EFF in Court to Argue NSA Collection from Internet Backbone Is Unconstitutional
eff.org
eff.org
Love it. I hadn't thought of it like that before. Just because your search is fast doesn't mean it's not a search.
And another thing: the 4th Amendment clearly talks about searches and seizures, so saying "we're only collecting it, but not searching it" shouldn't work as an excuse either.
EFF should also make a case for how searching into your online Facebook accounts, Google accounts, chat accounts and so on, is the "searching through your home without a warrant and fishing for crimes of the 21st century" - or something along those lines.
A third party may hold the data for you, but people think of those accounts as "theirs", and they have an expectation of privacy for them. If you keep something in a bank deposit box, does the bank own your deposit box and everything in it? Or is that "yours", and you expect nobody but you to access that? Right now, the government much prefers to go to these companies and just ask them for what you have in those accounts, because it's so much easier for them to do that, than ask you. But I feel they are skirting an important right humans should be having here.
The "physical" protections seem to be so much better than the "digital" protections in the US law right now. It's time to change that, and make it clear that digital protections should be at least as strong as the kind of protections we benefit from in the real world.
For example, it makes no sense for email to be considered under a much lower standard than real mail. They are both exactly the same type of communication. It's just the medium that's different, but that shouldn't matter at all.
Not to nitpick, but how exactly is making a copy of something a seizure?
For example, taking a picture of the Washington Monument isn't remotely anything that comes to mind when I consider what "seizing the Washington Monument" would entail.
But it's kind of pedantic to argue over a single word.
The pertinent question is 'Do the views espoused by the Constitution as a whole (and subsequent case law) offer an opinion on the rightness of mass copying-without-exclusive access?'
Which is pretty thorny indeed. IANAL, but from what I've read it seems as though the Supreme Court is steadily trending more towards supporting an inherent right to privacy as a buttress against decisions that would otherwise feel wrong.
They first have to capture the data before copying. Fits the definition, in my opinion
It's not like they posted a man on a hill to watch the traffic go by (or a pair of blimps in MD...) They required AT&T's coöperation to proceed here. Like putting a checkpoint on the road.
You could get into the old argument about IP theft about say copying vs stealing a movie. But even then, creating the concept of IP monopoly was explicitly granted by the Constitution, it doesn't arise from the 4th Amendment. If copying something is a "seizure" then why does the copyright clause even exist?
My interpretation of "search and seizure" is the situation that: you keep and possess private stuff that you secure at a location that you control, the government shows up at your place, takes all of your stuff back to their warehouse to look through at their leisure. The government has your papers and you no longer do.
That seems fundamentally and qualitatively different from what's happening when you choose to use someone else's telecommunications equipment. Now, instead of hanging on to your private secrets, you've decided to go ahead and scroll them onto postcards and toss them into the mail (for safe keeping? really?). And then after sending them out into the World, you're shocked that your secrets somehow got out of your bag! It defies common sense.
Edit: I guess what I'm saying is, if you write something on a postcard and drop it in the mail, that behavior clearly indicates that you do not consider the information you put on the postcard to be private.
When people are using the internet, in some contexts there is a certain expectation of privacy, and in others, there is none. If I upload pictures to a public Facebook profile or a hosting website (such as imgur), I certainly don't expect that to be private. It's there and available for everyone to see/observe/collect/record/download/analyze/whatever. However, if I connect to a search provider using HTTPS, and the search provider vehemently claims they do not hand my data over to the government, I certainly don't expect the said provider to hand my data over to the government, or the government to try to subvert and crack the encryption between me and the website.
I think it's high time people stop trying to get what's unfair and immoral by trying to subvert the language. While you may eventually get what you want, it is corrupt and evil. No amount of legal "reinterpreting" changes that.
Yes, the passing of "information" is not new. But I believe the intercepting of mail, copying and then letting the original letter through to its destination without a warrant is illegal. (Isn't it?)
I'm no scholar of Revolutionary era America, but I'm pretty sure that if shit of that sort were going down, it would have gotten specific mention in the Declaration.
If you associate with someone that runs afoul of the law, why is it unreasonable to consider you? You seem to think the only possible outcome of actually examining your shit is incrimination. It cuts both ways, you know. You could be ruled out.
