Why Companies Should Start Regularly Reporting That They Have Not Received Secret NSA Orders

from the because-when-they-stop... dept

Wed, Sep 11th 2013 9:05am — Mike Masnick

One of the more amusing side notes in Google's recent filing to get permission to accurately report on how many FISA Court orders it receives, is the following footnote:

Nothing in this Motion is intended to confirm or deny that Google has received any order or orders issued by this Court.

It's amusing, because everyone knows that Google has received such orders, which is why this whole legal fight is happening in the first place. If it hadn't received any such orders, then it wouldn't have any standing to sue in the first place. Furthermore, when asked, the company could just easily say that it had never received any such orders (as a few companies have claimed). While those orders come with gag orders, there is no general gag order on people from saying they haven't received any such orders. That got me thinking that companies should really start saying publicly that they've received no such orders, because at a future date, if they can't say that officially, we'd know that they had received such an order, without them violating the gag order.

It appears I wasn't the only person to start thinking along these lines. Cory Doctorow has a fascinating suggestion, first talking about how librarian Jessamyn West came up with a similar idea to deal with the gag orders associated with the Patriot Act's Section 215, which librarians had protested loudly early on, in part because of the gag order on revealing that the government had ordered records be handed over. It involved putting up a sign in a library that says "The FBI has not been here [watch very closely for the removal of this sign.]" Smart. Doctorow then notes that a software company he's talking to, called Wickr, had planned something similar:

She explained that her company had committed to publishing regular transparency reports, modelled on those used by companies like Google, with one important difference. Google's reports do not give the tally of secret orders served on it by governments, because doing so would be illegal. Sell has yet to receive a secret order, so she can legally report in each transparency report: "Wickr has received zero secret orders from law enforcement and spy agencies. Watch closely for this notice to disappear." When the day came that her service had been served by the NSA, she could provide an alert to attentive users (and, more realistically, journalists) who would spread the word. Wickr is designed so that it knows nothing about its users' communications, so an NSA order would presumably leave its utility intact, but notice that the service had been subjected to an order would be a useful signal to users of other, related services.

Of course, then, as he's been know to do time and time again, Doctorow takes this basic idea, and ratchets it up a few notches with the following amazing suggestion:

This gave me an idea for a more general service: a dead man's switch to help fight back in the war on security. This service would allow you to register a URL by requesting a message from it, appending your own public key to it and posting it to that URL.

Once you're registered, you tell the dead man's switch how often you plan on notifying it that you have not received a secret order, expressed in hours. Thereafter, the service sits there, quietly sending a random number to you at your specified interval, which you sign and send back as a "No secret orders yet" message. If you miss an update, it publishes that fact to an RSS feed.

As he notes, the FISA Court might then try to argue that recipients of orders would need to lie, but forcing a company to flat out lie has even more Constitutional issues in the US than the already troubling concept of a basic gag order. This seems like something simple that absolutely needs to exist.

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Filed Under: dead man's switch, fisa court, free speech, gag orders

54 Comments

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Ninja (profile), 11 Sep 2013 @ 7:36am

This seems like something simple that absolutely needs to exist.

The fact that it needs to exist rings all sorts of red alerts. The worst type of dictatorship is the one that disguises itself as a democracy. It's not quite there yet but the basic Constitutional structures have already been eroded to some alarming degree. How long till they fall completely?
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Michael, 11 Sep 2013 @ 9:20am

How far we have fallen when we are asking companies to let us know if they HAVEN'T been forced to violate our civil rights by the US government.
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billy, 11 Sep 2013 @ 9:21am

I couldn't believe when Mr Doctorow wrote this, and I can't believe you support it. The time for silly word games is over. Its time to fight.
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Anonymous Coward, 11 Sep 2013 @ 9:21am

Or you could just vote for the other party next time.

Or maybe sign a petition.

That's all that can be done, right?
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Mike D, 11 Sep 2013 @ 9:31am

Billy's right.
I think the most appropriate thing to do at this point in the drama is to simply post the NSL if you get one.

There will be consequences, but that is how you fight.
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Mike Masnick (profile), 11 Sep 2013 @ 9:44am

Re: Billy's right.
I think the most appropriate thing to do at this point in the drama is to simply post the NSL if you get one.

