DOJ Refuses To Let Tech Companies See Legal Arguments It's Making Against Them
from the isn't-that-convenient dept
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
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.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?
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.
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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
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Wait...
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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Re: Wait...
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Re: Wait...
You say I lost the case? Prove it.
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Secret laws, redacted pleadings
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Re: Secret laws, redacted pleadings
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Re: Re: Secret laws, redacted pleadings
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Re: Secret laws, redacted pleadings
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Re: Re: Secret laws, redacted pleadings
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Response to: Anonymous Coward on Nov 13th, 2013 @ 7:48am
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Pigs Fly!!!!!
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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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Re:
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Re: Re:
Or maybe there has been but it's a secret.
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Due process?
That's a secret.
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Re: Due process?
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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But again, it's ONLY PR to publish some meaningless numbers.
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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Re: But again, it's ONLY PR to publish some meaningless numbers.
1D:10:T(PEN-15)
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Just having fun
Imagine the smug grins and giggling when they pull off these stunts, over and over again.
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If only private citizens could redact things
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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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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I still like.....
Whatever happened to common sense?
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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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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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Ohhhhh
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Done with 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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Aladeen would be proud.
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Re:
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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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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Nothing new here
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Re: Nothing new here
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Pull Their Software Licenses!
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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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"The United States Govemment firmly supports a policy of appropriate transparency with respect to its intelligence activities.
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Re:
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WTF
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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Reminds me of Anton Vickerman trial
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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fantastic
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