"The right of the people to be secure in their [...] papers [...] against unreasonable searches and seizures, shall not be violated"
Why should the amendment protect papers if it is only the physical page that is protected and not the actual information?
It is more of a question of what is reasonable -- does a person know who has access to their information? Do they put their information out there with the understanding that it isn't private? The very basic idea here is that people should know what rights and privacies they have, and violating the conditions where they can reasonably expect privacy should be illegal.
"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."
A plain English interpretation would seem to make the NSA slurping illegal, but a legal interpretation could be completely different.
(1) 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 (2) 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.
(1) being the protection, and (2) mentioning the loophole of warrants and protections on that as well. Searching digital information without a warrant violates (1). The legal way to do it is via warrants, and limitations on warrants are prescribed in (2).
https://smile.amazon.com/gp/charity/change.html?ie=UTF8&ref_...
And select EFF as your Smile charity. THEN get the browser extension to automatically redirect you to the Smile link:
Chrome: https://chrome.google.com/webstore/detail/smile-always/jgpmh...
Firefox: https://addons.mozilla.org/en-US/firefox/addon/amazonsmilere...
EDIT: I only use the chrome extension, if someone has a better FF extension just let me know and I'll change the link, that was the first one I found.
http://lesswrong.com/lw/lb4/shop_for_charity_how_to_earn_pro...
It's not the EFF, but if you believe in GiveWell, it's a fantastic way to make a sizable (and mostly passive) positive impact.
And the best part: It's stackable with Smile. Presumably, EFF could set the same thing up. (I believe Scott Alexander of SlateStarCodex.com has one set up to support his site as well, so it can't be that hard or restrictive)
>Jewel was filed in 2008 on behalf of San Francisco Bay Area resident Carolyn Jewel and other AT&T customers.
This isn't a new lawsuit, it has just taken forever to even get to this point. The main focus of this case isn't from the Snowden documents but the Snowden documents did open up the case to actually go forward without State Secrets censorship.
However, if we don't help US citizen for their democracy, we'll have no weight for ours.
We could hold ourselves to a higher standard, but we take the (without a doubt efficacious, but) low road.
Possibly impractical nowadays from a national security standpoint in the "you can't get there from here" sense, but lovely nonetheless.
It's essentially admitting that certain lines should not be crossed in allowing people a decent and dignified existence, but then proclaiming only 5% of the world deserves that dignity due solely to the accident of where they're born. You might as well be separating the world into 'people who matter' and 'people who don't', which, as we've learned through history both ancient and recent, provides a great basis for activities like torture and genocide. Not exactly what you'd hope for from an enlightened democracy.
In a strictly technical sense, the US Army is prohibited from disarming citizens of Iraq in their own country, for instance. But they might just do it anyway. Because said foreigners would not be able to petition for relief anywhere else but in a US federal courts, and there are currently several barriers to them initiating an action there, which largely do not exist for citizens in the US, that foreigner is usually unable to exercise those rights using strictly peaceful means.
In short, it's far easier to form your own militia and kill any agents of the US that you find in your own country. That seems like bad policy all the way around. It would be much better if the US just obeyed its own laws anywhere it goes in the world. It might even be prudent to set up a 12th federal circuit, with at least one district in each country with which the US has an extradition treaty, to support cases with jurisdiction established by Article III, Section 2, Paragraph 1: "and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." Such courts would be authorized by the Constitution, but as far as I am aware, none exist.
If there were a foreign circuit, it is likely that Guantanamo Bay detainees could file Habeas Corpus motions in it. Foreign banks could fight to restore their privacy safeguards while still serving US customers. Private military contractors might face civil suits from the families of people randomly gunned down in the streets of their own cities. If the US had to obey its own laws everywhere around the world, it would certainly devolve into pure chaos~
What I find most intriguing (or appalling) is that a District Court judge in the Western District of Washington (State) held in 1942 that a U.S. citizen who was tried, convicted, and sentenced in the U.S. Court for China was not entitled to Constitutional rights. Judge Black wrote in Casement v. Squier[0] that Petitioner Leroy Lomax, then-incarcerated on McNeil Island was "mistaken in his contention that the Constitution of the United States guaranteed him a trial thousands of miles beyond the boundaries of the United States." Lomax said that his confinement was unconstitutional because he had been denied a trial by jury (one of Americans, versus the bench trial he received).
