DOJ Argues Secret Ruling Over Secret Unconstitutional Surveillance Must Remain Secret Because It's Secret

from the and,-you-know,-it's-secret dept

Mon, Jun 10th 2013 7:31am — Mike Masnick

About a year ago, after a lot of pressure from Senator Ron Wyden, the government finally admitted (late on a Friday) that, yes, indeed some of its surveillance efforts had been found unconstitutional for violating the 4th Amendment. But they didn't explain what, nor did they reveal the FISA court ruling which made that assessment. Since that time, the EFF has been fighting the government to get it to reveal the ruling. The DOJ refused to release it following a Freedom of Information Act (FOIA) request, and later said that even if it wanted to, it can't release the document, because only the FISA Court (FISC) could release it. But, in an earlier ruling in a different case filed by the ACLU seeking to reveal a FISC ruling, FISC had said that FISC couldn't reveal it, and the ACLU needed to seek the document from the DOJ. In other words, both the DOJ and FISC are pointing fingers at each other, saying that only the other one can reveal the document. In response, the EFF has asked for confirmation from FISC that if a district court rules against the DOJ and tells it to release the document, that FISC will actually do so.

Now, the DOJ is fighting back with the most circular and ridiculous logic imaginable:

In its response filed with the FISC today, the government offers a circular argument, asserting that only the Executive Branch can de-classify the opinion, but that it is somehow prohibited by the FISC rules from doing so.

The government’s argument is guaranteed to make heads spin. DOJ earlier argued that it lacks discretion to release the FISC opinion without the FISC's consent, but DOJ now argues that if the FISC were to agree with EFF, “the consequence would be that the Government could release the opinion or any portion of it in its discretion.” But FISC material is classified solely because the Executive Branch demands that it be, so release of the opinion has always been a matter of Executive discretion.

Frankly, it’s difficult to understand what DOJ is saying. The Government seems to have a knee-jerk inclination towards secrecy, one that often – as in this case – simply defies logic. The government's bottom line is this: their rules trump the public's statutory rights. But it's not the province of the Executive branch to determine which rights citizens get to assert.

Basically, the finger pointing continues. However, considering the increasing concern about vast government surveillance, it certainly seems like the government should start looking into being a hell of a lot more transparent, and it could start by giving up this game and releasing that FISC ruling.

Doj Opposition to Eff Motion 06 07 13 (PDF)Doj Opposition to Eff Motion 06 07 13 (Text)

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Filed Under: 4th amendment, doj, eff, fisa court, fisc, foia, nsa surveillance, surveillance

51 Comments

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Jay (profile), 10 Jun 2013 @ 6:20am

/circlejerk
I'm pretty sure that the DoJ hangs out in 4chan.

I've never seen such an organization troll so professionally...
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Alana (profile), 10 Jun 2013 @ 6:21am

[This comment has been redacted by the Secret Agency of Secret Secrets.]
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Anonymous Coward, 10 Jun 2013 @ 7:45am

Mike--

I haven't seen you this excited in a while. I'm happy for ya. I know how great this all is for a government hater like yourself. Milk it, baby! Milk it! Milk it for all it's worth!!! Spread that FUD! Spread that hate! Yea!
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- Anonymous Coward, 10 Jun 2013 @ 7:51am
  
  Re:
  Thanks Kanye.
  [ link to this | view in chronology ]
- Anonymous Coward, 10 Jun 2013 @ 7:53am
  
  Re:
  How is this FUD?
  
  He's calling out terrible arguments from people who are using every trick in the book to avoid letting people realise what they've been spending tax payer money on.
  [ link to this | view in chronology ]
- Anonymous Coward, 10 Jun 2013 @ 7:53am
  
  Re:
  You hate TD so much you'll even troll an important topic like the government running amok? The rights of the people are not trivial and reining in governmental organizations that abuse the public's rights is an important topic.
  
