DOJ Refuses To Let Tech Companies See Legal Arguments It's Making Against Them

from the isn't-that-convenient dept

Wed, Nov 13th 2013 7:31am — Mike Masnick

The ongoing legal fight, in which a bunch of US tech and internet companies -- namely Google, Facebook, Microsoft, Yahoo and LinkedIn -- are suing the US government, claiming a First Amendment right to publish some details on the number of requests they get from the NSA under Section 702 of the FISA Amendments Act, as well as the number of users impacted by those requests, is getting ever weirder. The government had filed its response back at the end of September. And, you might notice, large portions of it are totally redacted. For example, here is page 13 of the document (though, numbered page 8):

At least they didn't redact the page number Of course, stuff gets filed under seal all the time, and it's not particularly uncommon to see redacted passages in legal documents -- especially (obviously) when it has to do with matters of national security. But, here's what's different. Normally the opposing parties in the case are allowed to see the details of what's redacted. Here, the DOJ is simply refusing to let the tech companies see its own argument. In response, the companies have filed a pretty direct and somewhat angry motion, asking the FISA court to either let them see the arguments, or to strike the redacted portions from the DOJ's motion. Basically, the DOJ is saying that it can make legal arguments that only the court can see, but which the tech companies suing it cannot see. That goes against every basic concept of due process.

The government has submitted a response and supporting declaration for ex parte, in camera review. It has given the providers only a heavily redacted version of its submissions, and it has rejected all requests for greater access.

Unless the government reconsiders its refusal to accommodate the providers' legitimate need to understand the basis for the government's response, the providers respectfully request that this Court strike the redacted portions of the government's brief and supporting declaration. The redacted version of the government's submissions does not comply with Foreign Intelligence Surveillance Court Rule 7(j) because it does not "clearly articulate the government's legal arguments," as the rule requires. If the government's interpretation of the rule were correct, the rule would violate both the First Amendment and the Due Process Clause. To avoid that result, the Court should construe the rule to require fuller disclosure to the providers.

Allowing the government to file an ex parte brief in this case will cripple the providers' ability to reply to the government's arguments and is likely to result in a disposition of the providers' First Amendment claims based on information that the providers will never see. The providers do not dispute that in some cases it may be appropriate for this Court to consider ex parte filings. In this case, however, such a course is neither justified nor constitutional. The providers already know the core information that the government seeks to protect in this litigation--the number of FISC orders or FAA directives to which they have been subject, if any. At issue here is only the secondary question whether the providers may be told the reason why the government seeks to keep that information a secret. The government has not argued that sharing those reasons with the providers or their counsel would endanger national security. Accordingly, unless the government allows the providers' counsel to access its response, the Court should strike the redacted portions of the response.

The whole thing is really quite incredible. Our government is so focused on the secrecy of its secret laws and secret demands that it won't even tell the companies fighting the secrecy the secret reasons it's telling the court it has to keep stuff secret? How is that possibly consistent with basic due process under the law?

Motion Declaratory Judgement 131002 (PDF)Motion Declaratory Judgement 131002 (Text)

Misc 13 03 04 05 06 07 131112 (PDF)Misc 13 03 04 05 06 07 131112 (Text)

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Filed Under: due process, faa, fisa, fisa amendments act, fisa court, fisc, free speech, gag order, nsa, redactions, section 702
Companies: facebook, google, linkedin, microsoft, yahoo

48 Comments

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That One Guy (profile), 13 Nov 2013 @ 5:49am

Wait...
This case is being judged by the 'I am not a crook/rubber-stamp' FISA 'court'? The companies filing suit are probably not only going to be told that the government is doing nothing wrong by filing their case almost entirely under seal, the 'judges' will likely try and berate them for 'putting national security at risk by attempting to publicize information regarding classified orders', or something equally insane.