There are smart fights and there are dumb fights. What you're suggesting is a really dumb fight. Anyone who does that will lose, and lose badly. It will destroy whatever business does that, probably with the execs in jail for a very long time. That's not a very smart way to fight these things.
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Alt0, 11 Sep 2013 @ 9:45am

Re:
You will know we got there when we start looting countries we bomb instead of re-building them.
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Anonymous Coward, 11 Sep 2013 @ 9:46am

This is similar to the old "joke"...
Do you still beat your wife?
Do you still deny you have received gag orders?
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Canuck, 11 Sep 2013 @ 9:51am

I am not Spartacus!
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Machin Shin (profile), 11 Sep 2013 @ 9:52am

Re: Re: Billy's right.
I think the question of that fight being smart or not depends on who you are really. I agree that for most people the end result would be jail with little effect for government.

On the other hand. What would happen if a company as big as Google put their foot down and said "We are done with this bull shit". Government then has to stop and question the economic impact of going to war with a company of that size. Even better is if a group all did it as one, you know, like Google, Microsoft, and others all working as a team.... Would our government be willing to toss our economy into the trash?
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out_of_the_blue, 11 Sep 2013 @ 9:53am

Yeah, well, how can we KNOW the corporations won't LIE?
Be fine cover for those in the conspiracy to set up the notion that they're being as honest as allowed!

STARTING, STOPPING, OR NOT STOPPING SUCH DENIALS WILL TELL US NOTHING!

No way to verify. Foolish to believe. Unreliable witnesses all. -- But of course pro-corporate Mike believes that all corporations are and will continue to be utterly honest.
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Anonymous Coward, 11 Sep 2013 @ 9:53am

Honestly I think this is pretty pointless since gag orders will just require that you state your still haven't received any secret orders.

Par for the course with everything that has been going on in the US.
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billy, 11 Sep 2013 @ 9:54am

Re: Re: Billy's right.
And word games are a way to fight it? What evidence of that do you have? The NSA destroyed the business before even issuing the NSL. Fix governments that make speech illegal, not your speech.
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out_of_the_blue, 11 Sep 2013 @ 10:01am

Re: Re: Billy's right.
@ "Mike Masnick": "There are smart fights and there are dumb fights. What you're suggesting is a really dumb fight. Anyone who does that will lose, and lose badly. It will destroy whatever business does that, probably with the execs in jail for a very long time. That's not a very smart way to fight these things."

So you're already weaseling. You try to portray Google as a champion, but know perfectly well that it's an amoral legal fiction. And you're primarily concerned for over-paid executives. Google has world-wide influence and tens of billions of dollars to fight with.

No, college boy, at some point we have to dig in heels and fight even if means a loss, or the evil keeps gaining.

Just QUIT implying that a mega-corporation which is in conspiracy with NSA will fight for The People. It's either a lie or naive.

Google is in advertising, not freedom. Advertising is commercial propaganda full of deceit.
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Todd Shore (profile), 11 Sep 2013 @ 10:02am

Running log
Create a running log, updated once per some interval, such as minute, 5 minutes, etc. If a log item is missing...
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Anonymous Coward, 11 Sep 2013 @ 10:04am

Re: Re: Re: Billy's right.
The economic repercussions are already piling up. Diplomatic relations are straining, economic contracts are being cancelled, and there is a HUGE warning label on the US now scaring off startups and innovators that the market is hostile and corrupt. Combine that with the US' 'litigate first, settle later' approach to any business even remotely similar in any way to an established organization and you have a terrible place to try and do business...
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DannyB (profile), 11 Sep 2013 @ 10:07am

Unconstitutional
> but forcing a company to flat out lie has even more Constitutional
> issues in the US than the already troubling concept of a basic gag order.

I think Lord Refa said it best: Ink on a page.

The constitution? It's mere ink on a page.
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Ninja (profile), 11 Sep 2013 @ 10:09am

Re: Re: Re: Billy's right.
Completely agree. Sure the execs can go to jail but it'll be huge and it'll be widely covered. Everywhere. The Government actions then will be indicative of what they are up to in reality. Will they go Hugo Chavez and seize the companies? Will they get out of the closet and go China style? Will they back off and the much needed reforms will start happening?