  However, as you want nothing better than to troll TD without contributing to the conversation, you must be a sad and frustrated little man.
  [ link to this | view in chronology ]
  - This comment has been flagged by the community. Click here to show it
    
    Anonymous Coward, 10 Jun 2013 @ 8:13am
    
    Re: Re:
    I'd love to contribute to the conversation with Mike. But he keeps running away rather than discussing his beliefs on the merits. Wonder why? Hmm....
    [ link to this | view in chronology ]
    - art guerrilla (profile), 10 Jun 2013 @ 8:42am
      
      Re: Re: Re:
      STFU, you worm-tongued pussy...
      [ link to this | view in chronology ]
      - That One Guy (profile), 10 Jun 2013 @ 8:44am
        
        Re: Re: Re: Re:
        Please don't sink to the level of the trolls with the name calling, just hit report and move on.
        [ link to this | view in chronology ]
        
        Rapnel (profile), 10 Jun 2013 @ 11:00am
        
        Re: Re: Re: Re: Re:
        Fuck that, we're not politicians. 'Guy's a creatin and uses a public forum where an email conversation with the target of his affections would suffice to further his interest of having a discussion. He doesn't want to communicate with us but chooses to dish dirt and dodge all topics, great and small. So yeah, he's a pussy and deserves to know in order to consider remedial action.
        [ link to this | view in chronology ]
        
        That One Guy (profile), 10 Jun 2013 @ 7:07pm
        
        Re: Re: Re: Re: Re: Re:
        And if he was at all interested in what other people said or thought, either of him or in general, you might have a point, but people like AJ simply do not care to engage in meaningful discussions, but merely wish to cause as much anger and frustration as they can, hence the 'sinking to their level' bit is nothing more than giving them exactly what they want.
        [ link to this | view in chronology ]
    - That One Guy (profile), 10 Jun 2013 @ 8:42am
      
      Re: Re: Re:
      Perhaps it's because you have the mental maturity of a child(tantrum throwing, name calling, and projecting your actions on everyone else included) and are not worth talking to?
      
      http://www.techdirt.com/articles/20120818/01171420087/funniestmost-insightful-comments-week-t echdirt.shtml#c1210
      [ link to this | view in chronology ]
    - Anonymous Coward, 10 Jun 2013 @ 8:57am
      
      Re: Re: Re:
      Why would he discuss his beliefs with a toddler?
      [ link to this | view in chronology ]
      - This comment has been flagged by the community. Click here to show it
        
        Anonymous Coward, 10 Jun 2013 @ 10:37am
        
        Re: Re: Re: Re:
        LOL! Wanting Mike to discuss whether he thinks copyright infringement is immoral or not doesn't make me a toddler. The fact that he refuses to discuss it, despite having thrust himself to the forefront of the copyright debate, only makes him look bad. Why's he so scared to state a simple opinion on so basic an issue? Hmm... It's almost like he's a scared little child who can't be honest. Weird.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 10 Jun 2013 @ 10:59am
        
        Re: Re: Re: Re: Re:
        You're right. What makes you a toddler is your childish insults, creepy obsession, and inability to form an argument.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 10 Jun 2013 @ 1:37pm
        
        Re: Re: Re: Re: Re: Re:
        Nope, that just makes him an infantile stalker.
        [ link to this | view in chronology ]
    - Ruben, 10 Jun 2013 @ 9:48am
      
      Re: Re: Re:
      LOL.
      
      Just Lowery being Lowery.
      
      Nothing to see here.
      
      Move along.
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    - Anonymous Coward, 10 Jun 2013 @ 10:19am
      
      Re: Re: Re:
      Mike!
      
      Y u no debate me?!
      [ link to this | view in chronology ]
      - This comment has been flagged by the community. Click here to show it
        
        Anonymous Coward, 10 Jun 2013 @ 10:40am
        
        Re: Re: Re: Re:
        Ask yourself this: Why won't Mike answer a simple question such as whether he personally thinks copyright infringement is moral or not? It doesn't matter who asks the question. He won't answer it. What's he so ashamed of? Why does he dodge that question every time no matter who asks it? Hmm... Almost like he's too scared to be honest. Weird. Not Mike. He's such a great guy. So honest and forthcoming. Not.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 10 Jun 2013 @ 10:59am
        
        Re: Re: Re: Re: Re:
        You are lying. Everyone knows you are lying. It's just sad at this point.
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        Anonymous Coward, 10 Jun 2013 @ 11:33am
        
        Re: Re: Re: Re: Re:
        Why are you obsessed with having the question answered?
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        btrussell (profile), 10 Jun 2013 @ 12:33pm
        
        Re: Re: Re: Re: Re:
        Is smoking pot moral?
        
        Is drinking alcohol moral?
        
