Reminder: When Ron Wyden Says There's A Secret Interpretation Of A Law, Everyone Should Pay Attention

from the how-many-times-do-we-need-to-do-this dept

Wed, Jul 29th 2015 9:32am — Mike Masnick

Years before Ed Snowden revealed how the NSA and DOJ had reinterpreted the PATRIOT Act and the FISA Amendments Act to allow the intelligence community to spy on Americans, Senator Ron Wyden tried to warn the public that this had happened:

We're getting to a gap between what the public thinks the law says and what the American government secretly thinks the law says.

For a couple of years after he said that, privacy and civil liberties advocates were forced into something of a guessing game to figure out what that secret law actually said. Eventually, the details were spilled by Ed Snowden who is, of course, now being threatened with a lifetime in prison for blowing the whistle.

This is not the only time that Wyden has made these kinds of warnings, and he's doing it again right now -- this time over CISA, the faux-"cybersecurity" bill that Wyden has made clear is really about surveillance. Recently released papers from the Snowden archives have made it clear why he's saying this, because it showed that, contrary to what's been said in the past, the NSA is using "cyber signatures" to sniff through upstream collections (their taps into the fiber backbone) under Section 702 of the FISA Amendments Act. And this opens up the information collected to so-called "back door" or "incidental" searches by the NSA. The whole point of CISA is to actually encourage companies to give the government more such "cyber signatures" which they can use to monitor the internet.

However, there's likely more going on as well, and in particular, Senator Wyden has been strongly hinting about an important Justice Department memo that remains classified, but which he implies would change the debate.

Wyden... claims that a classified Justice Department legal opinion written during the early years of the George W. Bush administration is pertinent to the upper chamber's consideration of cyberlegislation—a warning that reminds close observers of his allusions to the National Security Agency's surveillance powers years before they were exposed publicly by Edward Snowden.

[....] "I remain very concerned that a secret Justice Department opinion that is of clear relevance to this debate continues to be withheld from the public," Wyden said in his written dissent against CISA, which cleared the Senate Intelligence Committee 14-1 in March. "This opinion, which interprets common commercial service agreements, is inconsistent with the public's understanding of the law, and I believe it will be difficult for Congress to have a fully informed debate on cybersecurity legislation if it does not understand how these agreements have been interpreted by the Executive Branch."

Last year, based on some breadcrumbs that Wyden dropped during the confirmation hearings for Caroline Krass as the CIA's new top lawyer, Marcey Wheeler dug into some more details about this document, and notes that it comes from the same period of time when the Bush administration was twisting itself into knots to justify warrantless wiretapping and torture. In other words, this document seems ridiculously relevant to the debate.

And while it appears that the vote on CISA has likely been delayed yet again, it seems like this is a fairly important detail.

In short, haven't we, as a country, learned enough to note that, when Senator Wyden points out that there's a secret interpretation of the law that is at odds with a plain reading of it, we should all be demanding answers?

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Filed Under: cisa, cybersecurity, doj, information sharing, ron wyden, secret law, surveillance

23 Comments

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Anonymous Coward, 29 Jul 2015 @ 9:40am

But this is the intended design
The Holy Grail of Law for its wording is so that Citizens read it, and discern that the law says that curb stomping kittens (especially the cute ones) is DAMN ILLEGAL. But what it really means is that anyone whom has not curb stomped a kitten is actually guilty of high crimes and treason punishable by a complete removal of all rights and potentially their life sans trial by jury.

This is why the law is complex and useless to a civilized nation. The moment you decide that a lawyer has value in the course of a Nation Justice system is the moment you have admitted, by way of the front door, its own demise and corruption.
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Violynne (profile), 29 Jul 2015 @ 9:42am

Dear Senator Ron Wyden,

WILL YOU PLEASE RUN FOR PRESIDENT?

Sincerely,
The American People

PS: Kiss our ass, Dianne.
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Anonymous Coward, 29 Jul 2015 @ 9:42am

If Jennifer Hoelzer (former Wyden staffer) still lurks on Techdirt, please tell your former boss this:

Senator Wyden could redeem himself from selling out on Fast Track by reading this cyber memo into the Senate record. The reading over 'the public needs to know more about X' is getting stale.
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The Infamous Joe (profile), 29 Jul 2015 @ 9:55am

Out with it, Man.
The Speech or Debate Clause is a clause in the United States Constitution (Article I, Section 6, Clause 1). The clause states that members of both Houses of Congress
...shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

https://en.wikipedia.org/wiki/Speech_or_Debate_Clause
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Anonymous Coward, 29 Jul 2015 @ 10:03am