The odds of the FISA 'court' ruling against the government is about as low as it's reputation as an independent, impartial court.
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Tom Stone, 13 Nov 2013 @ 7:44am

Secret laws, redacted pleadings
Simply let the Tech companies lawyers read the read the redacted pleading, then kill them.
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Anonymous Coward, 13 Nov 2013 @ 7:48am

it seems, however, to be in keeping with an authoritarian government or perhaps even a Fascist government, or how about a totalitarian government? it seems not, however, to be in keeping with a democratic government, one that supposedly is centered on freedom! that seems to be furthest from it's mind! i still reckon there is someone pulling strings here that has taken their position as being above everyone and everything, including the President and the Constitution! whoever that is, is obviously known, so why is the person, even the name of the person being kept from everyone?
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Anonymous Coward, 13 Nov 2013 @ 7:49am

Re: Secret laws, redacted pleadings
That's a real possibility....
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Anonymous Coward, 13 Nov 2013 @ 7:49am

If this is the rule of law, I am a flying farting jet propulsion powered pig.
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Anonymous Coward, 13 Nov 2013 @ 7:50am

The tech companies should

A: Refuse to let the DOJ see their legal defense.

B: Accuse the DOJ of conspiracy and refuse to let them see the legal arguments against them.

That way the court can declare it's a wash and no one gets punished without telling anyone how it came to its decision.
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Anonymous Coward, 13 Nov 2013 @ 7:55am

Response to: Anonymous Coward on Nov 13th, 2013 @ 7:48am
It's called congress... They have always been in charge. Who are we at war with again? Who is covered under the AUMF? How much of this falls under war powers? Why can't the american people know who we are at war with?
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Accused, 13 Nov 2013 @ 7:56am

Re: Wait...
Your honor, in my defense [redacted]. and another defense I have is [redacted]. While I can't reveal my defense to you because [redacted] I can assure you that we are not guilty of [redacted].
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Anonymous Coward, 13 Nov 2013 @ 8:03am

Re: Re: Wait...
(if the defendant does this you must admit that both sides will have equally compelling arguments and so it should just be a wash).
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Anonymous Coward, 13 Nov 2013 @ 8:04am

They should seriously think about investing in a Redactatron 3000 because it would save them a ton of money.
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Oblate (profile), 13 Nov 2013 @ 8:09am

Due process?
� How is that possibly consistent with basic due process under the law?

That's a secret.
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out_of_the_blue, 13 Nov 2013 @ 8:09am

But again, it's ONLY PR to publish some meaningless numbers.
That you'll have no way to verify, NOR will those numbers include the number or amount of non-FISA data supplied.

It's just PR, and this topic a standard on Techdirt.

Meanwhile, those mega-corporations are actually worse snoops than NSA!
Edward Snowden: Google, Facebook, Microsoft, Yahoo, Apple, and the rest of our internet titans must ask themselves why they aren't fighting for our interests the same way -- Ed, those soul-less amoral entities care only about the billions they get BEING snoops!

04:09:07[f-82-7]
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Ragnarredbeard, 13 Nov 2013 @ 8:11am

Re: Secret laws, redacted pleadings
This has a certain elegance to it. Moves along a legal case and gets rid of some number of lawyers at the same time.
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Frankly, 13 Nov 2013 @ 8:16am

Just having fun
They're laughing at everyone.

Imagine the smug grins and giggling when they pull off these stunts, over and over again.
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Anonymous Coward, 13 Nov 2013 @ 8:22am

Re: Re: Secret laws, redacted pleadings
Well, we have killer robots, so...
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Anonymous Coward, 13 Nov 2013 @ 8:28am

If only private citizens could redact things
If only private citizens could redact things... then I could have some fun 'looting', err, legitimately suing, other people.

Me: You owe me $100,000, I'm suing you for that money.
Them: Ok, what do I owe you $100,000 for.
Me: You know, security related things, see my court filings.
Them: But those are all pages of redacted text, all that's not redacted is the page number and the header "you owe me $100,000" on the first page.
Me: Those need to be kept secret, for you know, security reasons, the security of my sources of income.
Them: Judge I'd like those briefings to be unredacted, or the redacted parts struck down entirely so that I can properly defend myself.
Judge: No way, he's right, there's a legitimate security concern at stake here, if you or others knew what were in those filings there would be serious real world security consequences.

*After the trial, and a $100,000 cash payment*

Me: Here's your $25,000 cut of the verdict.
Judge: Excellent, and I'll be sure to rule your next 10 filings also must be kept secret for our income security.
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Anonymous Coward, 13 Nov 2013 @ 8:33am

I have seen the original documents, the read as follows.