Mike is thinking some sort of martyr-free path. It's obviously not possible anymore (see Manning, Snowden etc) so what now? What did we learn from our great leaders? What can we do now? Can Mandela, Mr King, Gandhi etc etc guide us now? The smart fight could be to go all out right now. It seems the impact was not enough to take the Americans out of their slumber.
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jupiterkansas (profile), 11 Sep 2013 @ 10:16am

Re: Re:
We're re-building them so we can loot them. It's the only long-term strategy the U.S. adheres to.
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jupiterkansas (profile), 11 Sep 2013 @ 10:22am

Re: Re: Billy's right.
Not that I expect any real fighting to happen over this, but execs going to jail and businesses destroyed sounds like something that might happen in a real fight. If that's not happening, they're not fighting. They're just hoping to legally coerce one branch of government into making another branch of government behave. Good luck with that.
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Beta (profile), 11 Sep 2013 @ 10:22am

Re: Billy's right.
Advice to stand up to the government and damn the consequences is very fine, when it comes from those who have already done so.
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Mike D, 11 Sep 2013 @ 10:24am

Re: Re: Billy's right.
I disagree there. If you think that you're Constitutionally-protected and have a right to speak out about it, then it really isn't an option: you MUST speak out. It's your duty as a citizen.

It's painfully clear that this problem isn't going to go away without some dead heroes. Nobody wants to be the guy at the center of the firestorm, but it's the only way to create a firestorm. The existing government apparatus clearly is not capable of any meaningful reform, even if the desire were there.

The ad-driven media won't rally around a bunch of leaks without a victim headline to draw readers. We already know that as well.

Too bad I haven't received an NSL yet. ;)
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Beta (profile), 11 Sep 2013 @ 10:35am

defense in depth
The feds might well lean on the person holding the switch, with either legal threats or blackmail. What we need is an anonymous Dead Man's Switch for a company:

Determine which people in the office would have to know about the arrival of a secret order, and have them draw straws with a crypto protocol to determine which of them will set up and maintain the Dead Man's Switch. Nobody knows who's sending the signals, but when the order arrives the signals stop, the switch trips, the key has ceased to exist and everyone has plausible deniability.
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Gwiz (profile), 11 Sep 2013 @ 10:38am

Re: Re: Re: Billy's right.
No, college boy, at some point we have to dig in heels and fight even if means a loss, or the evil keeps gaining.

Pretty easy for someone without their chips on the table to say.

Would you really bet YOUR personal financial future and the financial futures of 40,000 of your employes on this fight against an adversary as powerful as the US government? And also run the risk of incarceration?

I doubt it.
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Anonymous Coward, 11 Sep 2013 @ 11:06am

warrant canary
rsync.net have been doing this for a while... http://www.rsync.net/resources/notices/canary.txt
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philosopherott, 11 Sep 2013 @ 11:06am

Re: Re: Re: Billy's right.
So what you are saying is that Google is too big [for the government] to fail?? There is something behind that. If a company is too big to fail (and the government has already said that is the case) all they need to do is "cross that red line" so that they force the government to fail them/ let them fail or the government needs to back down.
The question then is who is running the show then. If there are no repercussions for businesses that are that large, they exist out side of government control. Or is it that the curtain is pulled aside and rather than pulling strings corporations really run the show flat out?
Kind of gets scary at that point. If �Super Corporations� stand up to governments, some one needs to lose. The issue now is who do you root for?
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National Security Lapdog, 11 Sep 2013 @ 12:07pm

Re: Re: Billy's right.
Snowden's release of classified documents was a pretty "dumb" thing to do from a personal security standpoint, but he did so anyway and the American public is better off for it. The cost-benefit equation is likely different for narrowly targeted NSLs (where traditional subpoenas plus limited-time confidentiality would do as well), but for abusive NSLs releasing the info again requires again a different cost-benefit analysis.

