Response of US Govt to Google, Microsoft, Yahoo, Facebook, and LinkedIn [pdf] | Hacker News Reader

Response of US Govt to Google, Microsoft, Yahoo, Facebook, and LinkedIn [pdf]

uscourts.gov

104 pointsrajbala34 comments

I'm not quite as rabid as a lot of HN commenters are about this entire issue, but the following passage is near-comical:

Balancing the competing interests at stake, the Government has taken a number of significant steps -- above and beyond what the law requires -- in order to promote transparency and accommodate the the legitimate interests of companies. For example, for the first time, in the winter of 2013, the Government agreed that companies may report the aggregate number of NSLs they receive, in numerical ranges and on a periodic basis.

When you're trumpeting the fact that you oh-so-graciously allowed companies to report the number of gag orders they received as some sort of great leap forward in transparency, it's a bad sign.

Reminds me of the Obama speech regarding Syria:

I don't need Congress' or anyone's permission to strike Syria right now. But since I'm such a nice guy, I'll just go ahead and let Congress have a vote before I do it anyway, just for kicks.

He actually saud that? Wow. Do you have a limk to video? This would certainly reveal a mindset.

I think he was paraphrasing.

I think he was paraphrasing and sensationalizing.

Especially considering, in hindsight, the entire episode seems to have been a masterful Bad Cop impression by Obama. I thought he looked like an idiot during it, but somehow we got more than we could have expected from a coercive cruise-missiling.

As Kevin said, I was paraphrasing. Here's the video:

http://www.youtube.com/watch?v=QeYDhMmVLXI

It is troubling to see that all the arguments presented by the US government in this motion are based on the preservation of government power and the ability of its agencies to conduct surveillance, rather than the constitution and laws passed by congress.

Any and all concessions granted to plaintiffs in this motion are exercises of the discretionary power of the federal agencies, rather than acceptance of the limits which the agencies are legally obliged to comply with.

Actually, the core of the counter argument is that the executive can declare anything classified.

The argument for publishing from the companies is that this information is not classified, but it's not their decision, it's (basically) the President's.

http://www.fas.org/sgp/crs/secrecy/RS21900.pdf

>The Supreme Court has never directly addressed the extent to which Congress may constrain the executive branch’s power in this area. Citing the President’s constitutional role as Commander-inChief,4 the Supreme Court has repeatedly stated in dicta that “[the President’s] authority to classify and control access to information bearing on national security ... flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”5

The President decide's what's classified, the Supreme Court agrees that the President has the constitutional authority to declare things classified. End of story (at least for this case).

I think in general, it's important to note that the Courts have always ruled in degrees. Nothing is absolute (which is why people can get thrown into jail for hate speech), and the courts are the ones that decide up to where the line gets to be drawn, balancing between rule of law and freedom. The discussions about surveillance (and nat. sec. associated) are relevant.

I agree that the argument being made by the United States is based on the ability of the executive to classify things. What I wrote was that the bulk of the argument is dedicated to the preservation and extension of government power, rather than compliance with the constitution and laws. Where the constitution is mentioned in this document, the government is describing how and why its explicit protections of fundamental rights should be circumvented, in favor of the broad investment of power in the executive.

It should be noted that the government described no limiting principles which would constrict its ability to censor or otherwise coerce any person.

The limiting principles seem to be encoded in the law[1] that provides the basis for most of the government's arguments - FWIW, passed by both houses of Congress and explicitly granting this discretion to the executive branch.

Most of the recent furor seems to be around whether the NSA is actually complying with (d)(1)(A) and (B) or is just gathering up all of our information without the court order required for surveillance of any U.S. citizen inside the U.S.

[1] http://www.law.cornell.edu/uscode/text/50/1881a

What purpose would it serve the government to describe its limits?

The government could acknowledge limits, which would be made permanent by a court ruling; these would serve to protect the rights of the citizenry.

Many legal doctrines require that limiting principles be attached to each power granted to the government.

> the executive can declare anything classified.

Scary because this simple tool can be used to justify and do just about anything.

So the Supreme Court somehow carved a First Amendment exception to the President just because of his role as the Commander-in-Chief?

What should have more weight: a very specific prohibition on Congress (and therefore government) on abridging freedom of speech, or some vague thing called "National Security", a concept which by the way is not mentioned nor can be inferred at all anywhere on the constitution?

This shows, if nothing else, that realpolitik is the guiding governance philosophy.

This makes me miss Groklaw.

I love the fact that significant portions of the document itself are redacted, including the headings of the pages.

In their original motions, Google and Microsoft sought to publish on aggregate number for all the FISA process they receive. After failing to reach settlement with the Government, however, they amended their motions to see krelief that owuld present an even greater risk to nation security: the right to disclose the precise number of FISA processes they may receive under each separate provision of FISA page 3.

It's mirth on display in this stanzas, pure and simple, and it's immensely ugly and shameful: the Court is happy to defer from defending it's activities by instead highlighting progressiveness in the demands for accountability. Every inch more asked for is responded to by doubling the re-entrenchment of secrecy.

TL;DR: Don't open your company in America. You can target Americas markets from any other part of the world.

My favorite part right from the intro (and touched on elsewhere):

Releasing information that could induce adversaries to shift communications platforms in order to avoid surveillance would cause serious harm to national security...

So now I wonder a few of things:

1. The NSA will protect the companies who entered in a strong agreement with them by using the "they can't lose customers, we need to watch their customers" argument? If so, that means that companies may be encouraged to enter a strong agreement knowing it will remain secret and they don't have to spend time/resources validating requests. The only thing preventing the want to enter a strong agreement with the NSA now is morality.

2. If some companies are given the transparency and others aren't, isn't the omission alone enough to assume it has entered in a strong agreement?

3. Did these companies make the petition knowing there request for transparency would not be granted on the levels they want so they can save face to their customers saying "well, we tried"?

Edit: Formatting

The argument that they will know which services not to use is nonsense. It's obvious to anyone with half a brain to not use things like Skype if you're doing something that might attract the attention of the NSA, DHS, etc... even terrorists would know to use open source things like mumble that support encryption.

I read the motions and now this response and somehow it resembles a show for the public. Big tech picked a minor surveillance issue of FISA orders statistics and conveyed their care for user privacy. Government respectfully denied and conveyed its resolve in fighting terrorism.

But none of those PRISM companies took part in public protests and none of them supported Mozilla's initiative to reveal the NSA unlawful surveillance practices [1].

[1] https://stopwatching.us

TL:DR - A very polite "No!."

More like a very polite "Fuck, no!".

Or, more to the point: "That's a stupid question!"

Fuck no, fuck you and fuck off.

So many things in this response come across as terribly condescending and dismissive.

  The companies assert that the secrecy requirements
  apply only to particular surveillance targets. 
  But that implausible reading ignores the forest 
  for the trees.

I wonder if the companies get to see the redacted part. If not, it's odd for them to be present

Seriously what could be in the headers and footers that need redacting?! it's like 4 words.

Response to what?

The companies asked for declaratory judgement and the government responded.

Requests for permission to be more transparent with users regarding the level of surveillance they are obligated to provide to the US Government.

cheers

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