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Comment by downandout | Hacker News Reader

In case you didn't read the whole letter, it basically tells him that the government makes the rules, that the rules say that these widely-publicized programs are classified, and that if he wants to know what they have on him he can f@@k off. We should be outraged by these responses, but not particularly surprised. They are taking the only stance they can take: you found us out, but you can't do anything about it. The only thing that we can do is assume that every electronic communication we make is being monitored, stored, and analyzed, and conduct ourselves accordingly.

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One of the basic exceptions to FOIA is classified material. If that weren't the case, there would be no point in having classified material.

To my knowledge, every government in the world has some sort of state secrets program. If you are against this, then that is at least consistent. But it makes no sense to say that the NSA should be releasing classified information under FOIA.

So "evidence" gathered in a claimed Law Enforcement capacity against our own citizens should be classified? Forever, like even if they decided to charge someone with something the evidence against them should remain undisclosed?

Do you not see a problem with this?

In no way did I imply that. I am responding to the central "story" of this article, which is about denied FOIA requests. My point was that FOIA is expressly not the right tool to attempt to get the USG to give you their signals intelligence due to a specific exemption (which is logical, or at least logically consistent) for classified information.

Perhaps a lawsuit would be able to accomplish what you suggest. I have no idea.

Thanks for your take, it sounded like you were promoting the government's position.

I am not of the opinion that classified information should necessarily be disclosed under FOIA. However, one could make a strong argument that because these programs have been officially acknowledged (which is inconsistent with the procedures for handling classified information), that their existence is no longer classified. NSA didn't have to make any public comment on the leaks at all; nevertheless, they chose to not only acknowledge the programs but also release a fair number of details, which would seem to have the effect of declassification. There is a similar principle in trademark law: failure to enforce the trademark results in a waiver of any rights granted by it.

Maybe that's how it should work, but I don't think it's a good idea and, anyway, that's definitely not what FOIA law says.

The fact remains that as more and more information about the programs is leaked to 'adversaries', the more pointless the program becomes. You wouldn't play hide and seek if everyone could see you, right? Or if anyone shouts "Marco, FOIA!" they have to respond "Polo, docs!"

Most of the specifics here are still under wraps (who's being targeted, what specific patterns they search, etc) so the programs are still in pretty good shape. It's far too early to throw in the everyone-knows-everything-already towel. What's maddening is that the leaks on Capitol Hill are exactly the same, criminally, but are usually pre-filtered, pro-US and condoned by the Administration.

If leaks are condoned by the administration, then it has to make you wonder how much of the professed value these programs actually have.

I imagine that documents remain classified even if/when a leak occurs of all/part of it. Just because someone has broadcast parts of it to the internet/world doesn't mean that there aren't aspects that remain secret and should remain secret. FOIA was never intended to reveal classified data, leak or no leak, until it has been de-classified. A few slides got leaked; let's not get carried away.

A fundamental rule of classified information is that disclosure of said information does not cause declassification. You aim to make it unclear whether there is any truth in the leaked documents to cast doubt on the information.

Imagine if these were nuclear secrets. You would prefer it to be unclear so that replicating groups would not feel confident jumping into a nuclear project.

Obviously since we are talking about something that may violate Amendment 4, things ought to be a bit different. Probably not from a declassification standpoint, but rather from a legislate-this-out-of-existence standpoint.

Yeah, but I think the point of the article, in part, is that this is a circular argument.

So, you have an exception that says "classified material is exempt". Fair enough. But, you then turn around and call everything classified. Not fair enough.

There is virtually no limit to what can be justified if you were to follow this line of reasonng.

And by any reasonable measure, the amount of govt. documents that are now automatically classified has increased exponentially in the last decade.

Unless there is recourse, FOIA is a nullity. In this case "What do you know about me?" is obviously not a secret of any kind unless I'm doing classified work. So the FOIA denials are obviously defective. It doesn't matter that they are defective based on classifying non-secret information.

In US intellectual property law, a company's trade secrets are no longer secrets if they get out, and a company cannot pursue those who use the information after it has been leaked. They can sue the person(s) who released the trade secrets, but that's it. No such luck with classified information.

If we conduct ourselves accordingly, the NSA wins.

I meant that we should secure our communications, not that we should kneel to our dark overlords.

Which is perfectly acceptable. However, we're computer experts. Most of us know how to encrypt. The common man doesn't. If we (the experts) go on the digital lam, the NSA still wins, because they get the common man.

We need to make crypto easier, we need to provide tools everyone can use. It's our responsibility to educate the masses. Otherwise we're just as antisocial as the governments.

Well said, well said indeed.

"We need to make crypto easier, we need to provide tools everyone can use."

If that succeeds, you still think encryption will be legal? (without support from the government (read: backdoor enabled))

They already tried and failed to require a back door. There is a reasonable argument that the government does not want to make crypto software contraband.

In any case, foreign hackers are still going to be after your data. It's insane that we don't have easy routine encryption of communications and data storage.

I agree with this. The NSA already has exceptions that allow them to keep encrypted data forever as they attempt to crack it. They have the law on their side and when they don't, they change it or fudge with loose interpretations.

And even if encryption were to continue, next thing you know, we will hear about other technologies. Some crazy BIOS back doors, exploits, or chip-level garbage.

To my mind, this is a legal issue more than a techical one. We shouldn't have to play cat-and-mouse with our government to protect our privacy. They need to be reined in legally, and all of this nonsense made punishable by law.

Is there a public list of FOIA requests? In other words, can I check if my neighbour has filed a FOIA request?

You can request the FOIA log via a FOIA request. However the names of the individuals making requests are generally redacted as per privacy laws.

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