Feds To FISC: Of Course We Don't Have To Share Our Full Legal Filings With Companies Suing Us Over NSA Transparency

from the because dept

Tue, Dec 10th 2013 5:43am — Mike Masnick

As you may recall, in the ongoing lawsuit by various tech companies against the government, in which they're seeking to reveal some rather basic details about how many surveillance data requests they get and how many users are impacted, much of the feds' brief was redacted... even to the tech companies. The companies argued, quite reasonably, that it was crazy to make them fight a legal battle in which the DOJ could make arguments that the companies themselves couldn't see or respond to. They asked the FISA Court to either let them see the arguments or to remove them from the case.

The DOJ has now filed its response, which basically says "we've revealed enough."

The Government's public brief meets and exceeds the requirements of Rule 7(j). The rule clearly provides that submissions to the Court "which may include classified information" will be reviewed by the Court "ex parte and in camera" and that adversarial parties will receive only "an unclassified or redacted version" which "clearly articulate[s] the government's legal arguments." Rule of Procedure 7(j). Not only does the Government's public brief "clearly articulate the government's legal arguments," the legal arguments are fully disclosed. The redacted information contains no additional legal arguments, no case citations, and no discussion of statutory or other law.

Of course, that raises other questions. If the redacted portions (which are fairly large) don't raise legal arguments, then what are they doing?

The government also argues that the executive branch gets the right to determine what to redact and the court should defer to the government on such things:

... this Court does not independently review Executive Branch classification decisions.... Executive Branch classification decisions are entitled to "the utmost deference"... and that such deference is especially appropriate where the Executive Branch bases its classification decision, as here, on a review of all pertinent information, including whether disclosure of the data in the manner proposed by the companies would risk filling out the mosaic of information available to our adversaries in their efforts to assess and avoid our surveillance capabilities.

And so we're back to the "mosaic theory," in which the feds argue they can redact stuff out of a fear that a bunch of random info can be put together by bad people to figure out more than the feds want to reveal. But... that makes no sense here. The companies are asking at this point that their own lawyers be able to see the arguments, not necessarily that the details be made public. The court could easily seal the filings from the public while letting the companies' lawyers see it.

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Filed Under: doj, first amendment, fisa, fisc, redacted, transparency
Companies: apple, facebook, google, linkedin, microsoft, yahoo

28 Comments

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Rikuo (profile), 10 Dec 2013 @ 1:20am

So it's now official. It's now in black and white text, laid out for everyone to see, so there's no ambiguity about it.

The Executive Branch of the US government is now saying they are not subject at all to orders from the courts.
So what happens now? I remember the DOJ ignoring Court orders People from the Executive branch are basically giving the courts the finger. Will the courts order the arrest of these individuals? Who will arrest them? Last I heard, police fall under the executive branch...
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- Ninja (profile), 10 Dec 2013 @ 5:37am
  
  Re:
  Classic case of who judges the judge applied to the cops. It's the same issue with all branches. The Legislative legislates for their own interests, the Judiciary delivers verdicts that are aligned with their interests and the Executive enforces the "laws" that suits it.
  
  The 3-branch system is no match for human corruption and corporate power it seems.
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  - Anonymous Coward, 10 Dec 2013 @ 6:40am
    
    Re: Re:
    The Executive refusing to follow the lawful orders of the Judiciary is a coup d'etat, without any sort of qualifications, because the Constitution is the State, above all persons, and I think we should be using the correct language as such.
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    - Anonymous Coward, 10 Dec 2013 @ 7:12am
      
      Re: Re: Re:
      Secret rulings on their own constitutes such a serious problem of collution from the 3 powers, that the concept is completely unacceptable on a theoretical level in countries aspiring for any kind of rechtsstaat.
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    - Ninja (profile), 10 Dec 2013 @ 7:36am
      