Judge Black quoted the U.S. Supreme Court decision In re Ross[1], where Justice Field wrote "[t]he Constitution can have no operation in another country." Thus, the Petitioner in Casement was denied habeus corpus.
I've not studied law, so I'd like to hope that this was "clarified" or overturned, though I don't hold much hope.
0 - http://www.leagle.com/decision/194234246FSupp296_1271
1 - https://supreme.justia.com/cases/federal/us/140/453/case.htm...
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
By my plain, non-lawyer reading of the law, Judge Black was either misinformed or lying about the law. It hardly matters if you are beyond the boundaries of the US, if the US comes to you to claim jurisdiction over you.
It certainly is appalling. The Constitution must have operation over agents of the federation wherever they may go, even if not over citizens or other people, otherwise you end up with malicious workarounds like extraordinary rendition and Guantanamo Bay prison.
And while Oliver Twist is non legal canon, when the law is an ass, we should feel free to say so. The argument from In re Ross seemed very disingenuous, in that it claimed that a court established in a foreign country using the Constitution as the basis for its jurisdiction was then no longer bound by it thereafter. It is obvious to me, as a layman, that both Black and Field were seeking expedience rather than justice. I imagine that anyone seeking to overturn the precedent set by the Field opinion could simply petition as an expatriate filing income taxes, and claim it as sole argument against the 16th Amendment having operation in another country.
Let them know we won't accept the status quo.
The question is: if all of these crimes are legal and those with the power to ban them have no interest in doing so, what's left? And how long will it be until that happens?
(see what I did there with the metaphore thing :))
As noted above, however, all upstream collection — of which “about” collection is a subset — is “selector-based, i.e., based on . . . things like phone numbers or emails.” Just as in PRISM collection, a selector used as a basis for upstream collection “is not a ‘keyword’ or particular term (e.g., ‘nuclear’ or ‘bomb’) but must be a specific communications identifier (e.g., email address).” In other words, the government’s collection devices are not searching for references to particular topics or ideas, but only for references to specific communications selectors used by people who have been targeted under Section 702.
In other words, the NSA is searching for the communications of specific people - it's targeted collection. The EFF itself even concedes that they are filtering out wholly domestic communications[3]. Instead of questioning the specific procedures for targeting these people, the likelihood that they may fail and collect an innocent bystander's communications, the procedures dealing with incidental or accidental collection, etc., they are instead taking the stance that the filtering itself is illegal because a packet filter needs to see a packet before determining whether or not it matches the specific communication. As an analogy, if where to pull up my terminal and run:
$ seq 1 3 | grep -v 2 | grep 3 > out.txt
I think I see why the EFF is making that argument: in Clapper v. Amnesty International it was ruled that the plaintiff didn't have standing because they couldn't show that their specific communications had been collected. Jewel v. NSA would likely have the same issue, so to get around it the EFF is instead arguing that the very fact that the NSA is conducting any sort of packet filtering itself constitutes a search and seizure, regardless what safeguards are put in place or whether the filtering is targeted. I think they're grasping for straws with this one - I'd be really surprised if they win. If I were in their place, I'd probably FOIA the hell out of the 702 procedures and look for loopholes instead.
[1] https://www.eff.org/press/releases/eff-asks-judge-rule-nsa-i...
[2] http://www.pclob.gov/Library/702-Report-2.pdf
[3] https://www.eff.org/files/2014/07/24/backbone-3c-color.jpg
If you are in the bay area, I highly encourage you to go (this one is very near the Oakland 12th St BART). You are watching history in the making.
Ironically, that is exactly what tech was advocating for in the first place.
As to suits it's one of those fractal breakdowns with a lot of varity if you get specific enough. EX: You could say fat vs skinny ties, but the there is a wide range of patterns wich fit a wide range of shirt colors. Not just Red tie on white shirt.
Personally I like semi formal dress codes simply because they have a default and require minimal thought. Where casual has a lot of 'hidden' rules.
When I go out, I personally feel more comfortable in good looking, "business-casual" sort of clothes. That's generally a brown vest, some black pants and slightly fancy shirt, all of which I got for a total of 20 quid at a charity shop back in the UK. And yet, that set of clothes which probably costs less as a whole than the gaming shirt my buddy was wearing at the time got me an off-hand remark of "dressing up too fancy for a geek".