Demand more than answers
In short, haven't we, as a country, learned enough to note that, when Senator Wyden points out that there's a secret interpretation of the law that is at odds with a plain reading of it, we should all be demanding answers?
I'd rather demand that the people who wrote the secret interpretation be banned from government employment, the secret interpretation published in full with any annotations that still exist, any and all past actions taken pursuant to that secret interpretation be subject to full public judicial review, and that no future actions can be taken pursuant to that secret interpretation. Maybe salt the fields too, for good measure.
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Anonymous Coward, 29 Jul 2015 @ 10:04am

We already learned that the Bush administration's definition of torture was a long way from any sane person's definition of torture.
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Anonymous Coward, 29 Jul 2015 @ 10:11am

Mr. Wyden has indicated in the past that he could've just flat out told everyone what he knew and gotten away with it under some "privilege" he was entitled to. And yet, here he is again, playing the cock-tease. If Mr. Wyden truly loves America, he needs to shit or get off the pot.
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Anonymous Coward, 29 Jul 2015 @ 10:31am

The Scorpion and the Frog
One day, a scorpion looked around at the mountain where he lived and decided that he wanted a change. So he set out on a journey through the forests and hills. He climbed over rocks and under vines and kept going until he reached a river.
The river was wide and swift, and the scorpion stopped to reconsider the situation. He couldn't see any way across. So he ran upriver and then checked downriver, all the while thinking that he might have to turn back.

Suddenly, he saw a frog sitting in the rushes by the bank of the stream on the other side of the river. He decided to ask the frog for help getting across the stream.

"Hellooo Mr. Frog!" called the scorpion across the water, "Would you be so kind as to give me a ride on your back across the river?"

"Well now, Mr. Scorpion! How do I know that if I try to help you, you wont try to kill me?" asked the frog hesitantly.

"Because," the scorpion replied, "If I try to kill you, then I would die too, for you see I cannot swim!"

Now this seemed to make sense to the frog. But he asked. "What about when I get close to the bank? You could still try to kill me and get back to the shore!"

"This is true," agreed the scorpion, "But then I wouldn't be able to get to the other side of the river!"

"Alright then...how do I know you wont just wait till we get to the other side and THEN kill me?" said the frog.

"Ahh...," crooned the scorpion, "Because you see, once you've taken me to the other side of this river, I will be so grateful for your help, that it would hardly be fair to reward you with death, now would it?!"

So the frog agreed to take the scorpion across the river. He swam over to the bank and settled himself near the mud to pick up his passenger. The scorpion crawled onto the frog's back, his sharp claws prickling into the frog's soft hide, and the frog slid into the river. The muddy water swirled around them, but the frog stayed near the surface so the scorpion would not drown. He kicked strongly through the first half of the stream, his flippers paddling wildly against the current.

Halfway across the river, the frog suddenly felt a sharp sting in his back and, out of the corner of his eye, saw the scorpion remove his stinger from the frog's back. A deadening numbness began to creep into his limbs.

"You fool!" croaked the frog, "Now we shall both die! Why on earth did you do that?"

The scorpion shrugged, and did a little jig on the drownings frog's back.

"I could not help myself. It is my nature."

Then they both sank into the muddy waters of the swiftly flowing river.

Credit: http://allaboutfrogs.org/stories/scorpion.html
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Uriel-238 (profile), 29 Jul 2015 @ 10:34am

There's another lesson to be learned here, folks.
Our administrations are going to keep secretly interpreting the law whether to render laws they don't like inert, or to give themselves privileges that the people wouldn't approve of.

Secret interpretations didn't stop with Bush and they're not stopping with Obama, and wuthout some immediate reform to halt this crap immediately, it pretty much turns the United States into a polished totalitarian turd.

Maybe with some glitter.
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Anonymous Coward, 29 Jul 2015 @ 10:54am

So they aren't searching through our data
They are searching through the 3rd party data that all of us are forced to go through in order to have internet in the first place. Way to stress a technicality over the letter of the law and fully shift the legal foot onto oppressive regime control of information at all costs. At least this way those 3rd party companies make a little bit off the virtual government databases they are forced to maintain.
Stay Classy America
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Anonymous Coward, 29 Jul 2015 @ 12:24pm

What the law actually says...
This reminds me of the times I've been summoned for jury duty. 4 times I got into the courtroom (empaneled once) and every time the judge asked everybody if they could judge the case based on what the law actually said, not what everybody thought the law said.
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Ben (profile), 29 Jul 2015 @ 2:12pm

Relevant and Ridiculous
this document seems ridiculously relevant to the debate
True in many layers. The document/interpretation is likely as ridiculous as the "torture memo" and it most certainly is relevant to any discussion about cyber legislation. Sometimes I just have to wonder about lawyers -- when given a task to prove black equals white they tend not to say "are you nuts?" but "when do you need this?" (and it isn't even about the billable hours!)
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pixelation, 29 Jul 2015 @ 2:40pm

I'm still wondering why the executive branch are the ones interpreting the law...
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Zonker, 29 Jul 2015 @ 3:15pm

I've learned that whenever our government has a secret interpretation of the law, their secret interpretation is literally the exact opposite of what the plain language of the law states.
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Anonymous Coward, 29 Jul 2015 @ 7:36pm

I would guess that you can legally deploy some electronic means (WMD) in combat to collect information on an enemy as long as we are in line with geneva.

