US Sought Permission to Change Historical Record of a Public Court Proceeding | Hacker News Reader

US Sought Permission to Change Historical Record of a Public Court Proceeding

eff.org

437 pointsphilfreo71 comments

The transcript is a good read, too. The EFF explains how the NSA grabs data wholesale from fiber optic cables (step 1) and then filters it according to selectors (step 2). This is the governments rebuke:

> IN FACT, THE SUPREME COURT DELINEATED PRECISELY HOW

> THE PROGRAM OPERATES. AND IT IS A TARGETED PROGRAM. IT IS A

> PROGRAM THAT IS TARGETED AT SPECIFIC SELECTORS, THAT IS PHONE

> NUMBERS OR EMAIL ACCOUNTS.

This person doesn't have an understanding of how selectors work. He doesn't realize that you can't decide if something is a phone number or an email account until you have already taken a look at it. This is the level on which they argue. They trick people into thinking that you can put a bunch of selectors in one bag and have only matching communications magically appear in a second one, circumventing the obvious constutional issue of collecting everything. But gravity is still in effect, so anyone with a basic understanding realizes that you can't get to (2) without having taken step (1).

> IT IS NOT BULK META DATA COLLECTION.

> IT'S A TARGETED COMMUNICATION SURVEILLANCE PROGRAM

> AGAINST NON U.S. PERSONS LOCATED OUTSIDE THE UNITED STATES.

You're not sure if he is just ignorant or feigning ignorance. And the problem is that it might just work. It brings back memories to the Java APIs case where the career lawyer argued a trivial three line Java code Google copied verbatim constituted copyright infringement. He didn't know, of course, what he was talking about. There was no mental framework for him to realize the sheer stupidity on display.

I think that both sides have perfect understanding that STEP TWO (filtering/targeting) is technically impossible without doing the STEP ONE (bulk traffic capture). And that bulk traffic capture (dragnet surveillance) is illegal under the existing rules.

And yes, it is a very entertaining read:

> WE'VE SAID THIS FROM THE BEGINNING, YOUR HONOR. > IT'S A SOMEWHAT AWKWARD POSITION FOR US TO BE STANDING > HERE TRYING TO ARGUE THE GOVERNMENT HAS TO KEEP > INFORMATION WE DIDN'T THINK THEY SHOULD COLLECT IN THE > FIRST PLACE.

... yet another $25 donation just went out your way, EFF. Keep it up ;)

edit: > THE COURT: MY VACUUM THEORY THAT NATURE AND LAWYERS HATE A VACUUM WHEN GIVEN A CHANCE TO -- > MS. COHN: IT'S TRUE. MY CAT HATES THE VACUUM, TOO.

I really don't think the "pre-filter collection" question can be as non-ambiguously answered as you claim.

If the gov't had a guy at the post office collecting specific people's mail, would the fact that he's looking at the address on all the mail be considered a search?

Even if on a technical level at one point all traffic is on RAM on some machine of the NSA, if they're not actually keeping it or looking at it in any real sense (beyond specific meta-data stuff that isn't stored), then I find it hard to consider that equivalent to actually storing the trafic.

The argument that they could easily switch it to do wholesale collection is pretty irrelevant in the courts.

What do you mean it isn't stored? How do we know that?

Sorry, I might not have been clear.

I don't know if its being stored, I agree that it shouldn't be.

But so many people in this thread seem to imply it is impossible to filter a stream of information without storing the entire stream. This is very disingenuous, and is about as true as saying that it's impossible to have cops camping out for a guy with a specific license plate because they'll have to look at every car, and so they'll have to memorise all of them.

This obviously depends on the selectors, but we're talking about online filtering here, guys. Its possible to imagine a situation where not every single piece of data is stored.

Well, at the very least the data resides in memory and the CPU cache. We could discuss whether that constitutes "storage" but I do think it's significantly different than the personal memory of a police officer. A more appropriate analogy might be a traffic camera looking for the specific license plate.

EDIT: Note that the purported benefits of these collections programs (according to many of the slides) is that the selectors can be determined after the fact. So they must be keeping data somewhere.

