Justice Department Sues Telco For Daring To Challenge Its Secret Demands For Private Information

from the hubris dept

Thu, Jul 19th 2012 1:42pm — Mike Masnick

The US Justice Department really does seem to be completely drunk with power these days. We've written before about how the FBI is famous for abusing the powers of "National Security Letters" (NSLs) that allow them to demand information from service providers, financial firms and the like -- with a built-in gag order. A few years ago, we wrote about an ISP, Calyx, which challenged an NSL it received, and had to fight the DOJ in complete secrecy for years, until the DOJ basically dropped the request and allowed Calyx's Nicholas Merrill to go public with the details of the legal fight.

However, in news revealed this week, there is a second telco that isn't just challenging an NSL -- which is not only expressly allowed under the law, though now the DOJ is required to tell recipients this fact with the NSL -- but also challenging the whole NSL process itself. In response, amazingly, the Justice Department sued the telco, claiming that it failed to hand over the information requested in the NSL, as required by law. There's no way to look at this other than as a vindictive move by the DOJ.

Instead of responding directly to that challenge and filing a motion to compel compliance in the way the Justice Department has responded to past challenges, government attorneys instead filed a lawsuit against the telecom, arguing that by refusing to comply with the NSL and hand over the information it was requesting, the telecom was violating the law, since it was “interfer[ing] with the United States’ vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security.”

They did this, even though courts have allowed recipients who challenge an NSL to withhold government-requested data until the court compels them to hand it over. The Justice Department argued in its lawsuit that recipients cannot use their legal right to challenge an individual NSL to contest the fundamental NSL law itself.

All of this came out this week after it having been secret for some time, thanks in part to the EFF's efforts to get some of the information public. The Wall Street Journal appears to have identified the telco in question as Credo, a small Northern California company.

The DOJ's response to the challenge -- suing the telco -- is incredibly aggressive, and is clearly designed to create a massive chilling effect for any other organization who might challenge an NSL, despite the clear legality of issuing such a challenge. This kind of response from the DOJ, however, is par for the course these days. It's been quite aggressive in trying to silence those who criticize its efforts, and this is just the latest example. While the excellent Wired article linked above finds it surprising that the government allowed the evidence of this DOJ lawsuit to become public, I don't think it's that surprising. If the goal is to create chilling effects and intimidate lots of others into not challenging NSLs, then letting it be known that you sued a telco who tried would certainly get the job done.

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Filed Under: chilling effects, doj, justice department, national security letters, nsl, privacy, surveillance
Companies: credo, eff

22 Comments

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drew (profile), 19 Jul 2012 @ 2:00pm

Too depressing
Think I'm going to have to stop reading here, it's just too damn depressing.
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mischab1, 19 Jul 2012 @ 2:14pm

I've never really thought of Credo as small but compared to AT&T and the like, I guess it is. :-)
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Anonymous Coward, 19 Jul 2012 @ 2:16pm

The good news is that the DoJ is not too busy with its power expansion efforts to indicate that it might make some arrests in the HSBC case at some point, maybe.

It's nice to know that money laundering for drug cartels and terrorists is still a sometime, maybe priority, even while the DoJ concentrates on important stuff like expanding the DoJ's power and illegally bringing civil law based criminal charges against entities entirely outside US criminal jurisdiction, as part of its crucial fight against the evil that is illicit file sharing.
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Anonymous Coward, 19 Jul 2012 @ 2:23pm

More on NSLs
NSLs are also demand information from people, not just service providers and financial institutions

http://www.nytimes.com/2006/05/31/nyregion/31library.html

The gag order restricts talking about the gag order... even to others who have gotten the NSL and lawyers.

Neville Roy Singham: Principles to Protect the Internet is a good section of the discussion linked to below, and references NSLs and the librarians mentioned in the NTY article:

http://fora.tv/2011/01/19/WikiLeaks_Why_It_Matters_Why_It_Doesnt#fullprogram
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Anonymous Coward, 19 Jul 2012 @ 2:29pm

good ol' United dictatorship of America strikes again! we have ways of making you not talk!!
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Anonymous Coward, 19 Jul 2012 @ 2:30pm

So, quick question here. If I receive an NSL (with built in gag order), but I open it live and stream it to 5 or 6 or 1000 or so friends online, I'm I going to get in trouble? I mean, I didn't know what was in the envelope before I opened it, and I didn't know there was a gag order at the end of the letter, I was just streaming me opening my mail to some people. Can a gag order take affect before I even know about it? If not, why doesn't every company just have a few people with nothing to lose (hell, pull in a few customers with terminal illnesses or some such) present when they open their mail, and if those customers just happen to talk about it and end up in and out of court (with the best representation the company can provide) for the 2-6 months they have left to live, oh well?'

