Secret FBI Subpoenas Scoop Up Personal Data from Scores of Companies
nytimes.com
nytimes.com
I thought it might be helpful for me to make a couple points.
First, national security letters have been around, AND controversial, for years now. A number of tech companies have fought the gag orders. The news here is really that we are seeing for the first time which other specific companies get a lot of these — especially banks, credit agencies and so forth, which have all been silent on the subject.
Second, @hammock is correct to say that these are not approved by a judge. Nor are they grand jury subpoenas. They are administrative subpoenas, but unlike other administrative subpoenas, almost all of these come with stringent, long-term gag orders. So, they're a pretty special type of subpoena, not one with which everyone is familiar.
Thanks again for reading.
An old, irrelevant, outdated document the Constitution is, they tell you as part of the psychological manipulation game they play to get people to foolishly abdicate their most fundamental rights through the con job of government's benevolence. But in the end, well beyond the point of way-too-late, people will unfortunately have to come to terms with the reality that freedom, liberty, self-governance, and that the government is no one's friend are not old, irrelevant, and outdated principles; they are universal principles that span time.
Just like many things in humanity have been discovered and crated, then forgotten and taken for granted and driven to being lost and collapsed, and then rediscovered or reinvented; so too, does it seem humanity is on course to bury this experiment with self-governance that was kicked off in 1775, for maybe another 1,000 years, if not permanently. Is there even an opportunity or chance for freedom to rise again when it is suppressed so thoroughly by way of technology and soulless robots and AI? I think not. I hope I am for once wrong. ... War or galvanizing event to rationalize ever more eradication of liberty, incoming, all to the cheers of adoring fans.
In memoriam the people who's voices have been squelched by the tech tyrants. They will not be the last victims of this evil that is descending on us with ominous persistence.
The governmental system we have is not a perversion of the constitution, but a reflection of its inadequacies.
Another strongly American social phenomenon is viewing the government as an intrusive enemy. The result is this kind of wish that the government would just go away and I think a lot of Americans think that if we could just somehow suffocate the government then the problems that it presents would vanish. The reality, of course, is not even remotely that way. Government is a tool that the powerful will continue to use to clobber each other.
It seems hopeless, but we at least need to talk about how the government can be improved, including its fundamental structures.
I would amend that to "... we at least need to talk about how the government can be improved or eliminated ..."
One has to consider what the fundamental basis for government even is and how government can have any authority at all, and what the limits on that authority are.
I would encourage everybody reading this to go read The Law[1] by Bastiat, for a highly cogent analysis of these issues. The entire essay is a delight, but one point he makes stands out to me:
What, then, is law? It is the collective organization of the individual right to lawful defense. <snip> Thus the principle of collective right — its reason for existing, its lawfulness — is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force — for the same reason — cannot lawfully be used to destroy the person, liberty, or property of individuals or groups.
If you adhere to this viewpoint, the "government" (which we usually take as a proxy for "the law") is only an extension of existing individual rights, and cannot have any authority or right that an individual doesn't have. Of course one can also get into a different discussion of whether or not it is even correct to treat "the government" (or "The State") as the natural (or only) proxy for what we mean by "the law".
Everything "enshrined in The Constitution" is no such thing. It's enshrined in our culture, and individual hearts and minds. That's why it's so incredibly stupid and naive to push for things that are unconstitutional: it means you've dismantled your respect for the ideas in the constitution in your own mind, and you're cool with others, even your enemies, dismantling it in theirs. Usually you do this for some short-term, inadequate political reason (vague promises about controlling guns or banning abortion or taxing rich folks).
The Constitution isn't inadequate. We are, because we have no respect for the rights of others when it comes to what we think is best for everyone. We are, because we believe the lies that are pumped at us 24 hours a day. We are, because we argue that the Constitution is just a piece of paper when it gets in the way of what we want.
It's not about The Constitution. It's about people generally having the government they deserve.
[wish i could attribute this, but i don't remember where i first heard it]
NSLs are unconstitutional.