Well, I see it as a more potential problem if the cops don't know the license plate number they need up front so they record every single one they see. Then this data is stored until someone can go looking through them to find the plate they actually need. The question is what happens to the complete list at this point?

Which, interestingly enough, the process of recording and storing license plate numbers for various uses is already in play. Both by private and public agencies.

THere were a lot of 'if' statements in your post :) The problem is:

(1) We do not know what the NSA is doing (2) We cannot trust what they say they are doing, because they are perfectly willing to lie about it.

This is moving the goalpost. The question laid in front of the courts is "Is the system being described legal or constitutional?", not "is this what they're actually doing."

This is where Congress is supposed to kick in (and Congress does spend a lot of time creating legislation when the judicial system doesn't have the tools to do what's "right"), either through FOIA-style legislation or legislating a restructuring of the NSA or whatever.

And this sort of "well we can't trust the gov't to follow any of the rules anyways" discussion is pointless, counterproductive, and false. Courts have countlessly told the "government" (which is really just the executive) to do things it didn't want to do. The system is working, and this is part of the process.

I'm sorry, I need further description of what you mean by the moving goalposts analogy. It would seem to me the "is this what they're actually doing?" part is directly relevant to the "is the system being described legal or constitutional?" part. I can describe a process of removing money from the bank that looks legal because I say I'm withdrawing my own funds, but turns out to be totally illegal because what I'm really doing is robbing the bank.

It is true that in some cases the courts do, in fact, tell the government they can or cannot do this or that. But I think the problem being referred to is when the "government" does things within a veil of secrecy so that the courts aren't even aware of the problem. Never mind the fact that the government creates a "court" to validate their procedures that itself is kept secret as part of the overall secrecy. In those cases I wouldn't say the discussion is pointless, counterproductive, and false.

When I presented TorCoin at HOTPETS 2014 (the workshop portion of "privacy enhancing technology conference) last month, I was lucky enough to listen to William Binney speak to us for an hour about the NSA bulk data gathering. Although I have my doubts as to his legitimacy as a whistleblower (wouldn't surprise me if he was an NSA shill, just like it wouldn't surprise me if Snowden was too), he gave an incredible talk, and accused the NSA of some pretty egregious civil rights violations.

I can't find his talk online, so I'll just attempt to summarize one of his points. Basically, he said that in 2000-2001, he had developed SIGINT algorithms for selectively monitoring communications of the "bad guys", within some low n-degrees of separation. He also put in protections to make sure that the identities of all targets were encrypted, until proper legal process allowed the NSA to decrypt them (I was unclear who held the keys). He said that his superiors happily implemented his solution, but stripped it of all selective monitoring logic and identity encryption. That was the event that caused him to decide to become a whistleblower.

(He also ridiculed the NSA's defense that it's too hard to separate domestic communications from foreign ones, since, after all, the IP addresses and phone numbers can be disambiguated by simply looking at the first couple digits.)

So, in short, according to William Binney, the NSA is absolutely engaging in non-targeted, bulk data collection.

I thought that was essentially the final admission, that they had to collect everything to be able to filter out what they were actually looking for. If they could target exactly what they wanted then there would be no need for any type of filtering system.

> He doesn't realize that you can't decide if something is a phone number or an email account until you have already taken a look at it.

I think they understand they are just pushing an alternate view of reality (and interpretation of surveillance, search and so on terms). The idea they run with is unless a human looks at the data, it is not a search or seizure so Constitutional protections don't take effect.

The agency(ies) / DOJ developed a strategy to explain away the Constitutional protections. They can even store the data! and they do that, and it still doesn't count as "anti-Constitutional".

Maybe later you do something suspicious, like participate in some protest -- then you are labeled a terrorist, i.e. person of interest. They get a warrant even (to be legit and all) and do a search for everything you ever did online since, well forever. Maybe you watched some bomb making video on youtube when you were in college. Aha so there you go, "terrorist with interests in building weapons of mass destruction". Congratulations, you've leveled up in the terrorist watch list. And so on. You get the idea.

Notice this:

> AND THAT THE FIRST STEP JUST DOESN'T MATTER OR DOESN'T COUNT OR SHOULDN'T HAVE ANY STANDING.