Because we said so ... neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener neener
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Crusty the Ex-Clown, 13 Nov 2013 @ 8:33am

I still like.....
..... the statement originally stated by Supreme Court Justice Stephen Breyer that "If a law isn't public, it isn't a law,"

Whatever happened to common sense?
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Anonymous Coward, 13 Nov 2013 @ 8:49am

It appears nothing has changed, and the USA is still a country of secret courts, with secret laws.

Nobody can challenge the secret laws, because nobody can prove the secret laws exist, and therefore everybody lacks standing to challenge our secret government.
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Anonymous Coward, 13 Nov 2013 @ 8:55am

Re: Re: Secret laws, redacted pleadings
Sadly, it's removing the lawyers who actually are representing constitutional rights.
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Anonymous Coward, 13 Nov 2013 @ 9:07am

Perhaps the tech companies should redact their arguments against the government. Make them break the law to get the information, then sue the everloving shit out of them.
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Anonymous Coward, 13 Nov 2013 @ 9:07am

Secret laws from secret courts that are expected to be kept secret yet the citizen and company are beholden to obey the law. Yet ignorance is no excuse for breaking the law eh?

It just keeps getting stranger and more far fetched the longer all these government agencies keep trying to come up with reasons why the public shouldn't know what they've been up to.
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Anonymous Coward, 13 Nov 2013 @ 9:17am

But we're not an out of control police state, you see, because we can still listen to rock and roll music.
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Rapnel (profile), 13 Nov 2013 @ 9:23am

Ohhhhh
The Department of Just Us. I get it now.
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McCrea (profile), 13 Nov 2013 @ 9:23am

Done with due process
"Basically, the DOJ is saying that it can make legal arguments that only the court can see, but which the tech companies suing it cannot see. That goes against every basic concept of due process."

Well, that just goes hand in hand with one of their reasons for blanket surveillance, that due process takes too long.
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Anonymous Coward, 13 Nov 2013 @ 9:38am

Ah, 'murikah. Land of the human rights violation, the "do what we say not what we do", and of the "what is due process exactly?".

Aladeen would be proud.
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Anonymous Coward, 13 Nov 2013 @ 9:39am

Re:
Why are you guys so anti-dictatorship? Imagine if America was a dicatatorship! You could let 1% of the people have all the nation’s wealth. You could help your rich friends get richer by cutting their taxes and bailing them out when they gamble and lose.

You could ignore the needs of the poor for health-care and education. Your media would appear free; but would secretly be controlled by one person and his family. You could wire-tape phones. You could torture foreign prisoners. You could have rigged elections.

You could lie about why you go to war. You could fill your prisons with one particular racial group and no one would complain. You could use the media to scare the people into supporting policies that are against their interests.

I know this is hard for you Americans to imagine, but please: try!
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CTVic, 13 Nov 2013 @ 9:55am

In a follow up statement, NSA officials apologize for issuing such a heavily redacted document: "We didn't realize that our highlighter was actually a black marker."
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Anonymous Coward, 13 Nov 2013 @ 9:57am

Leaders of the free world, providing liberty and justice for all. What truly scares me that other countries, including my own, look towards the US as a beacon of light and civilisation.

Am I alone in wishing that the shutdown had continued to the point of the US defaulting on their loans? Personally, I think the world would be better off if the US economy collapses once and for all and gets us all out from under the financial and political control of the US.
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Jim Tyre, 13 Nov 2013 @ 10:42am

Nothing new here
"This man, who seems to have led a life of unrelieved insignificance, must have been astonished to find himself suddenly putting the Government of the United States in such fear that it was afraid to tell him why it was afraid of him." Shaughnessy v. United States ex rel. Mezei, 345 US 206, 220 (Jackson, J., Dissenting).
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Jim Tyre, 13 Nov 2013 @ 10:45am

Re: Nothing new here
Neglected to include the year of that Supreme Court decision. 1953.
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Coach George (profile), 13 Nov 2013 @ 10:51am

Pigs Fly!!!!!
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Coach George (profile), 13 Nov 2013 @ 10:56am

Pull Their Software Licenses!
Microsoft and Google should suspend what ever licenses the DOJ is using, immediately and keep them suspended until open access to the court documents are made available!
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out_of_the_blue, 13 Nov 2013 @ 11:12am

Re: But again, it's ONLY PR to publish some meaningless numbers.
Very topical

1D:10:T(PEN-15)
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ambrellite (profile), 13 Nov 2013 @ 11:16am