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Has evidence from an NSL ever been introduced into court by a prosecutor? It seems like this gag order serves to allow the FBI to pursue parallel construction and then keep their tracks covered in doing so.
The FBI is still The House J. Edgar Built, and Congress ought to tear it down.
ABSCAM.
There is a Lavrentiy Beria everywhere. (There's probably thousands of Lavrentiy Beria's in the US alone, truth be told.) With the threat of ABSCAM-like ops looming out there, I wouldn't count on politicians saving us. Just ask black and hispanic males how well appealing to politicians for help from malicious prosecution has worked out for them historically.
Kompromat might be a foreign word, but it's hardly a foreign concept.
https://www.etymonline.com/word/blackmail#etymonline_v_13560
This is certainly disturbing news. And it's great to know about it. But I'm left feeling hopeless. Because we've been fighting this bullshit for decades, with little to show for it. And personally, there's nothing actionable.
So it goes.
We Don't Need No Stinking Warrant: The Disturbing, Unchecked Rise of the Administrative Subpoena (https://www.wired.com/2012/08/administrative-subpoenas)
Are we aware if these are targeted (~60 orders = ~60 targets) or requests for large swathes of information?
The government now releases basic statistics on NSLs, for example here: https://www.dni.gov/files/CLPT/documents/2019_ASTR_for_CY201....
In 2018, there were 10,235 NSLs, with 38,872 "requests for information" (ie targets) within those NSLs. So you can make some general inferences.
Can I challenge an NSL in court?
Yes. Since the statute was amended in 2006, an NSL recipient can petition a federal district court to modify or set aside both requests for records and the gag orders that accompany such requests.
There’s a good summary of the EFF’s challenges to the law here: https://www.eff.org/deeplinks/2016/04/disappointing-ruling-n...
I personally think that the Bill of Rights should have been amended once tabulating machines were used for the 1890 census, without which, it would have taken the whole decade to count.
I think they get away with this because they are just collecting the information in mass and are not targeting an individual.
There was a point where they were only scooping up information on foreign entities, and at some point that shifted and they started collecting all foreign and domestic information. I believe it was right around the time 9/11 happened.
This is what caused William Binney to leave the NSA
https://en.wikipedia.org/wiki/William_Binney_(intelligence_o...
In order to parse that information and look up information about a particular subject or individual, I believe they still require a subpoena, but who is to say someone with access doesn't use this giant trove of information nefariously.
It also opens up the possibility of someone getting blackmail/dirt on a competitor and bribing a NSA employee to get the information.
Also what is to prevent someone from retroactively going back through the information on what used to be allowed but now has changed to being illegal because of an administration change/laws being passed.
The alphabet agencies definitively need more oversight, however I feel anyone tasked with that job ends up becoming entrenched in the corruption and have a hard time holding them accountable.
And people still call Snowden a traitor for revealing this kind of practice in 2013.
Maybe the NSA needs to be taken apart or heavily restructured, but this can be done without using their words or us vs them worldview.
It's plausible, but any government evidence to disprove it would be suspect so it's kind of stuck as permanently-epistemologically-ambiguous.
And so I do fully support Snowden but only because the tremendous magnitude of bad behavior he revealed compensates for his treachery in doing so. By contrast I think individuals like "Reality Winner" simply lack ethics. She violated trust on what seemed to have been a very poorly conceived whim to reveal something of relatively minimal benefit to the public good. Indeed checking out the Wiki to see what came of her case I'm rather unsurprised to find that she apparently wrote in her diary of support for Bin Laden and the Taliban. [1]
In military and such organizations this is even more true as individuals take numerous oaths. And one who would break an oath without very substantial reason, is a person the world would be much better off without.
I think the dissonance in your argument is that the US is the people.
Snowden betrayed the intelligence community who is betraying the US.
The United States is like a 243-year-old engine with a desperate need of an oil change.
That oil is us...
...ok. Horrible metaphor but you get it.
Not calling you out just saying just don't let cynicism take hold.
Remember, we pushed Bush out and he was a war criminal.