I'm very much a geek at heart and the guy knew it... but don't mistake the shirt-and-jeans culture for a "wear what you like" culture. It's a "wear what I like" culture, and the "what I like" is shirt and jeans.
A few coworkers said something to me, but I didn't think anything of it because (from my perspective) they didn't care about their own appearance. Then my boss told me that the company actually didn't have a dress code and I didn't need to dress like that; I assured him that I was dressed that way because I liked dressing that way. Then HR talked with me. That's when I finally took the hint.
The dress codes that most people are familiar with place a lower-bound on how you can dress. "No shoes, no shirt, no service", or "You're a groomsman, you can't show up to the wedding in a t-shirt you lunatic". The tech industry has a dress code, but it places an upper-bound on how you can dress.
My humble conspiracy theory? Upper-bound dress codes encourage social stratification. This is desired by people who are in power, but are surrounded by very clever and moderately well paid people (developers). Imagine if software developers stopped thinking of themselves as "others" and started assuming the role of respected professionals with all the social standing a respected professional typically gets.
I felt a little bad, but honestly they fit in better after that.
I generally just like to dress up as it makes me get in the zone of "work time" better. But I never have gotten called a slut i'll admit, but I do often get comments of "must have an interview today huh" and so on. I find the whole geek/nerd culture around clothes annoying as shit. For a group that professes to not care about the external person, we sure as shit do judge people on their dress.
That said, keep dressing up, it impresses the non nerds and interestingly allows you to drive conversations with them easier.
Also I got a comment today from a barista "you always wear the coolest sweaters" and then I explained where I get them. I dunno its fun finding cool clothes and I'm willing to share in my findings. So I think I will stick with getting my fashion insulted by nerds, and you should too.
Tell the jerks that call you not a geek to explain how to make a one instruction set computer off basic logic principles. Or whatever your speciality is really, if they flounder just go never judge a book by its cover. Then walk away and sashay it up is how I would handle those situations. Good luck!
In my experience - as a bystander, since I'm a man - that'd be a good way to provoke insults and (if the jerk knows you) defamation behind your back.
And just because I'm a man that doesn't mean I "roll" in a certain way.
So you are saying woman should be more concerned about their "reputation" then men? Sounds a little sexist to me... Hint, if you are going to give advice maybe you shouldn't involve gender when it is irrelevant.
You were not saying (as a man) you don't think it would be wise to confront someone who was rude to their face because they may talk behind her back? Sounds like advice... Oh, wait! It was just a warning!
Thanks for playing dude...
[1] My Oregonian wife is slowly turning me into a lumberjack.
I think it is a generational thing, dressing up to me is mostly getting into your sheep B.S. clothing to make whatever you are doing look better. I have also been working in the game industry where suits usually mean you aren't a good fit or it is someone to probably not trust i.e. publisher/salesman.
I think for court you should put on your best, but in most cases I distrust the suit more than I trust it.
Courts, you see, and federal courts in particular, don't really have any power. They have a few marshals, but by and large they're not directly in charge of the people with the guns. Courts have power only because everyone agrees to abide by their authority. Wearing a suit, standing when a judge enters the room, addressing the judge as "your Honor," is all part of a ritual where we acknowledge the solemnity of the proceeding and collectively reinforce the binding authority of the court and its judgments. The details of the ritual are, of course, arbitrary. What matters is that everyone partakes in the ritual.
The practical significance is this: if the judge rules against the government in this case, the executive branch will have a choice to follow the order or not. It is indeed a choice--the executive branch has all the guns, after all. The price of ignoring the order is a loss of moral authority and public support. The purpose of the ritual surrounding the proceedings is to make this expensive. You want people to be offended and feel violated that anyone would ignore authority that they collectively sanctioned by engaging in this ritual.
To make a value judgement here: I think it's a perfectly reasonable thing if courts became more accessible to the general population. Whether it be through relaxed attire, language, or physical layouts -- discarding some of the cultural detritus of rituals of years past wouldn't bring the court system to it's knees because of a lack of respect. Rather, it would show the general population that judicial on-goings aren't some esoteric world that they need to think sacred. (Because really, why should they? The courts are for and by the people.) Accessibility would in turn bring understanding, and understanding would turn the current atmosphere of detachment (re: general public from the courts) into a more meaningful respect.
So does it matter or not?
