Court Again Says It's Okay For The Feds To Snoop Through Your Digital Info Without Telling You
from the that-old-4th-amendment dept
You may recall that in its quixotic attempt to go after Wikileaks, the US government has been snooping through the private communications of a bunch of folks they're trying to connect to the organization, including Icelandic politician Birgitta Jonsdottir and Jacob Appelbaum, who gets detained and harassed every time he re-enters the country. All of this came to light only because Twitter actually stood up to the US government and refused to just hand over info that was requested using the obscure 2703(d) process. Twitter also got the court to allow it to reveal the existence of the order (something that every other company which has received one has kept secret). A court eventually ruled that Twitter had to hand over the requested info.Following this, Jonsdottir, Appelbaum and one other person, Rop Gonggrijp, (represented by the ACLU and the EFF), chose not to challenge that ruling, but did appeal concerning the secrecy around the order -- asking the court to have the specific 2703(d) order unsealed -- arguing that they have the right to access judicial documents about themselves. However, last week, an appeals court rejected that appeal, and basically said that the feds can sniff through your digital data without your knowledge, and, well, too bad if you don't like it.
Even though the court did find that 2703(d) orders are "judicial records," which could make them subject to a right to access, they then claimed that, well, when the government investigates things, it should be able to do so in absolute secrecy, and who really cares about pesky little things like oversight or a right to know about it.
Subscribers' contentions fail for several reasons. First, the record shows that the magistrate judge considered the stated public interests and found that the Government's interests in maintaining the secrecy of its investigation, preventing potential subjects from being tipped off, or altering behavior to thwart the Government's ongoing investigation, outweighed those interests.The government gets to peer deeper and deeper into our lives, and we're less and less able to even know about it.
Further, we agree with the magistrate judge's findings that the common law presumption of access to § 2703 orders is outweighed by the Government's interest in continued sealing because the publicity surrounding the WikiLeaks investigation does not justify its unsealing. The mere fact that a case is high profile in nature does not necessarily justify public access.... Additionally, Subscribers' contention that the balance of interests tips in the public's favor because the Government approved the disclosure of the existence of its investigation by moving the district court to unseal the Twitter Order is adequately counterbalanced by the magistrate judge's finding that the "sealed documents at issue set forth sensitive nonpublic facts, including the identity of targets and witnesses in an ongoing criminal investigation."
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Filed Under: access to court documents, birgitta jonsdottir, jacob appelbaum, privacy, rop gonggrijp, subpoenas, wikileaks
Companies: twitter
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Closer and closer
to that world envisioned and Orwell did say,
1984 it is called and that day will soon come,
And then all our freedoms will be undone.
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Response to: Anonymous Coward on Jan 28th, 2013 @ 5:51am
He's not saying the government should turn over data on active investigations. If the police get a warrant to search through your shit, they have to somehow provide you a copy of the warrant. Here that doesn't happen. It's just more of the government pretending that the 4th Amendment doesn't apply to technology.
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See Twitter isn't the only one fighting back, nor Mike, nor other reasonably intelligent US citizens and corporations.
As for access to active investigations, it is a matter of due process that an accused has to be able to confront their accuser in all matters and know exactly what they are being investigated for if they find out about the investigation.
"“Google requires an ECPA search warrant for contents of Gmail and other services based on the Fourth Amendment to the Constitution, which prevents unreasonable search and seizure,” Chris Gaither, a Google spokesman, said"
Via wired
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Happy Data Privacy Day to you all, whomever you anonymous guys are ;)
[ a link to what Google is doing today ]
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/sarc
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It is, actually, a big deal. Warrants allow a person to push back if they feel the government has gone too far. In cases like this, the person might never know. Perhaps the 4th Amendment doesn't matter to you, but to some of us it seems important.
. I know you just like to criticize everything the government does because you hate the government and everything about it,
Nothing could be further from the truth. I'm a big fan of government that works well and recognizes it works for the people. But I think we have an obligation to speak out when we see abuses by the government.
I guess you believe in shutting up and taking whatever the government does to you, no matter how abusive. Odd, but so be it.
Do you think you should be able to go to the police station and look through all the detectives' paperwork for the cases they're working on?
No, of course not. But I do believe that if the government wants to search my house they have to show a warrant.
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Read the embedded opinion. It's ONLY about whether there's a First Amendment right.
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It's about whether there's a First Amendment right to access this information. There isn't. If down the road someone is indicted, then they would be able to access the information and bring a Fourth Amendment challenge.
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And while you guys are on the internet whining about perceived violations of constitutional rights, I'm studying so that I can actually defend actual people's actual constitutional rights. So yeah, tell me again how I don't care. I'm planning a career of protecting people's constitutional rights. What are you doing?
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I did some work last summer getting a law enjoined that violated the First Amendment. I didn't whine on the internet. I did something about it.
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It's because he disagrees, so seeks to belittle any discussion of it.
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Considering that life plus 70 is the international norm, you must think that the majority of people on earth are immoral and unjust because they have a different belief about the proper term of copyright than you do. Surely that should be the measure of a person's worth. "Agree with me about the length of copyright, or else I know you're not a good person." Good luck with that worldview.
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The majority of people on the planet don't agree that copyright lasting that long benefits anyone. Sure, they might agree that it's in law, which is a fact, but not so much when it comes to the benefits of upholding such a law and its penalties. You seem intent on defending this law regardless of the merits or lack thereof, and your posting history is indicative of you being "not a good person".
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Are you also advocating the merits of constantly extending life++? If so, care to elaborate?
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Of course there should be limits to government intrusion, just as there are limits to constitutional rights. Things need to be balanced, not completely slanted to one side or the other. I'm concerned with the bigger picture.