But never tried him, Rumsfeld or the rest - the only ones who really got a kick to their butts were those implicated in Abu Ghraib. And now you elected a president who not only is a serial liar, probably a sexual assaulter ("grab them by the ..."), but also someone who is involved in multiple lawsuits and probably either unwittingly (the satellite photo) or willingly (the recent whistleblower case) discloses classified information to all of Western enemies.
The party of the President is absolutely unwilling to hold him accountable for his (non)actions as long as they get their abortion bans. And there is no real progress in holding the real deep state (=three letter agencies - not all government employees that don't like the President) accountable and transparent, as evidenced in the original submission.
Of course I couldn't deny there are deeper parts of the state than the Secretary of State
Err I mean... Didn't you hear that GWB is actually a pretty down to earth guy now that he's out of office, and is even friends with Michelle Obama? Who knew he was so personable?
Trump is not president in spite of the problems you have listed - Trump is president because of them. Abortion and how people pee are of the same exact vein - deeply personal topics formed around dividing people. From the perspective of someone supporting Trump, the other team being frustrated is a feature - consider the past 8 years when they were in that position, as told by their media.
Continuing to draw attention to deliberately polarizing topics (as the media does) plays right into the hands of the status quo, by distracting from discussion of longstanding overarching policy (see: bikeshedding). The three letter agencies certainly form their own entrenched interests, but they're also fully supported by the larger economic interests that put on those political races ("propaganda is to a democracy what violence is to a dictatorship"). Specific companies may do better or worse depending on which team wins the race, but they all agree that ever more centralized control is needed. The immediate goal is maintenance of the US economic empire, but it is also insurance for keeping the mobs at bay in the face of rising inequality.
There are plenty of women I have no respect for, in none of those cases has it caused me to even have the urge to sexually assault them.
It's important to keep your objectivity.
I disagree that the Republican party as a whole wants an abortion ban. The Republican party had control of the House of Representatives, the Senate, the Presidency, a large chunk of the Judiciary and 5 Supreme Court seats. If they wanted an abortion ban as much as they repeatedly claim they do, they would have it.
If Republicans couldn't run on promises of banning abortions anymore that would substantially impact their voter base. Actually following through on that promise seems a bit like sawing off the branch you're sitting on.
It's a bit reminiscent of North Korea's daily news blasts showing fabricated footage of how miserable life in SK and USA is. Probably not as extreme a slant going on here, but there's an awful lot of anti-Russia sentiment floating around with no readily apparent basis in fact.
Because the Chinese are off limits now (because the studios want to make money there and throwing evil Chinese billionaires into your rotation for super-villain of the month is a great way to not do that) so that basically leaves Russian billionaires and middle eastern oil moguls as your two picks for low effort evil foreign characters.
It would be interesting to better understand the dynamics between the military and the NSA/CIA/FBI/etc..
I suppose that one good thing that came out of the 2016 election was that it become more obvious that the intelligence services run their own domestic policy, what I don't understand is how monolithic that newish branch of government is.
Presidents usually have the same clearance as the highest clearance.
> the president does not have a right to know everything
This is true, clearances are need-to-know compartmentalization. I was only briefed on stuff required for my job... and would often be told something was outside of scope.
FWIW, the founders didn't intend for presidents to have nearly as much power as they have today.
Perhaps you can research intelligence operations during the Revolutionary War to glean some of their thoughts on how intelligence and the intelligence community should be set up. Of course, I don't know if our founding fathers were burdened with the task of maybe or maybe not covering up the existence of UFO's. :)
Technically, the president can classify or de-classify anything they'd like to at any time. He is the sole and only person in charge of the branch of government responsible for this.
Practically, over many years presidents have delegated this authority all over the place, and in such byzantine ways that most of the folks in compartmentalized projects wouldn't know that he had the authority -- and even if they did, they could just point to various laws and signing letters that make it less than clear how a president would go about declassifying anything.