Just a (admittedly not very well formed) thought.
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Rikuo (profile), 19 Jul 2012 @ 2:39pm

Re:
Given this is the US government, they'll more than likely charge you with not having foreseen that you'd get an NSL with built in gag order, given how the DoJ is just making up laws to fit charges.
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Anonymous Coward, 19 Jul 2012 @ 2:47pm

Re: Too depressing
You have to get amusement from the trolls and hyberbolic arguers to balance the absurd sadness of some of these articles.
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gorehound (profile), 19 Jul 2012 @ 3:02pm

Re: Too depressing
Nearly every day just reading the News is to Depressing.The Government really sucks.I do not want to be casting my Vote for either asshole corrupt parties as they will both screw me over one way or the other.
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The eejit (profile), 19 Jul 2012 @ 3:23pm

Re:
It's amusing to see the hypocrisy in action: one Hong Kong-based business? SHUT. DOWN. EVERYTHING! The other - "Meh, w/e."
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hank, 19 Jul 2012 @ 4:44pm

The Official Intellectual Property blog of the 2012 London Olympic Games
Here's an idea, right before the opening ceremonies, redo the header of techdirt to announce that Techdirt is the "The Official Intellectual Property blog of the 2012 London Olympic Games" and state factually it's an obvious ironic parody. Let's see how many hurried morons come out to play.
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Anonymous Coward, 19 Jul 2012 @ 5:42pm

Re:
I'm I going to get in trouble?

You remember the Fifth Amendment? The part where it used to say �due process of law�? Well, those two words, �of law� have been deleted from the text.

�Attorney General Holder: Due Process Doesn't Necessarily Mean a Courtroom�

[Attorney General Eric Holder] said extrajudicial killings are legal if they are carried out after due process, clarifying that that doesn't necessarily mean a courtroom.

Piss off the DoJ badly enough, and they'll just take you back and shoot you.

You don't have any more questions. Just stay out of trouble.
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Michael, 19 Jul 2012 @ 7:36pm

bring it on
I cannot wait for the global collapse. Its going to be the greatest moment in human history.
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JackOfShadows (profile), 19 Jul 2012 @ 7:57pm

Re: Re: Too depressing
I prefer 'despondent' myself. I didn't vote for any of the turkeys on offer in the primary and unless something radical in the way of propositions is upcoming, I won't vote in November. I've only missed one election in my whole life up until last June. My ballot went to the Persian Gulf while I washed up in Millington, TN.
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Anonymous Coward, 20 Jul 2012 @ 12:13am

This is why we must stop laws like the Patriot Act, SOPA and other freedom-stripping ones before they actually get passed. Because if we don't, it could take at least a decade before people even challenge it in Court, and who knows how many abuses the Government will do by then.

These days they are also learning to put protections against challenging the laws inside the laws themselves, defying the Constitution up to the breaking point. It's like they have no shame and sense of what should be legal and what shouldn't anymore. They just want more power, and they'll do whatever it takes to achieve it. US is in such a sad state.
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Anonymous Coward, 20 Jul 2012 @ 4:35am

The US is flirting dangerously with fascism...
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Michael, 20 Jul 2012 @ 6:25am

I'm very happy for that telco for taking a stand, as every American person and institute should, against anti-American actions such as those being committed under the banner of 'Justice.'
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Anonymous Coward, 20 Jul 2012 @ 7:06am

Re: bring it on
Please tell me that was in jest because that is a batshit insane thing to wish for.
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That Anonymous Coward (profile), 20 Jul 2012 @ 7:26am

Re:
for some of us, deep tongue kissing isn't flirting.
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Anonymous Coward, 20 Jul 2012 @ 7:40am

Re:
The US is flirting dangerously with fascism...

The US has gone well beyond flirting. At this point I think you could consider it a serious relationship.
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The Devil's Coachman (profile), 20 Jul 2012 @ 8:34am

Anyone who gets an NSL should publish it on the internet immediately
Failure to do so will only encourage the fascist idiots to continue sending them. Almost all of these moronic documents are open-ended fishing expeditions with no probable cause, and should be exposed as such. Any member of the public who believes these cretinous letters have any real value to national security is a dupe and a delusional sheep.
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Michael, 9 Sep 2012 @ 10:27am

2nd amendment
Where are all the people that tout the 2nd amendment as critical to avoiding an oppressive government from taking away peoples rights?
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