Government lawyers are not stupid. They know exactly what they are doing. They are deliberately talking past the others' point. They don't want the other side to focus on what "shouldn't be focused on" -- the idea that bulk collection constitutes search. If it is, then billions of dollars of training, equipment, promotions, programs, etc etc disappear in a cloud of smoke. Bulk surveillance and sucking up of information (and definitely storage) must persist unchallenged at all costs -- that is their position.

>I think they understand they are just pushing an alternate view of reality (and interpretation of surveillance, search and so on terms). The idea they run with is unless a human looks at the data, it is not a search or seizure so Constitutional protections don't take effect.

I think there's also the fact that realising something is a phone number of an email account might not be considered a search, in the "expectation of privacy" sense.

If you send postal mail, you expect the contents not to be looked at by the mailman, but do you expect the fact that you sent a letter to be private?

Now, "common sense" might dictate otherwise, but Smith Vs. Maryland is the precedent, and the Courts don't think the fact that you're calling someone (and even who you're calling) to be private. So looking at whether its a phone number or email might also not be expected to be "private" information, even if the contents are.

>Maybe later you do something suspicious, like participate in some protest -- then you are labeled a terrorist, i.e. person of interest. They get a warrant even (to be legit and all) and do a search for everything you ever did online since, well forever.

That's not how evidence works. The gov't isn't authorised to collect everyone's info, so even if they have it on hand (a point the gov't disputes in this case), they don't necessarily have the write to use it.

One of the points of the gov't in the case is that the EFF is arguing that the filtering is a two step process : collect all data, then filter it. But the EFF doesn't know that's actually how things are happening, and it might not be. So the lawyers are actually refuting the plantiff's main line of reasoning.

This case is not about the core of the law, it's about implementation details. Ones that we do not know.

> One of the points of the gov't in the case is that the EFF is arguing that the filtering is a two step process : collect all data, then filter it. But the EFF doesn't know that's actually how things are happening, and it might not be. So the lawyers are actually refuting the plantiff's main line of reasoning.

EFF directly points to (multiple times) that the NSA had a specific redefinition of the word 'collect', did you miss it?

> That's not how evidence works.

Evidence? My concern isn't using said data for evidence if you are accused of a crime. My concern is the use of this data in a non-legal manner for purposes beyond my control. These uses range from mundane stupid crap all the way to the worst paranoia of the biggest conspiracy theorists. Doesn't matter at what level it is, any level beyond the current publicly available law that we have been allowed to know about is too far to me.

Plus, all it takes is some national emergency for the government to give itself permission to waive that whole warrant thing. You know, to save us all from something.

> If you send postal mail, you expect the contents not to be looked at by the mailman, but do you expect the fact that you sent a letter to be private?

But the contents of it are being copied and stored. That's the danger. They claim that because no human is looking at it, it's still OK, but of course a human could look at it in the future if you're suspected of something.

So if you become a political activist or an enemy of someone with access to the data, they can get dirt on you. They can even manufacture dirt on you by taking things you say out of context.

> The transcript of a court proceeding is the historical record of that event, what will exist and inform the public long after the persons involved are gone. The government's attempt to change this history was unprecedented. We could find no example of where a court had granted such a remedy or even where such a request had been made. This was another example of the government's attempt to shroud in secrecy both its own actions, as well as the challenges to those actions.

Reminder to donate to the EFF: https://supporters.eff.org/donate

The article specifically pointed out the government wanted to make the change secretly, so that nobody would ever know it was done:

when it was over, the government secretly, and surprisingly sought permission to “remove” classified information from the transcript, and even indicated that it wanted to do so secretly, so the public could never even know that they had done so.

So if this has ever been done in the past, there is of course no record of it.

The government's attempt to change this history was unprecedented. We could find no example of where a court had granted such a remedy

Of course, the very nature of such a change renders it undiscoverable. Who knows how many records have been changed and records of that change been expunged.

The fact that they said this, without pointing out that it was unknowable, makes me wonder if they know of another request that they can't talk about.

Awesome job, EFF. You are doing important work.