        Is it moral to deny education unless you have big bucks to pay for all the copyright licenses?
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        guest, 11 Jun 2013 @ 12:39am
        
        Re: Re: Re: Re: Re: Re:
        no, no, yes?
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        btrussell (profile), 11 Jun 2013 @ 4:14am
        
        Re: Re: Re: Re: Re: Re: Re:
        2/3, but I gave you a funny.
        
        Don't forget, our morals are derived from THE LAW!!!
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        Dave_Z, 10 Jun 2013 @ 10:47pm
        
        Re: Re: Re: Re: Re:
        https://www.techdirt.com/articles/20120928/01061220536/why-its-tempting-troubling-to-use-copyright-a s-stand-moral-rights.shtml
        
        "Copyright in the US is an economic right, not a moral one."
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- Anonymous Coward, 10 Jun 2013 @ 7:56am
  
  Re:
  So, so the goverment's PRISM program is mentioned on techdirt and the trolles claim Mike will bury it
  
  Then the trolls claim Mike hates the goverment with no supporting evidence whatsoever.
  
  LOL
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  - This comment has been flagged by the community. Click here to show it
    
    Anonymous Coward, 10 Jun 2013 @ 8:11am
    
    Re: Re:
    Are you kidding me? The evidence that Mike hates the government can be found in every blog post he writes about the government
    [ link to this | view in chronology ]
    - Anonymous Coward, 10 Jun 2013 @ 8:33am
      
      Re: Re: Re:
      Given what the government is doing, I'm not do happy with them either. I am glad someone is bringing up the topic and spurring on discussion. This is not a trivial topic and has the ability to affect how the government behaves in the future.
      
      Feel free to roam off topic and use it and any other topic as an excuse to bash TD, it only makes you look shortsighted and stupid. I take it you are not concerned with an overreaching government?
      [ link to this | view in chronology ]
    - Anonymous Coward, 10 Jun 2013 @ 9:14am
      
      Re: Re: Re:
      There's a big difference between hating *abuse of power* and hating the government. Just like there's a big difference between hating *abuse of copyright* and hating copyright. That you appear unable to tell the difference between either situation says a lot about you... and none of it good.
      [ link to this | view in chronology ]
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        Anonymous Coward, 10 Jun 2013 @ 10:38am
        
        Re: Re: Re: Re:
        Oh, I understand all sorts of nuance. Still, it's clear to me that Mike hates copyright and the government. Perhaps, if you disagree, you could tell me the exact parts of copyright or the government that Mike likes?
        [ link to this | view in chronology ]
        
        John Fenderson (profile), 10 Jun 2013 @ 11:07am
        
        Re: Re: Re: Re: Re:
        You're the one making the active assertion that Mike "hates" stuff. How about you providing some kind of actual argument with evidence?
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        Anonymous Coward, 10 Jun 2013 @ 1:12pm
        
        Re: Re: Re: Re: Re:
        Please point out exactly where Mike hate either of those. You're the one stating that he hates both, whereas anyone with a logical mind at all can read what is posted to see what he dislikes about both without condemning either. He's advocated for shorter copyright terms, not abolishing it. He's called for fixes to the DMCA, not scrapping it. So tell us, how does he hate copyright? We already know that you can't tell the difference between hating a facet of a thing and hating the thing altogether.
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- btrussell (profile), 10 Jun 2013 @ 9:38am
  
  Re:
  Hi Harvey!
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pegr, 10 Jun 2013 @ 7:52am

Please keep in mind...
Secrets imply deception.
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Anonymous Coward, 10 Jun 2013 @ 7:54am

You've been found guilty by a court.
- Interesting, which court?
Sorry, that's secret. But we have evidence...
- Show me, so I can defend myself!
Sorry, secret too.
- By which method did you get this stuff?
Again, sorry, that's secret.
- And now about your punishment...
Is that a drone I hear outside...?
- Yup, that's secret too. But soon it won't matter for you anymore...
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- tracker1 (profile), 10 Jun 2013 @ 12:21pm
  
  Scary...
  I know this is getting flagged as funny.. but given the number of prisoners at Gitmo for over a decade now without a trial, I'd say it's leaning closer to insightful. Not to mention the actions of our government are clearly heading in this direction.
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Anonymous Coward, 10 Jun 2013 @ 7:56am

Yo dawg. I heard you like secrets...
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Anonymous Coward, 10 Jun 2013 @ 7:58am

Admit they were wrong, never!
"...it could start by giving up this game and releasing that FISC ruling."