We live in a political environment where the dumb thing to do is sometimes the right thing to do, and that's a shame.
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Ben (profile), 11 Sep 2013 @ 12:19pm

What is to stop them?
Presuming that the FBI/NSA/TLA know you are reporting that you have not received a NSL/court order [and come on, you have to admit it is likely the NSA will know] -- what is to stop them from including in that court order an insistence that you continue to report that you did not received that court order?
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Machin Shin (profile), 11 Sep 2013 @ 12:34pm

Re: Re: Re: Re: Billy's right.
In my opinion "too big to fail" does not exist, there is no such thing as a company that is too big to fail.

There is a huge difference though between the economy selecting a company to fail and the government selecting one. Google will one day fall, it is bound to happen, but if it happens naturally through the economy then whoever replaces them will be creating new jobs to fill the void.

On the other hand, if they stand up to the government and are shut down suddenly almost overnight. That would be crippling to the economy.

It does also bring up a bit of a worrying point that, yes Google does hold a great deal of power. Any large corporation does. In the end though both these corporations and the government only have the power that is given them by the people. It is far past the time that we as a people stand up and demand they listen to us.
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Anonymous Coward, 11 Sep 2013 @ 1:02pm

NSL's how does that work?
I don't understand the logistics of the NSL. Some company get's an NSL. Who at the company gets it? The CEO. How does that person effect the NSL's directions without telling anyone else?
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Anonymous Coward, 11 Sep 2013 @ 1:19pm

Re: Re: Billy's right.
So you can go to jail for exercising your 1st amendment rights.... hmmm I think you'd win in a jury trial at the very least
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uberfrood (profile), 11 Sep 2013 @ 1:50pm

Re: Re: Re:
I wish we were better at it, at least.
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uberfrood (profile), 11 Sep 2013 @ 1:52pm

Re:
Meet the new boss. Same as the old boss.
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Uriel-238 (profile), 11 Sep 2013 @ 1:52pm

Time to fight...
Are you doing anything fighty?

It's far easier to say it is time to fight than actually make a coup.

Before we encourage the lone wolves, we should have a plan of action. We should invoke peaceful methods while they still work.

Or determine for certain that they don't. (Since no one accepts that the attacks on OWS were such an indication.

Perhaps we should demonstrate to the world for certain that peaceful revolution is impossible. Where do we sign up?
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uberfrood (profile), 11 Sep 2013 @ 1:53pm

Re: Re: Billy's right.
You can trash the whole economy and get off scott-free. But spill the beans on the government's excesses and they'll hunt you down!
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One Nemesis (profile), 11 Sep 2013 @ 1:54pm

Have not recieved
"My company, as as of today, has not received xxx orders."
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Uriel-238 (profile), 11 Sep 2013 @ 1:58pm

But that would be an outright lie
Rather than an omission of truth. And that would be a clearer indicator of government failure.

On the other hand, we don't see anyone announcing that we can no longer sustain our current privacy policy for reasons we cannot disclose.

So the fact is these companies may already be lying for the FISC.
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Uriel-238 (profile), 11 Sep 2013 @ 2:04pm

Exercising your First Amendment Rights
You can be detained by the military.

At that point fuck the jury. Fuck habeas corpus. Fuck the rest of your life.
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Kevin Browning, 11 Sep 2013 @ 4:13pm

Re: Re: Re: Re: Billy's right.
ootb won't even use its real name, afraid of backlash from the 'Techdirt weenies and geeks.'
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Kevin Browning, 11 Sep 2013 @ 4:15pm

Re: Exercising your First Amendment Rights
I keep hearing this sort of thing. Last I was aware, the military had no police powers outside of the military, or military installations. Was there some rewriting of the law in that regard?
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That One Guy (profile), 11 Sep 2013 @ 4:56pm

Re: Re: Exercising your First Amendment Rights
Assuming memory serves, the NDAA authorized the military to lock 'terrorists' or those accused of it away without trial, for indefinite periods of time, as long as they got authorization from higher ups.

Even without that however, as 'prisons' like Guantanamo Bay amply demonstrate, all they have to do is label you an enemy combatant/terrorist and your odds of seeing freedom, or even the inside of a court room if they decide to lock you up all but vanish.
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Uriel-238 (profile), 11 Sep 2013 @ 5:21pm

Indefinitely Detained.
The regulation that the military can detain any illegal combatant, including US citizens in a battleground was augmented by the NDAA declaring US soil as a battleground.