Curious: we have laws against "attempted murder", are there any laws against "attempted illegal redaction of court proceedings" that can be applied here? My concern is that there is no deterrent to this being attempted again, perhaps in a context that is less visible, and less ably defended, than in this case.

In general no, parties have pretty wide latitude to file motions. If the law doesn't permit the request, the remedy is just that the court rejects it. That's the basis of the adversarial system; parties are expected to try to make any argument in their favor they can possibly come up with, and the court's job (or jury's job) is to weigh them. So it's disfavored to punish someone who makes a losing argument beyond just the fact that they lose the argument. In rare cases an attorney can be sanctioned for lawyering way out of line ("Rule 11 sanctions"), but that usually requires a pattern of over-the-top behavior, ignoring the court's instructions, repeated frivolous arguments, etc.

That's too bad. I would assume that the USG would be held to a higher standard - but IANAL.

The government does plenty of plainly illegal behavior, which we should work on fighting, before worrying about whether "grey area" behavior should be legal.

Minor clarification: the role of a jury is not to rule on the merit of a motion such as this, but rather to decide the facts of a case. The presiding judge is responsible for deciding the law.

"the role of a jury is not to rule on the merit of a motion such as this, but rather to decide the facts of a case"

I don't think that's correct.

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

Jury nullification has nothing to do with ruling directly on the merits of a motion of the type at issue here. It might involve indirectly considering the merits of a loosely-simialr motion in the course of rendering a criminal verdict, but even that wouldn't apply to this specific motion in its context, since that was not a criminal case.

Motions like this aren't decided by juries, and are orthogonal to Jury Nullification.

Jury nullification is an artifact of the existence of trial by jury and the prohibition on double jeopardy.

It's inevitable that juries can effectively decide law, but it is not their purpose or role.

Jury nullification, i.e. deciding on the law itself is a right of juries. It is not true that juries can only decide the facts of a case.

Jury nullification affects only a single case. It does not affect or determine the law. A side effect is that it may cause prosecutors to stop enforcing certain laws and/or cause the legislative branch to reconsider a law and rewrite it or get rid of it.

I didn't say it determined the law, and of course it affects only the single case. The point is they're allowed to make their decision based on whether they feel the law itself is just, not just on the facts of the case.

And I didn't say the jury can't make such a ruling, only that it isn't their role. Which it isn't. Technically I suppose they are "allowed to" in that they aren't explicitly barred from doing so, but really that's just taking advantage of a privileged position.

How about premeditated subversion of the constitution? Can't they get jail time for attempts?

What kills me is that this is all happening under the leadership of a president who once taught constitutional law. If someone with his background won't stop this kind of thing from happening, who will?

If Obama was inclined to stop this sort of thing he wouldn't have ended up a presidential candidate in the first place.

That's true and this is a very important point. The system selects against people who would disturb the status quo too much - therefore if you get to the point of being elected president, you are most likely compliant enough and so deep in various deals that you don't have much choice except than to do what various power groups want you to.

The sad part is that disturbing the status quo was Obama's campaign platform.

"Change," he called it.

If a politician ever runs with a campaign branded "Irony" they will get my vote. Even if they are completely mad.

How about satire? You could support Die Partei [0].

[0]: http://www.economist.com/news/europe/21610332-election-satir...

I voted for him in part because he seemed to be in strong opposition to policies like these. It seems like a total 180 from the positions he was espousing in the campaign before the 2008 election.

http://www.youtube.com/watch?v=B6fnfVJzZT4 http://www.cnet.com/news/obama-no-warrantless-wiretaps-if-yo...

It makes you wonder what exactly was said or done, doesn't it.

Keep in mind this NSA stuff was in place before Obama, but I do wish he'd take a much stronger stance in getting rid of it. I assume that it isn't Obama so much as the whole system is super fault-tolerant such that one person can't change it; even when that one person is the President. I'm sure if enough outrage came from the public, something would change. But getting the public hyped up over anything other than celeb gossip and American idol.... good luck. I think those in power know that too. Keeping the public too busy with trivial things and getting their souls broken 8hrs a day at some non-rewarding job. Too tired to bother with anything else outside their immediate needs.

