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Your reply might be inadvertently equivocating on meanings of "request", although I can see an interpretation where you're right.

Bear in mind that in many government data requests, the government is really demanding or instructing someone to provide the data, in a manner calculated to make the recipient think that complying is not optional and that refusing to comply would be punished.

In other contexts, the courts have at least created suppression remedies when law enforcement agents order people to do things that aren't really legally required. And if you as a private party make an improper legal demand of someone, there could be a legal remedy against you just because of that (although maybe that falls under "[t]he law is then there to step in when there is a dispute").

I think there are also cases where people have maintained civil rights challenges against law enforcement officers who gave improper orders (for example, improperly ordering someone to stop doing something -- like photography!). I would think the legal system could pay attention in a broader range of situations to the difference between law enforcement requesting people consent to something and making people believe that they have no choice.

There's always an alternative to the government demanding something: lawyer up and take it to the courts.

There are very real pragmatic problems regarding the expense and distraction to an organization that may be struggling on the margin of survival anyway, and additional principle-agent problems when this organization is not personally hurt by complying with the FBI's request but is instead acting on a customer's behalf, who will probably never know that the request was made in the first place. But those are the problems that the article is proposing to solve, probably through an organization that serves as a clearinghouse of information and legal assistance to small companies that need to handle customer data but don't necessarily have the resources to fight such a battle themselves.

Even if you take it to court, the statute that authorizes judicial review of NSLs restricts the authority of the judicial branch to engage in judicial review. Instead of being able to strike down NSLs for any reason that a court may determine is unlawful, under the statute courts may only overturn gag orders if the court finds “that there is no reason to believe that disclosure may endanger national security of the United States, interfere with a criminal counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person.

So no you cannot always just take it to court. In many cases it may be illegal to do so.

I'm don't think that's an accurate interpretation. Congress can't just add a line to every statute to exempt it from judicial review. Even if they tried, the courts would just ignore it as they have done before.

This would be sustainable iff:

1. The party who did not want to be involved in the situation was considered the defendant (as opposed to the current default-inversion where they likely have to go on the offensive in court).

2. The only outcome from 'losing' such cases was enforcement of the original order, rather than fines and jail for noncompliance with the original ambiguously-fraudulent order.

3. The defendant was given gratis legal representation of their choosing.

4. In the case that a defendant did something that was not required of them due to a misrepresentation by the aggressor, they were automatically and fully compensated for damages (more relevant for individuals vs the police).

Without this, those who are less disincentivized to engage in legal battles (eg those who don't risk jail time for losing, are getting paid a salary, and are funded by public money) will use the complexity of the legal system to bully those who would simply rather not get involved. Since the costs are borne by those who would rather not be involved, the complexity of the legal system will grow without bound - the current de facto requirement for the average person to employ a lawyer to interpret the law is already a violation of "equal protection".

> Liberal democracies usually operate under the principle that you can ask anything you want of someone, and it's up to them to say "no" if they find it disagreeable. The law is then there to step in when there is a dispute and say which party is right.

That is true, but there's a difference between a request and wrapping something in the flag and saying it's a lawful order. A LEO can ask me whatever they want; in some situations it's a lawful order and I go to jail if I don't comply, and in others I can say no. This doesn't mean that a LEO can stop everyone and demand things with no probable cause. With the FBI letters it's even worse because they carry a gag.

It is one thing to ask, quite another to demand and claim that the law is able to compel the other party to comply. Especially materially misrepresenting the law during a demand by a powerful party that should have known better. Do you think we can't distinguish this from a regular request?

Exactly. And when FeeBees "ask" it is, ultimately, at the point of a gun.

They should be required when asking for something to state whether it is a lawful order or a request.

But the real problem is that the government would lie anyway and can't be trusted. It's sad that our "protectors" have become so corrupt and dishonorable.

Oh, also there should be real consequences when agencies are caught lying or being dishonorable. I can dream, right?

The problem with the "lawful order or request" split is that, even if they make it very clear, there's the implicit threat of escalation if you don't agree.

Today you refuse a request. Maybe tomorrow they convince a judge to let them very publicly come to your offices to take the data.

I suspect that fear drives many people and companies to cooperate, even if they understand that there's a choice.

They can convincea judge to do that anyway, if it was a lawful request.

Exactly.

I believe the next step after a request would not be a search warrant, it would be a warrant for the data lawfully requested. A company would not be able to refuse such a lawful request. IANAL though, so what do I know.

> Liberal democracies usually operate under the principle that you can ask anything you want of someone

Except in cases like blackmail, extortion, racketeering... even harassment - you won't get much luck asserting the person you were harassing never bothered to tell you to stop. There is a whole host of behaviors that do not require the victim to mount a defense, because we've identified a power imbalance that might make it infeasible.

I think you're missing the problem with the current situation. It's a matter of incentive, and the fact that the FBI has no incentive to stay within the parameters of the law, no incentive to limit its requests, no incentive to get things "right". When a mere mortal citizen steps outside the bounds of the law, they are swiftly punished, and ignorance is no excuse. When anointed government officials overstep the boundary, it's no big deal because quite often, there's just no mechanism to punish them for it. But there needs to be such a punishment, otherwise trust in the system erodes rapidly.

The dilemma you posed is a false one. There is plenty of nuance inbetween the two extremes - "Don't let the FBI ask" and "The FBI can ask about anything and it's your job to figure out if it's legal or not". Possible recourse could require a pattern of abuse, determination of gross negligence, the punishment could be contextualized - mistakes leading to fines in favor of the citizen, while gross abuse leading to criminal charges. There's plenty of room for discussion of the specifics of such a system, but it must exist, and also the public must see it applied effectively in cases of extreme abuse.

I think your comparison of "you can ask anything of someone" ignores the reality of the relationship between two private citizens, and a private citizen and the government. The government expects trust, demands obedience and respect, but you cannot have any of those if it will also bend the rules it is supposed to be following, lie and cheat its citizens out of their rights. Even if staying within the marginal bounds of the law, this creates an adversarial relationship between citizens and the government, and breeds animosity and contempt. I believe there is a middle ground to be found between the government being paralyzed to act due to fear of making mistakes, and citizens living in distrust and fear of the government, which is supposed to serve them.

This "feature" of the legal system, where the weak are trampled because they do not have the power to assert their rights, makes it rotten to the core. Ask any CDL what the outcome of this "feature" is, for the poor, the uneducated, the ignorant, for minorities and for the weak. The law does not need to protect the strong - they already have the power to do so themselves. If a legal system fails to protect those weak in society from abuse, then it is at best pointless, and at worse, just another tool for those in power to subjugate the rest.

> the fact that the FBI has no incentive to stay within the parameters of the law

The FBI isn't operating outside the parameters of the law. If they ask you for a piece of information that you are not legally required to hand over you can still choose to hand it over voluntarily.

and the cost of compliance, and to business, individual freedoms and trust in government is compromised in the process

I think the point is that the law should be refined so that if they ask you for something they should make it clear what you are legally required to handover and what they are asking nicely for. Then punish officiors or departments that mislead.

It seems like they're basically lying to people about their own legal powers and the person's legal obligations. Don't you find that troubling?

Great level-headed response! It sounds like there could be an interesting side project for someone—a mini-site that explains each of the things the FBI is allowed to request via each type of request. Or even sponsored by the EFF.