Re:
I don't think there's a precedent in history (or sanity, for that matter) for a court to make a secret ruling based on the secret legal arguments of the defense and the plaintiff. But I wouldn't be surprised to see it, revealed ex post facto, in the FISA court.
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Arsik Vek (profile), 13 Nov 2013 @ 11:54am

I'm picturing the discussion going something like this:

Judge: Tech industry, the government has said some terrible things about you. How do you respond?
Tech Lawyers: Well, what did they say?
Judge: Terrrrrrible things. Things I can't even bring myself to repeat.
Tech Lawyers: Well, how are we supposed to respond if we don't know what we're responding to?
Judge: Terrrrrrrrrrrrrrrrrible things.
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Anonymous Coward, 13 Nov 2013 @ 3:14pm

Re: Re:
"I don't think there's a precedent "

Or maybe there has been but it's a secret.
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Wes, 13 Nov 2013 @ 3:56pm

I love the first sentence of the introduction:
"The United States Govemment firmly supports a policy of appropriate transparency with respect to its intelligence activities.
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That One Guy (profile), 13 Nov 2013 @ 4:33pm

Re:
Usually you're not supposed to start your legal filing with a joke, maybe they're hoping the judge has a sense of humor?
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Trevor, 13 Nov 2013 @ 4:45pm

WTF
Did they really redact the footer title of the document?

Also: Page 12, middle paragraph: "If these leading Internet companies are permitted to make these disclosures, the
harms to national security would be compounded by the fact that other companies would surely seek to make similar disclosures..."

so, If we let these internet companies exercise their First Amendment rights, OTHER companies would want to exercise THEIR First Amendment rights, too? SACRILEGE!
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That One Guy (profile), 13 Nov 2013 @ 7:09pm

Re: Re: Re: Wait...
Which would be bad, as the case going away like that would be exactly what the government wants, allowing it to continue on, business as usual.
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Anonymous Coward, 13 Nov 2013 @ 7:14pm

Reminds me of Anton Vickerman trial
"the DOJ is saying that it can make legal arguments that only the court can see, but which the tech companies suing it cannot see. That goes against every basic concept of due process. "

Anton Vickerman ran a TV Links site to torrents site. The trial included a portion of 'secret' evidence using a rule designed for gangland bosses and terrorists. Where the testimony is to the judge and the defense never gets to hear it or challenge it. Seriously, the judge permitted this in a copyright case!

I've always suspected that this was GCHQ spooks testifying on surveillance data of Vickerman. Because one of the claims was that Vickerman was in collusion with Chinese pirates.
I suspect they wanted it secret on the "terrorists will find out we're spying on Brits" rule.

I think at this point, that case needs to be reviewed and the testimony revealed. We know GCHQ is spying on Brit comms now, so its not a secret.

If it was GCHQ (or NSA) involved, then that would mean MPAA has intelligence agency links.

http://pastebin.com/WAUm4dbi

As you pointed out, New Zealand's argument against DotCom it looks like the spooks are involved in copyright cases now.

https://www.techdirt.com/articles/20130823/09375924294/did-new-zealand-spooks-tap-into-prism-to- spy-dotcom.shtml
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Anonymous Coward, 13 Nov 2013 @ 7:18pm

Re: Due process?
[i]How is that possibly consistent with basic due process under the law?[/i]

It's very consistent if [redacted] and [redacted] under [redacted] and [redacted]. If you knew this, you wouldn't need to ask that question.
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Bergman (profile), 14 Nov 2013 @ 1:07am

Re: Wait...
My response, were I on the receiving end of a court ruling with everything so secret/redacted that I can't read any of it:

You say I lost the case? Prove it.
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Anonymous Coward, 14 Nov 2013 @ 7:36am

So much for "democracy".
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Matthew Cline (profile), 14 Nov 2013 @ 8:48am

At least they didn't redact the page number
That's because the page number isn't a memetic hazard.
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Anonymous Coward, 14 Nov 2013 @ 7:48pm

I think it's safe to say 1984 has arrived with the department of injustice running around.
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Kasie Vinyard, 6 Jan 2016 @ 7:07am

fantastic
Great Article. blog post , I was enlightened by the insight ! Does someone know where I can grab a template CA FL-684 copy to fill in ?
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