One does not simply walk into Mordor. One lives there.
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Xploding_Cobra (profile), 11 Sep 2013 @ 7:09pm

Re: Yeah, well, how can we KNOW the corporations won't LIE?
Will you just post some naked pictured for your boyfriend already? It's kind of obvious that you have no idea what you're talking about so I am therefore forced to come to the conclusion that you're here for no other reason than to get Masnick's attention in the hopes that he'll ask you out on a date.
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SexiScience (profile), 11 Sep 2013 @ 11:15pm

Call it the "Colonel Klink" defense. "I know nothing! NOTH ING!!"
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Anonymouse, 11 Sep 2013 @ 11:26pm

Re: Re:
Hold on there, the US rebuilds the countries it has bombed, making those countries pay for the privilege of being bombed and also making them pay for the actual rebuilding. Also the US government then charges (loots) those countries for the privilege of having US enforcers in that country looking after US interests. That means the US Government is either the biggest terrorist organisation on the globe or alternatively the biggest crime family on the globe. Since there's enforcers on the ground the USG Crime family is probably the most appropriate description at this stage, albeit an extremely violent one at that.
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That One Guy (profile), 11 Sep 2013 @ 11:55pm

Re: Indefinitely Detained.
I believe Mordor's justice system is a little better actually, and it's certainly more honest.
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Anonymous Coward, 12 Sep 2013 @ 1:50am

Its largely unnecessary. Regardless of what the government likes to pretend, everyone knows when someone is asked and they respond "can't confirm or deny," that means YES.
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Anonymous Coward, 12 Sep 2013 @ 3:39am

Re:
You can vote for a third party. For instance, the USA pirate party.
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Anonymous Coward, 12 Sep 2013 @ 3:57am

Re: Re: Billy's right.
You seriously believe they will put the CEO of Google, Apple or Microsoft in jail for that? The consequence of doing that couldvery well be those companies moving out of the USA.

That would lead loss of the already faltering technological leadership of the USA, loss of many jobs, isolationism both on the Internet and physical, severely diminish the surveillance opportunities for the USA, effectively destroying the Total Informational Awareness program, estrange the USA from their European allies, and so on and so forth.

The by nature liberal tech/software industry has a very strong trump card: it could leave the USA.

I think, behind the screens, the USA government is desparate.
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Pragmatic, 12 Sep 2013 @ 5:31am

Re: Time to fight...
I'm right with you, Uriel-238.
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Pragmatic, 12 Sep 2013 @ 5:35am

Re: Re:
The trick, in a first-past-the-post system, is to get the numbers. People can't agree in large enough numbers on an alternative candidate to the ones we've got, so everyone ends up bitching about how democracy doesn't work. We need to be building consensus on alternatives, not sniping at each other in the comments.
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Pragmatic, 12 Sep 2013 @ 5:45am

Re: Re: Re: Re: Re: Billy's right.
I've outed her many times, but people often don't accept word use and behavior patterns as proof (that Wikipedia page I dug up was funny!). Not that it makes any difference.

We're dealing with a person who was terrified of Communism and the OS movement, and is now terrified of "The Rich" and government in general. She thinks Google and Microsoft are fronts for the NSA, but somehow manages to find room in her cold, black heart for corporate copyright, where corporations can shake you down for money that is allegedly for artists, even though those artists are usually stuck in "work for hire" agreements and don't even get paid any further revenues after receiving their initial payments.

What I'm saying is, she's a mixed-up nut who can't even get her political ideology straight, so she takes out her frustrations on us and can't be taken seriously.

Don't feed the troll.
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Anonymous Coward, 12 Sep 2013 @ 5:48am

Re:
That was Schultz that said that.
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jupiterkansas (profile), 12 Sep 2013 @ 9:54am

Re: Re: Re:
You're not a terrorist or criminal if you're the person that gets to define what a terrorist or criminal is. That's why everything the United States does is perfectly legit.
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