When I look back at US History, the really big changes in society/law required a significant uprising of the people.

I assume that it isn't Obama so much as the whole system is super fault-tolerant such that one person can't change it; even when that one person is the President.

There might be a political price to pay for changing it, but President Obama has absolute authority to end programs like this. He chooses not to. Unlike most of hn, I don't really mind, but you shouldn't let him off the hook so easily. The executive powers of the President are substantial, and they're one of the things you should think about when choosing someone to fill the office.

Constitutional Lawyer doesn't mean protector. Knows how to haxor with the best of them. p3wnd

Us. Americans who don't think the program is right.

There is a famous story about activists meeting with Franklin Roosevelt. He listened to them and then said "I agree with you. I want to do it. But you must make me do it."

What he meant is that serious political change must come from the bottom up. It must arise from the obvious wishes of the population in order to carry enough legitimacy to make it through the democratic system.

The fact is that not everyone in the U.S. feels the way we do about the NSA's activities and the Snowden leaks that revealed them. In fact, it's a near even split, although sentiment seems to be moving our way.

http://www.pewresearch.org/fact-tank/2014/04/15/nsa-coverage...

Tangential question: reading the transcript, I'm surprised that two of the three parties' lawyers are attending the court session via speakerphone. Is that common?

Yes, it is fairly common. Keep in mind that this was a hearing on an emergency motion, so it was probably scheduled fairly quickly. There is significant variation in the scale of legal proceedings: full-blown trials pretty much require the physical presence of counsel, but early stage hearings are frequently conducted by phone.

Thanks EFF for fighting this.

>The government's attempt to change this history was unprecedented.

How does the EFF know this was unprecedented? If there had been a precedent, wouldn't it be hidden?

I would expect the EFF to avoid statements that seem naive, even while I appreciate what they do.

If it's hidden, then its assumed to be unprecedented until evidence presents otherwise. There aren't going to be forward assumptions of precedents without evidence.

We need a service like this[1] to track the changes from all courts, not just the SCOTUS[2].

[1] http://www.dailydot.com/news/twitter-tracks-supreme-court-ch...

[2] http://www.nytimes.com/2014/05/25/us/final-word-on-us-law-is...

That wouldn't help in this instance: you can't track changes in a document you don't have. The court documents were not released to the public until after all of this happened; that was the point.

> We could find no example of where a court had

Given the exorbitant fees the PACER system charges, I doubt anyone, even the EFF, could afford to find such a case out of all the federal court cases.

Well, given the nature of the thing requested, it is actually impossible to find historic examples of it until now (when the request was denied)

Loving the url for Shubert v. Obama: https://www.eff.org/cases/shubert-v-bush

That's because it was originally filed when Bush was in office. When you sue a government official in his or her official capacity, the caption (sometimes, but especially on appeal) gets updated when the office changes hands.

Historical URL. Bush was the original president when first filed.

"US Sought Permission" ? That's an odd phrasing. Who did the US ask?

The US is a party in court asking the judge.

The executive branch prosecutors sought permission from the judge, who denied them. Pretty basic separation of powers, really.

Police state mentality in action.

Everything faded into mist. The past was erased, the erasure was forgotten, the lie became truth.

-- George Orwell, 1984, Part 1, Chapter 7

Those who control the present, control the past and those who control the past control the future.

It's great to see the government finally adopting more practices from recent work in software development.

You know, like git rebase and amending history.

If this were done using git rebase, anyone with their own copy of the repository would quickly notice the change and have a full record of the old and new versions.

From a political perspective then your local repo is wrong, always was wrong and owning it an act of subversion ;-)

Should have waited for gitcummulo, so you wouldn't have permissions to know there was a rebase.

What

https://accumulo.apache.org/ http://en.wikipedia.org/wiki/Apache_Accumulo

spun out of NSA

Ahh, but the bliss of rebasing isn’t without its drawbacks, which can be summed up in a single line:

DO NOT REBASE COMMITS THAT YOU HAVE PUSHED TO A PUBLIC REPOSITORY.

-- Pro Git, 3.6 - Rebasing

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