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Comment by bahmboo | Hacker News Reader

From the statute (and in the letters):

> the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

Of course they could still lie but you can't be investigated just for your protected speech. Not defending the whole thing, but didn't realize that requirement until now.

[edit: formatting]

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Interestingly, 'clandestine' doesn't seem to be defined in US law; Black's law dictionary defines it as 'secret or concealed, especially for illegal or unauthorized purposes.' The law does ban such activities conducted 'on behalf of a foreign power,' which latter definition is so wide in scope as to encompass all sorts of people who might never have considered themselves to be such.

https://www.law.cornell.edu/uscode/text/50/1801

Simply having too high a degree of curiosity about certain parties and gathering publicly available data could easily be made to qualify in the hands of a creative prosecutor (and I anticipate prosecutions getting a lot less rigorous and a lot more creative in many jurisdictions real soon now).

Of course they could still lie but you can't be investigated just for your protected speech.

I'm not sure that curating a lot of information - a private library, if you like - constitutes a speech act per se.

Suppose, for example, that I wished to dominate the market for some collectible item and assembled a large volume of information on the market and its participants, but chose not to publish or advertise its existence so as not to tip my hand to competitors in that collectors' market. I would, by definition, be engaged in a sort of clandestine intelligence activity - albeit a wholly harmless one. I'm really not sure if the collection of such information is protected by the 1A.

You'd think so, but I can think of many persuasive arguments to the contrary. There's no federal law explicitly protecting the privacy of journalistic sources, for example, so it's possible that the act of publication itself might be considered a prerequisite to a 1A defense. I hope I'm overthinking this but it does seem to be a bit of a legal hot potato.

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

>> ... but you can't be investigated just for your protected speech.

Yes you can. All law enforcement regularly investigate wholly innocent people. It's called following leads. The vast majority of people investigated are totally innocent and never hear a peep. Sometimes those investigations lead to bad people, sometimes the lead was false, and sometimes they discover there is no real crime. They look at the speech, determine it is perfectly legal, and that's the end of the situation. But that is still "investigating".

It's not as simple as that.

"The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation." From https://en.wikipedia.org/wiki/United_States_v._United_States...

And "These Guidelines do not authorize investigating or collecting or maintaining information on United States persons solely for the purpose of monitoring activities protected by the First Amendment or the lawful exercise of other rights secured by the Constitution or laws of the United States" from the Attorney General's guidelines for the FBI, which were originally created because of said case.

Much as how there's a legal distinction between firing someone for no reason and firing someone for an illegal reason, there is certainly reasonably interpretable legal precedent that investigating someone solely for their protected first amendment activities may violate their first and fourth amendment rights.

Of course, IANAL, but that doesn't seem to stop many people on the internet.

>> unauthorized official eavesdropping

It's authorized by law.

>> solely for the purpose of monitoring activities protected by the First Amendment

They don't look into such things randomly. They have some notion, say a report from someone, and examine the speech. A typical example might be some kid reporting "terrorist speech" in a public forum. So some officer somewhere takes a look, finds nothing illegal, and that's the end of things. That is an "investigation" of 1st-amendment speech because the officer is reading and investigating legal speech, but the purpose of the investigation was non-protected terror speech, or child porn, or threats, or any number of categories of illegal speech. It's not proper to turn around and call those investigations illlegal simply because they didn't find anything. That would only encourage officers to find things, to make mountains out of molehills, to justify their investigation.

> It's not proper to turn around and call those investigations improper simply because they didn't find anything.

And why not? "Some kid reporting" should not be enough to trigger even the most cursory look - especially when, as you conveniently leave out of your scenario, that cursory look involves issuing an NSL or otherwise obtaining non-public information by exerting the government's considerable power and influence. I see no reason why that should be allowed, nor that it is properly allowed under our legal framework. "Some kid reporting" is not probable cause.

You might want to skim the decision (try searching for the word "authorize") in the case: http://caselaw.findlaw.com/us-supreme-court/407/297.html

This is semantics, but they're important. The investigation you mentioned isn't someone being investigated just for their protected speech, it's someone being investigated on suspicion of a specific crime. I do believe there are frameworks in which such investigations can be legal (but whether the NSLs themselves are sufficient or warrants are necessary is another matter) but I do not believe it follows that you can be investigated solely for [any] protected speech, which is what I interpreted your comment to mean. Could the speech create the suspicion in many contexts? Sure, I don't see why not. But it must actually do so, and it's the suspicion that provides the framework for the potentially legal search, not the speech.

The real law enforcement activity I think this prohibits would be pure fishing expeditions against those engaged in lawful first amendment activities. If the head of the FBI decides he doesn't like a given newspaper because of what they've said, and he can't even name a crime he suspects they've committed, I do not believe he has the legal authority to authorize an investigation into the newspaper to see if he can find something that they're guilty of. I believe it violates first and fourth amendment protections under Keith. What precisely the bar is to prove or justify any such suspicion (or even if there's any oversight) is a separate question.

>>I do not believe it follows that you can be investigated solely for [any] protected speech, which is what I interpreted your comment to mean.

Then you did miss my point. Often cops/feds have to investigate whether something is or isn't protected speech. When those investigations find nothing (normal) they then appear to have been an investigation into protected speech, but that wasn't clear at the time. We cannot make such investigations illegal simply because they come to nothing.

I didn't say the investigation is/should be illegal if they come to nothing. I said the are/should be illegal if they happen without suspicion that a specific crime has been committed.

The state should not be able to target someone for investigation solely because they disagree with their speech and "think they might be guilty of something." They need to state/establish what that something is. That's my read of Keith.

Material support of designated terrorist organizations is a crime under the law, and investigating someone for that is wholly different from investigating someone solely because they disagree with their protected first amendment activities. Consider again my newspaper example. With terrorism cases, they can point to the laws about supporting terrorism and say that's what the person is suspected of. They likewise need to have a law they can point to that they need to believe is broken before they target the newspaper for investigation because of their speech. How they have to do said pointing (warrants, NSLs, etc.) is a separate question, but in the absence of such suspicion I do believe the search is illegal.

I'm highly skeptical of your approach to this problem.

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