Once the subject is disarmed they are SUPPOSED to be released. If they leave a system armed and never intend to disarm it while innocent civillians are trapped being tortured they may strip themselves of all geneva protections for the rest of their existences as it would do nothing but torture the innocent if said system was misdeployed.

The USSR deployed it more than anyone else and there's a reason reagan called it the evil empire
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Uriel-238 (profile), 29 Jul 2015 @ 10:19pm

Re: What the law actually says...
Well when there's a common belief that says one thing and in reality the law says another, it should raise question about the validity of the law. Especially if there is a law proscribing x and the common belief is that x is legal, and a juror is being asked to convict someone of x.

Of course, right now, with prosecutory discretion and ridiculous levels of criminalization we just have a system where if someone important doesn't like you, you go to prison. For a long time.

Makes me think of the Espionage act and how the law (somehow) dictates that the defense cannot justify the act, or even discuss it with the jury. We have laws like that?

So yeah, when we talk about whistleblowers having their day in court or facing the consequences, it's not the same day in court one gets when (say) charged with murder.
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Anonymous Coward, 30 Jul 2015 @ 12:26am

Re: Demand more than answers
I would rather have them fired from a cannon, but the cannon would likely have a secret interpretation of the deifnition of the word 'fired.'
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Ninja (profile), 30 Jul 2015 @ 3:53am

Even if you disagree with Wyden's actions the fact that everything he told back then that people called bullshit actually happened and was confirmed by the Snowden leaks should suffice to at least go after evidence. Don't take him for granted, research, scrutinize.
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David, 30 Jul 2015 @ 8:45am

Re:
So they did achieve results by torturing definitions.
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tqk (profile), 30 Jul 2015 @ 9:12am

Re:
I'm still wondering why the executive branch are the ones interpreting the law.

Simple. So far, they've been allowed to.

In theory, there are checks and balances which force their illegalities out into the open so they can be stopped and possibly punished. Those checks and balances have been allowed to atrophy and are no longer performing their original desired function. Both Congress and the courts are choosing to collude with the administration, having decided that they're no longer beholden to citizen voters. They're beholden to something else; a not so hidden agenda.

That hidden agenda is so much in force that even a US senator is afraid to publicly call them on it. That should scare the hell out of everyone and anger them enough to fix this obvious brokenness, but so far that's not happened. We don't know whether we'll see that happen in our lifetimes, but if we care to see it happen someday, we just have to keep pushing back hoping they'll come to their senses before they find themselves hanging from meathooks in the town square.

I wonder what is the point of even having elected lawmakers writing laws when the administration can decide for itself what those laws actually say and mean and we're not allowed to know what those laws actually say and mean. You'd be better off simply demolishing the Capitol Building and saving the money. You may as well suspend elections too, and there'll be no need for an FEC either.

All those politicians about to spend trillions on a presidential election next year can instead just go find a sunny beach and drown themselves in pina coladas instead of wasting everyone's time and money seeming to govern.
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Almost Anonymous (profile), 30 Jul 2015 @ 1:43pm

Let's be clear
Eventually, the details were spilled by Ed Snowden who is, of course, now being threatened with death for blowing the whistle.

FTFY.
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tqk (profile), 30 Jul 2015 @ 2:46pm

Re: Let's be clear

Eventually, the details were spilled by Ed Snowden who is, of course, now being threatened with death for blowing the whistle.

FTFY.

From what I've read, Snowden's just happy that the only ones who're making this all about him are the LEOs/"Authoritays." He's happy that pretty much everyone else is focusing on the crap he blew the whistle on, which was always his intention. I think it's really cool how he's all over the world via Internet video, including a standing ovation at an IETF hackathon. Rock on, Ed! :-)
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Concernedcitizen, 21 Dec 2015 @ 5:03am

Re:
This guy wants to still have his cake. His paymasters will still fund him as long as he doesn't name names. He can spout off without detail all day long without suffering consequences. Seems like a "man" who can't decide if he wants to be part of the system or stand for liberty. So far he's chosen sides with the system. Perhaps he knows the other way, given the status quote, is a loser. He might also like to avoid ending up in an assassination list (aka, tragic accident in a small plane.)
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