My secondary point, apologies for the lack of clarity, is that relaxing courtroom procedures and the mystique surrounding them would allow for greater transparency. Greater transparency and a more approachable set of procedures would allow for greater understanding throughout the general population. A greater understanding of our legal system (my second definition of respect), minus the fluff surrounding it (language, attire, etc.), would be a good thing in my book.
I understand that there is inherent complexity in matters of finesse, whether it be law, engineering, or programming, but I don't think we need to actively propagate stifling behaviors like suggesting that suits (and the equivalent for women) must be worn at all times, forever, in the courtroom.
- Exclusionary Rule: http://lawcomic.net/guide/?p=1585
Frankly speaking, I don't think that a whole generation (or several) of people wearing t-shirts in court is going to do much to change the judiciary's ability to reign in the executive. If current practice is any indication, the executive will flout judicial decisions just as it already does with legislative ones: behind closed doors and with "creative" interpretations of said decisions.
Keep in mind that in court rooms, people are sometimes literally facing life or death. Or they're facing bankruptcy or instant wealth. It's a tense situation and the judge is the main one responsible to keep order.
They dread going to jury duty because they'd rather spend their time doing something that contributes to their own personal well being (doing a job, raising a family, having fun).
SecurityAwareCustomer: "I've noticed that my VPN and ssh connections have started to lag & disconnect frequently"
Comcast: "We've gotten several reports on this issue. To better serve our customers we've implemented a software designed to optimize network traffic routing. To do that, the software must do some deep packet inspection. Unfortunately, if a traffic is encrypted this software must go through all its known packet types before determining that it's encrypted. This takes time and also because the incoming buffer might fill up before it's done determining the packet is from an encrypted stream, said packets might get dropped entirely."
SecurityAwareCustomer: "So, encrypted traffic's performance is severely degraded then?"
Comcast: "We're sorry for any inconvenience this may cause"
SecurityAwareCustomer: "Couldn't you check if it's known encryption first, then try other packet types?"
Comcast: "The software vendor has been made aware of the issue. Due to net-neutrality laws & regulations, the vendor was assigned to us by the USGov and they must review any proposed changes to the software. This legal process could take a long time."
SecurityAwareCustomer: "How long?"
Comcast: "Thank you for choosing Comcast!"
-Comcast hangs up phone-
SecurityAwareCustomer: "............huh"
Assuming that the NSA would continue on regardless of winning or losing is to have zero confidence in our legal system. While there may be some ground for skepticism, using all available tools is absolutely appropriate.
That said, I don't disagree about encryption being the real answer. We've gone too long without end-to-end encryption by default.
But that doesn't mean that we shouldn't be fighting on both fronts. End-to-end encryption will take a while, why not fight the fact that they're doing it at the same time?
The court thus faulted them [the ACLU in ACLU v. NSA, 493 F.3d 644, 648] for “assert[ing] a mere belief” that the NSA eavesdropped on their communications without warrants. Id. This failure of proof doomed standing. Ultimately Jewel may face similar procedural, evidentiary and substantive barriers as the plaintiffs in ACLU, but, at this initial pleading stage, the allegations are deemed true and are presumed to “embrace the ‘specific facts’ needed to sustain the complaint.” [0]
>>>
EFF is on a fishing expedition. I am not unsympathetic. But this judicial arm-twisting and absurd twisting of language / law needs to stop as the road it opens is not helpful to our democracy. They will never be able to justify their claims with anything that will pass evidentiary muster.
Supporting the EFF is all fine but generally a waste of time and money for effecting real change. The only way these programs end is if Congress is full of people who want this to stop and will ensure that it does.
If an obscure libertarian like Grover Norquist can dominate electoral cycles with a "Taxpayer Protection Pledge" why can someone not similarly dominate electoral cycles with a "Privacy Protection Pledge"? Demand every presidential candidate sign it, etc. Make it a real wedge issue.
I wonder if the answer is that US citizens don't care because they don't really see how they are harmed? They believe the Govt is protecting them by doing this?
[0]: http://cdn.ca9.uscourts.gov/datastore/opinions/2011/12/29/10... [pdf]
If this is the only way, I have little hope.
So good luck with that approach.
I, for one, prefer when the 1% are not so influential in politics.
(Here I kind of wish we had a "facts we wouldn't know without Snowden" mock-HTML tag.)