      Re: Re: Re:
      If you think about it it's a coup d'etat to some degree. I don't think such things happen overnight. It's a series of events that erode the basic structures of the system that end up leading to the coup itself or to a situation where there's no "official" coup but the Government functions as if it happened. How far in this the US Govt (and other countries for that matter) has gone is up for debate.
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Anonymous Coward, 10 Dec 2013 @ 6:14am

The rule of law requires that the law is clear and transparent. This is nearer arbitrary rule and as a result companies do not know what is allowed, and so end up letting government agencies far more access to their business and data then the law allows..
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- That One Guy (profile), 10 Dec 2013 @ 6:30am
  
  You say 'unintended consequences', they say 'working as designed'.
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That One Guy (profile), 10 Dec 2013 @ 6:40am

First shoe drops, now to wait for the second...
While the filing by the government is hardly surprising, given they seem to have studied under the Carreon school of pseudo-law: 'When caught on your BS, double down!' what will be important is to see just how the court rules on this.

By the government's own argument, 'The redacted information contains no additional legal arguments, no case citations, and no discussion of statutory or other law.', there's no legally important information in the redacted sections, so removing, or ordering the removal of, those sections would seem to have no significant effect on their case at all(unless of course they do in fact contain information relevant to the case, in which case both sides deserve to have access to it).
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Anonymous Coward, 10 Dec 2013 @ 7:10am

"Adversaries" this isn't about adversaries ..this is about Americans ,World Citizens and privacy data theft by rogue and self empowered corporate driven governments ..and the courts are writing it off
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Jerrymiah, 10 Dec 2013 @ 7:18am

re....
Here's another case where Eric 'the Nazi' creates his own laws.
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out_of_the_blue, 10 Dec 2013 @ 7:19am

"...the ongoing [PUBLIC RELATIONS PLOY] by various tech companies..."
"...against the government, in which they're seeking [ONLY] to reveal some rather [USELESS] basic details about how many surveillance data requests they get and how many users are impacted," and which is NOT in any degree VERIFIABLE, nor includes routine operations -- the "direct access" to servers that Snowden states.

Fixed that for ya.

This is just more of Mike flakking for mega-corporations, helping pretend that the lawsuit will in any way improve matter, ignoring that those mega-corporations are the the biggest spies from which get billions in advertising and other revenue, and making it appear that we need only worry about the gov't, not the co-conspirator corporations.
Spying is the main 'business model' of the internet, especially for Google and Facebook.

03:18:59[d-325-5]
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- out_of_the_blue, 10 Dec 2013 @ 11:18am
  
  Re: "...the ongoing [PUBLIC RELATIONS PLOY] by various tech companies..."
  I meant I'm a douchebag
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- out_of_the_blue, 10 Dec 2013 @ 11:19am
  
  Re: "...the ongoing [PUBLIC RELATIONS PLOY] by various tech companies..."
  I meant I'm sweetness and light
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  - out_of_the_blue, 10 Dec 2013 @ 11:20am
    
    Re: Re: "...the ongoing [PUBLIC RELATIONS PLOY] by various tech companies..."
    y u hold my comment for moderation?
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Anonymous Coward, 10 Dec 2013 @ 7:37am

Being fair...
Ok then if the government can redact the data that would "would risk filling out the mosaic of information" companies should be able to start redacting metadata from business records that would do the same to protect their customers privacy.
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Anonymous Coward, 10 Dec 2013 @ 7:49am

this is a farce these companies are protecting their public interests not their users with all the resources they have they could lock the web down innovate create a safe haven for users .. but instead they look for exploits to obtain our data which should be considered private personal documentation .. we should never have to opt out .. we should instead be asked and rewarded to opt in
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- Anonymous Coward, 10 Dec 2013 @ 7:33pm
  
  Re:
  I agree, and you should have to pay every time you use one of Googles services.
  
  Everytime you log onto the internet, you should send Tim Berners Lee a cheque.
  
  Everytime you comment on this site, you should be sending Mike some cash.
  
  Oh, what is that, you want everything for free?
  