That would require them to admit they were wrong and that will never happen.

Our only hope is that some FISC clerk/judge will be a good American patriot and leak this information.
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out_of_the_blue, 10 Jun 2013 @ 8:04am

Mike, apply your Google standard: "no evidence of real harm",
and then you circularly have no reason to want to know!

Mike can't be consistent that surveillance is universally bad because he's pro-Google. He can only keep avoiding the obvious similarities -- and that's QUITE difficult after explicit "leaks" that NSA has direct access into Google.

But on the up side, we've gone how many hours now without a Prenda law item?
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- art guerrilla (profile), 10 Jun 2013 @ 8:43am
  
  Re: Mike, apply your Google standard: "no evidence of real harm",
  you know, at this point, i'm just simply hating on your lame ass...
  FOAD, shithead...
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- Rapnel (profile), 10 Jun 2013 @ 11:11am
  
  Re: Mike, apply your Google standard: "no evidence of real harm",
  Yes, that's right, because google makes law, collects taxes, disseminates your taxes, determines constitutionality, wages wars, fosters secret courts, feeds the hungry and mines the totality of global data in order to protect your children. Oh and with the added bonus of finding shit you're looking for and selling ads.
  
  That's just fantastic, Blue and I'm so very glad you're with us. Your total comprehension skills are world class.
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Anonymous Coward, 10 Jun 2013 @ 8:30am

Best idea ever!
Public up in arms over massive, pointless spying?
Tell them "we're going to keep spying because nobody has the authority to stop us".
Yeah, that'll go over well.
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RyanNerd (profile), 10 Jun 2013 @ 8:48am

First [redracted] enemy and now this
So trampling all over the 4th amendment the DOJ takes it a step further and by making it impossible to face your accusor they stomp on the 6th amendment as well.
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ScytheNoire, 10 Jun 2013 @ 9:01am

Secrets
Any time a government is secretive it means they are doing something wrong. Bad governments. BAD! *smack with stick*
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Anonymous Coward, 10 Jun 2013 @ 9:02am

From the embedded document:

"A release involving the disclosure of some parts of a FISC opinion while concealing other parts creates a substantial risk of public misunderstanding or confusion regarding this Court's decision or reasoning."

As opposed to the current situation?
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PWGuy103, 10 Jun 2013 @ 9:17am

Even Chinese Citizens want more info
"Chinese internet users call for an Edward Snowden of their own"

http://qz.com/92632/chinese-internet-users-edward-snowden-nsa-prism-surveillance/

Score one for global democracy.
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- Michael, 10 Jun 2013 @ 9:41am
  
  Re: Even Chinese Citizens want more info
  As it happens to turn out, the ORIGINAL Edward Snowden is looking for a new country as we speak! This is a fine opportunity for those of you in repressed nations around the world to get your hands on your very own Edward Snowden!
  
  We can put him on eBay! Well, I guess we can put him on eBay.uk or something. A US company may lose it's funding sources and credit card processing providers if they get involved.
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RubyPanther, 10 Jun 2013 @ 10:01am

This is a pretty dumb story. First of all, the Courts have to tell us if it is Constitutional or not. Don't forget all the parts of the Constitution that lay out the different powers. And Courts can of course order things sealed. And so once we let Congress pass a law that creates a secret Court, yes, we then lose oversight. It sucks, but there is nothing un-Constitutional about it. And if there is a ruling that is Classified, and the secret Court also seals it, then they might be right; declassifying the ruling might very well defy the order.

There is lots and lots of room to dislike these things and complain about them without being shrill and wrong.
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- John Fenderson (profile), 10 Jun 2013 @ 11:09am
  
  Re:
  Are you arguing that something is Constitutional simply because the judicial branch says it is?
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- Anonymous Coward, 10 Jun 2013 @ 1:36pm
  
  Re:
  Once we have secret courts the constitution no longer applies. We cannot have secret laws and secret courts to have a free society. The two do not mix.
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Anonymous Coward, 10 Jun 2013 @ 10:12am

in other words, because it works for them, they are trying to use bull shit to baffle brains!!
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