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There should be no limits to Constitutional rights, except when specific Constitutional rights come into conflict with each other. Then they must be balanced with each other.
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All constitutional rights are limited, and rightly so. This opinion shows how First Amendment rights are to be balanced against competing interests.
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I do not agree that balancing Constitutional rights with governmental power is legitimate.
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I'm not really sure how to make this any clearer. To the extent that the Constitution permits the government to act to protect the public welfare (and that's not a small extent), those are balancing factors.
However, the minute that we say that Constitutionally protected rights are to be compromised to external factors (such as a vague "public welfare" rationale, or because of "patriotism" or whatever), we have entered a very dangerous place.
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I'm not really sure how to make this any clearer. To the extent that the Constitution permits the government to act to protect the public welfare (and that's not a small extent), those are balancing factors.
However, the minute that we say that Constitutionally protected rights are to be compromised to external factors (such as a vague "public welfare" rationale, or because of "patriotism" or whatever), we have entered a very dangerous place.
The police powers of the states aren't mentioned in the Constitution except for the 10th Amendment which just says whatever's left after the federal government gets its powers belongs the states. Our constitutional rights are always balanced with other countervailing interests. Your right to speak in the park is curtailed by the state's right to close down the park at night for safety reasons. I'm not sure I understand what your point is since what you're suggesting is just not how constitutional rights work.
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Specifics?
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Wait...I think I might have gotten that backwards.
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Nowhere is the Fourth Amendment even mentioned in the embedded document. It was a First Amendment challenge.
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/jackass
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So you can't make the connection either. Got it.
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You seem to live a la-la land where the government does everything *by the book* and every body is above board, and abiding by the law of the land. Take off your rose colored glasses - our constitutional rights are under assault - all of them. Not just the first amendment, or even the second amendment like the gun guys will quite vocally tell you; all of them are under pressure - defend them all or GTFO.
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You're just spouting general rhetoric about how our rights are under attack. I'm asking specifically what this specific opinion has to do with the Fourth Amendment specifically. Mike brought it up, and I have yet to see why.
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If that doesn't speak to you at all about the fourth amendment, then we should be glad you're still in law school.
Even if we assume that the federal government does lawfully procure all necessary warrants (and I see no reason to assume they will), the ability to avoid disclosing their searches to the affected parties effectively removes the fourth amendment's protection against unreasonable search. If you cannot know when you are being searched, how can you assert your rights when the search is unreasonable?
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Even if we assume that the federal government does lawfully procure all necessary warrants (and I see no reason to assume they will), the ability to avoid disclosing their searches to the affected parties effectively removes the fourth amendment's protection against unreasonable search. If you cannot know when you are being searched, how can you assert your rights when the search is unreasonable?
The government gets a warrant based on a reasonable suspicion standard. If the government ends up indicting someone, that person would then be able to challenge the sufficiency of the showing made in the warrant application. There is no loss of the ability to challenge an unlawful search. The fact is that this is at the pre-indictment stage. Once there is an indictment, there is a panoply of protections given to a defendant. You're trying to make this sound like the big bad government can get away with shitting on our rights. I don't see it.
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I see. Only once we reach the indictment stage can there have been any wrongdoing in the investigation. I suppose if the government fails to obtain a proper warrant, or obtains one against a citizen's reasonable expectation of privacy, but doesn't end up pressing any charges, then that citizen has not lost his right to security against unreasonable search because he wasn't indicted! Thanks for clearing that up.
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Don't be such a nit. The neutral magistrate who issues the warrant is there to assess whether reasonable suspicion has been articulated. We're talking about active investigations where the court can not only keep the warrants sealed, but it can also issue gag orders so that people that find out about it don't mess up the investigation. Sorry, but I prefer to let law enforcement officers do their job. I love the ACLU and the First Amendment, but I also recognize that sealing things and issuing gag orders is sometimes necessary for law enforcement to do their job.
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So long as you also recognise that I have adequately pointed out to you the parts of the opinion which bring out the fourth amendment concerns, as well as acknowledge that conceding the ability to gag search warrants may include as collateral damage the loss of some of the protections of the fourth amendment, you are certainly welcome to your opinion that such concession is necessary.
I don't agree with you, though.
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I don't agree with you, though.
What's the concern? That the government won't really have a "reasonable suspicion" (which is a low standard)? That the magistrate won't be able to be impartial? Where's the Fourth Amendment violation that's so worrisome that we should meddle in the early phases of an ongoing investigation?
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So frustrating...
And the sheeple of the US are content in letting it happen.
Actually I'll go on a conspiracy tangent for a moment - the people in power, along with mainstream media, are distracting the sheeple from noticing that this is happening.
Either way it's happening and not enough people are fighting it nor is there enough publicity about these types of actions and court rulings in favor of these actions.
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Let's see if I've got that
Yeah, that sounds right. Everyone knows the government's interests are heavier... "Secrets for me, but not for you" is exactly the opposite of transparent government that limits corruption and abuse.
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Well we need an encrypted message system with your own key, no one else can unlock it and then when the feds want the info they are welcome to it. If they want to read it they have to contact you to get the key. Then you demand a subpoena Real simple.
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The judiciary is a branch of government. What did you expect them to say?
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really
If the governements around the world do not stop this infringement of our right to privacy then we will force them to accept that not only will our legal files be encrypted and beyond their grasp but also all the files that they really do need access to to seek down those that would hurt our country.
There is no reason citizens should not have privacy, no reason at all. The excuse of terrorism is nothing more than a smoke screen and anyone that does not understand that is being blinded by the propaganda spewed out to gain access to everything we do and prevent any future uprisings against governments like happened with the arab spring.
And surely if the government is afraid the people will rise up against them they should be resolving the problems that put them in that situation not trying to just stop the natural venting of anger at the governments inane actions.
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