So yeah, in theory POTUS could take an afternoon off, walk down the street into a government building and declassify whatever he wants. That's why we fight so much over who gets the job: the illusion that these powers are present. In reality, however, if he could get the SS to allow him to take a walk (unlikely), he'd be stopped at the door of wherever he went (both by his own and that department's security services), and then the red tape nightmare would begin. By the time it was all over he'd be better off staying home and watching daytime TV.
For what it's worth, and I hate using movies as historical examples, in the movie Nixon there was a great scene where Nixon went in the middle of the night to talk to protesting students. He wanted the war to end too, didn't they know that?
It was contentious, but then one kid got it and said it aloud, something like "You don't have the power to stop it either, do you?"
Nixon looked completely defeated at that moment. Seconds later he was dragged off by his security staff.
Without getting into the veracity of that exchange, the gist of it is something we see confirmed over and over again in the historical record: large groups of administrators simply cannot be governed and instructed by one person, no matter what the documents technically look like. It's system itself that does the work and enforces the norms, whether it's General Electric or the NIS
It's important to make the distinction that while the President doesn't know all of the things that the Intelligence Community is doing at any one time, there isn't anything that he can't know. It's no different in any other part of the cabinet - the Cabinet members and senior executive service all ultimately decide what hits the desk of the President, so in that sense there is an entire staff "controlling what the president knows." Same as any large organization.
The DNI, DIRNSA, DCI, JS/J2 and all service 2's all work for the President, and they collectively are the ones who "know all the things" - so you can bet if he needs to know something, one of those people will give it to him.
If he knew that "something" even exists!
A former civilian nuclear war planner, I think while working for RAND, learned about the existence of the US military plan for the actions involving nuclear weapons: the plan specified the amount of nuclear response to any conflict, which is fundamental for anybody who has the power to resolve conflicts (a president) to know.
But the civilians weren't allowed to know that the plan even existed: the planner also learned that no other civilian, including the people around the president and the president himself, even knew that the said plan existed: it's very existence was being actively hidden from "civilians." They also had a method for delivering them "something else" if the "civilians" asked "about" that topic.
The military managed for years to operate (to be trigger ready) on the plans they kept completely hidden from anybody, including the president.
The president or anybody around him had explicitly no chance to get that by their own initiative.
Everything nicely documented in the book "The Doomsday Machine: Confessions of a Nuclear War Planner." Read it and weep.
IC Oversight [1] is a massive and well known program, which requires extensive yearly training from every IC member and even more from supervisors and executives.
[1]https://en.wikipedia.org/wiki/United_States_Intelligence_Com...
Further, the 'gag order' component should be temporary and of minimum necessary duration. The arrest of a target should automatically invalidate the gag order because keeping this information from the defendant is a violation of due process.
Good way to go to prison for a long time, but one person's success could force the system to overhaul.
What is unreasonable is that companies can't reveal they've been gagged, or what type of data they were compelled to reveal, even after the fact. Companies should be allowed to say "we have disclosed access logs, location history, searches, encrypted backups for 1-50 accounts in response to lawful request from law enforcement." And they should be able to disclose the letter after an investigation has closed (whether it resulted in legal action against the individual or not).
Gag orders should be allowed, but only if signed off on by a judge, and only for a reasonable amount of time to complete an investigation. If the government gets your information, and decides not to bring charges, you should have the right to know about that at some point.
Disagree. There are numerous cases where it takes multiple investigations to "get" a career criminal (think organized crime). If each batch of subpoenas or sealed warrants were exposed even when there is no charge this time, that gives said suspect a very nice opportunity to clean up loose ends.
TLDR: If people know they are being actively looked at they will attempt to destroy/suppress/hide evidence.
We already have laws on the books to deal with organized crime - why would we give up our rights so that something we have no evidence for might happen?
Subpoenas are only supposed to be issued if there's a reasonable belief that the subpoena will find evidence of criminal activity. In theory, subpoenas should find evidence most of the time--if subpoenas frequently don't turn up evidence, then subpoenas are being issued without the proper burden of proof being met.
