlem...

https://en.wikipedia.org/wiki/International_Centre_for_Settl...

What happens if a government agency demand something they don't have the authority to do, but they get it.

If FBI wants from your isp your name, address and contents of your emails. But they are entitled only to the first two. Your ISP though complies on all 3 counts. What is the state of the information gathered by the content of your email since it was surrendered voluntarily by your ISP?

I'm repeatedly astounded by the FBI's overreach (though I oughtn't at this point). I'm also always surprised how much people wanna take swings at NSA when FBI are the ones abusing everything domestically (though certainly NSA are helping them, and they shouldn't.)

Just. Get. A. Warrant.

The FBI is really long past its prime and needs to be done away with.

It would just be replaced with a new shiny organization having a new name, more freedom to do more harm (given its lack of baggage) and probably end up employing the same people.

Sadly being on the brink of destruction is likely going to be the only motivator for real change.

FTFY: It would just be replaced with a new shiny organization having no name

..the kicker being that the organization probably already exists

Oh come on, surely there's no such agency. ;)

Sure there is. I've seen them. They wear back suits, black sunglasses, and drive big black oil guzzling SUVs that move in tight groups travelling at the exact same speed. I've also seen their leader too: http://bit.ly/1Y5Irgs (whom is shown reading this thread).

Please don't post unsubstantive comments here.

Pfft... Reminder to self: sense of humour not allowed on HN unless you're part of the clique, when then becomes permitted.

Comments for the sake of humor are generally frowned upon on HN. The exact same topics are usually posted on reddit, where anyone is welcome to meme and joke all day. HN tries to stick with substantive, interesting commenting. I am not trying to speak for everyone, this is just what I have viewed.

Jokes will sometimes fly, but it's usually in pretty inactive subjects and they aren't political like yours.

Humor's fine, it's just that the bar is higher. Most internet humor is lame, and that stuff grows like crabgrass. scott_s expressed this well a long time ago: https://news.ycombinator.com/item?id=7609289.

By the way, if there's a clique we personally invite you and everyone else to be part of it.

FYI: 'no such agency' is what people used to call the NSA.

So, it was a substantive if simplistic comment, and a joke. Basically, 'Yea not the first time there has been a secret organization within the US government before.' + 'Sounds like a job for the NSA' + the double speak joke' of of course they would never do that.'

What is the new becomes the old in no time at all. Something will, and realistically has to, fill the void of high level domestic security. And unless the people that make up it are fundamentally different, or unless the structure itself and its system of rewards and punishments are different, we will only repeat history.

Vote. Raise money. Spread it around.

“The FBI asks for so much, because it is banking that some companies won’t know the law and will disclose more than they have to. … The FBI is preying on small companies who don’t have the resources to hire national security law experts,” he argued.

This is something police officers routinely do, to people with vastly less resources than companies like Yahoo. It is sanctioned because all the "bad guys" must be caught. Why is it a problem when the FBI does it?

Why is this not a problem when the police does it?

The 6th District described the practice of police lying about having DNA, "a regrettable but frequent practice of law enforcement was not unconstitutional," citing to People v. Jones (1998) 17 Cal.4th 279, 299 - which allow police deception as long as it is not unlikely to produce an untruthful confession.

http://scocal.stanford.edu/opinion/people-v-jones-31413

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