  You are aware that you do not have to use Google's or Facebook's services right?
  
  If they scare you that much, I would just turn the PC off and go back to watching broadcast tv.
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  - John Fenderson (profile), 12 Dec 2013 @ 9:56am
    
    Re: Re:
    I agree with the AC's point that privacy invasion should be opt-in rather than opt-out. And right now, it's largely opt-out. Even avoiding Google requires taking action beyond simply not using their services.
    
    you should have to pay every time you use one of Googles services.
    
    If I could pay cash to get Google's services instead of having them mine my data, I would actually use their services.
    
    Everytime you log onto the internet, you should send Tim Berners Lee a cheque
    
    Why? He isn't responsible for the internet. He just invented the web protocols. Regardless, I do, in fact, pay for using the internet. Monthly.
    
    Everytime you comment on this site, you should be sending Mike some cash.
    
    Actually, I do pay Techdirt money every month.
    
    The issue isn't about free vs non-free: sadly, most of the web isn't free nowadays. The only issue is what currency you're using to pay for it with: money or privacy. It would be nice if we at least had that choice.
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Anonymous Coward, 10 Dec 2013 @ 8:03am

Of course, that raises other questions. If the redacted portions (which are fairly large) don't raise legal arguments, then what are they doing?

Probably presenting evidence. It's not a legal argument in itself, but they're presenting it to support their legal argument.

If this were a patent case it would be like publicly citing the law about prior works, and then filing under seal some actual evidence that prior works did or did not exist.
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- Anonymous Coward, 10 Dec 2013 @ 8:11am
  
  Re:
  But opposing counsel has the right to challenge the validity of any evidence presented. At the end of the day, despite what the DOJ claims, the filings can only remain redacted if the court allows them to remain that way. The judge controls what happens in his court, not the DOJ.
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Trevor, 10 Dec 2013 @ 9:23am

Welp
It's amazing how the government's left hand can argue that random "metadata" is not a violation of privacy and cannot reveal anything substantial about the person whose information was collected, while at the same time the government's right hand argues that it cannot release some information because of the "mosaic" effect, where adversaries can piece together a larger understanding of their actions based on seemingly random pieces of information.

wut.
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- Slap, 10 Dec 2013 @ 10:06am
  
  Re: Welp
  Yep. Eric Holder is a lawless, lying, hypocritical turd of an individual.
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Wally (profile), 10 Dec 2013 @ 11:46am

Hitler
If anyone wants to know why some Republicans are comparing Obama to running this country like a Communist? Look no further than how the USSR handled its science division with military rank...and compare it to how various law enforcement agencies are clamoring to keep their methods classified...
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- beltorak (profile), 10 Dec 2013 @ 1:32pm
  
  Re: Hitler
  as if the republicans would have been any better. remember these programs were started under bush. remember that mccain wasn't upset about the nsa revelations until it came out that they were spying on the private artifices of the elite class - that is, other heads of state.
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  - Wally (profile), 11 Dec 2013 @ 12:57am
    
    Re: Re: Hitler
    But Bush was never directly involved with Section 215's involvement.
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    - Pragmatic, 11 Dec 2013 @ 3:28am
      
      Re: Re: Re: Hitler
      Who cares about splitting hairs?
      
      The corruption we're experiencing now began under Reagan. It's not and never was a partisan thing. Clinging to outdated political notions of us V them isn't going to make this better so give it up.
      
      They're all complicit; there are few, if any "good guys" among them.
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unusedApples, 10 Dec 2013 @ 12:09pm

the mosaic of information available to our adversaries ..
and
But... that makes no sense here. The companies are asking at this point that their own lawyers be able to see the arguments, not necessarily that the details be made public.

It all makes complete sense for certain values of 'adversaries'.

I thought we all understood that by now.
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TiagoTiago (profile), 28 Jan 2014 @ 5:14am

Would anyone be surprised if it turns out the redacted parts contain information being used to blackmail the judge?
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