For this reason I strongly disagree that we should build any policy around the idea that subpoenas won't turn up evidence of wrongdoing on a regular basis. This just encourages law enforcement to go on fishing expeditions, instead of doing proper, evidence-based police work. If law enforcement know the person will be notified of the subpoena after some time, then they'll be incentivized to only apply for subpoenas that are sensible and strategic, rather than applying for frivolous subpoenas that don't turn up anything.
Really, I suppose I am advocating less for secret subpoenas and more for secret warrants. If someone really has a reason to keep something concealed in the interest in justice, then they should have no problem with a Judge signing off on it, under seal of course.
And if the secret warrant is a part of a series against a suspect, again I think a reasonable Judge could be convinced of the necessity of keeping the ongoing investigative activities concealed for the time being.
The existing laws that protect privacy and what can be done with information companies collect have never been updated post computer revolution... the same generation that was in power before then is still in power, and they've never had any interest in changing that.
The US government started failing a long time ago, and everyone in that generation is either part of the problem or unwilling to admit it IS a problem.
https://litigation.findlaw.com/going-to-court/what-is-a-subp...
A judge's approval is not needed. The attorney (e.g. a prosecuting attorney) is the "court officer".
https://www.eff.org/issues/national-security-letters/faq#3
Most of these, and certainly the Director, are also attorneys. At least James Comey was. Plus they have FBI staff attorneys to consult with. Practically speaking, how does this differ from the local prosecutor issuing a subpoena? The local country prosecutor is essentially part of law enforcement and reports up to the AG in the executive branch of government. The local county prosecutor has dozens of detectives working for her.
The US government receives far more private data about people from companies selling it or simply giving it away, than they get via administrative subpoena. The practice of paying for requested data also makes companies complicit in these orders, when they are issued-- they're a revenue center.
Without stronger laws barring the collection of data and providing stiff civil or even criminal penalties for disclosure (including to the government) the bulk of the situation will not be much improved.
Almost every product you buy now ends up sending your data to some company, and the government has decided that means you have no expectation of privacy, which is clearly nonsense.
Just store the NSLs next to your user data so that when it gets stolen and published then your NSL is published as well.
- Is it related to someone stealing classified information, spying / or spy cell, or could be planning a terrorist attack? In that case, they may be more sophisticated, or the investigation shifts to preventing something from occurring in the future, or its a matter of trying to figure out what a cell of foreigners from Russia/etc. are trying to get.
- Is it something related to a drug investigation? If it's involving drugs, countries everywhere have roving wiretap abilities because druglords use burner phones, and like above, they go to great lengths to hide / mask what they're doing as if it's legitimate business.
- Is it related to any other criminal investigation? Police has more ability to intercept communications than civilians. There is a whole world inside here of nuances. An example in USA is subpoena'ing email records where unopened email is treated as abandoned, they don't require a search warrant. Not that there's many cases prosecuted relying on abandoned email retrieved that'd be thrown out if the law changed :P
- Protect/regulation around data of medical (HIPAA in US, I think GDPR in EU), children (COPPA in US)
- Normal consumer privacy protections (GDPR in EU)
Here's an example of Germany's constitution (Article 10 [Privacy of correspondence, posts and telecommunications] , https://www.bundesregierung.de/breg-en/chancellor/basic-law-...):
> (1) The privacy of correspondence, posts and telecommunications shall be inviolable.
But, then it says:
> (2) Restrictions may be ordered only pursuant to a law. If the restriction serves to protect the free democratic basic order or the existence or security of the Federation or of a Land, the law may provide that the person affected shall not be informed of the restriction and that recourse to the courts shall be replaced by a review of the case by agencies and auxiliary agencies appointed by the legislature.
The above basically gets you what most countries have anyway, so maybe it wouldn't address the concerns people have. If there was a constitutional check for privacy over the wire/data in the cloud it'd be upheld at the judicial level to check the executive / legislative branch. However, there'd still be mechanisms where the government can access data, one way or another. It'd probably end up having the phraseology around them narrowly tailored, there'd be less swept in when decisions are in a gray area.