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Judge In FBI Case Was Forced To Redact His Mocking Of FBI's Ridiculous Arguments

from the now-revealed dept

Tue, Dec 1st 2015 10:36am — Mike Masnick

We've already discussed how Nicholas Merrill can finally reveal the ridiculous and almost certainly unconstitutional National Security Letter (NSL) he received 11 years ago while operating a small ISP, Calyx Internet Access. However, with that revelation also came the unredacted version of the judge's ruling back in October. When we wrote about the October ruling we had mocked many of the obviously ridiculous redactions -- including this somewhat iconic redacted footnote:

Thanks to the unredacted decision's release, we can now see what exactly was redacted and it was mostly judge Victor Marrero totally mocking the DOJ's ridiculous arguments. Here's that footnote, by the way:

If you can't read it, it says:

The Court notes that the Leahy Letter does not reveal the "180 day" time period in which the FBI sought order and shipping information from Merrill. The Perdue Declaration argues that if this 180-day period is revealed, then "potential terrorists" could manipulate orders to avoid having those orders fall within the 180 day period.... The Court is not persuaded. A "potential terrorist" does not know when, if ever, the FBI will issue a related NSL. The 180-day period clearly relates to the date Merill received the NSL, and it is hard to imagine any person outside of the FBI having the knowledge about when an NSL might be issued, and changing their behavior as a result.

Many of the other redactions just involve hiding what kind of information is currently being redacted, even as the judge wondered why such information was being redacted. For example, we originally highlighted this section:

And in the unredacted portion, we see that basically the government insisted on redacting the fact that the NSL asked for "subscriber day/evening telephone numbers" and the judge can't figure out why the FBI thinks this needs to be secret.

Elsewhere, the redactions get even more direct in hiding the judge totally mocking the DOJ's arguments. Take this section for example:

We now see it was the judge mocking the ridiculousness of these redactions:

If you can't see that, it's the judge pointing out the ridiculousness of the FBI already allowing the public to know it can collect records of an "address" and a "telephone number" but not "addresses" and "telephone numbers" (i.e., the plural versions). As the judge noted, but was originally redacted:

... a potential target of an investigation, even a dim-witted one, would almost certainly be able to determine, simply by running through the alphabet, that "telephone number█" could only be "telephone numbers." Redactions that defy common sense -- such as concealing a single letter at the end of a word -- diminish the force of the Government's claim to "good reason" to keep information under seal, and undermine its argument that disclosures of the currently-redacted information in the Attachment can be linked to a substantial risk of an enumerated harm.

The judge also mocks the ridiculous fact that because the FBI is no longer using NSLs to obtain cell-tower location info, that because it might at some point in the future use it, such info should be redacted:

Here's the unredacted version:

Later in the document, the judge was even forced to redact the phrase "sophisticated foreign adversaries" in noting that such people would already know that the FBI could collect such information.

It was pretty clear back in October the redactions were ridiculous (as was the whole gag order in the first place), and now it's been confirmed.

08 28 2015 REDACTED Decision and Order (PDF)08 28 2015 REDACTED Decision and Order (Text)

Merrill v Lynch Unredacted Decision Vacating Gag Order (PDF)Merrill v Lynch Unredacted Decision Vacating Gag Order (Text)

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Filed Under: fbi, national security letter, nicholas merrill, nsl, redactions, surveillance
Companies: calyx internet access

23 Comments

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Anonymous Coward, 1 Dec 2015 @ 10:50am

RADIUS
On p.26 of the unredacted opinion, Judge Marrero makes a parenthetical statement about a “radius log”:
(i.e., "radius log" information, cell-tower based phone tracking information)
This parenthetical comment has actually attracted a small bit of attention elsewhere, with some commenters taking Judge Marrero's explanation of a “radius log” at face value, and other commenters feeling confident that this is a MESSED-UP reference to the well-known “Remote Authentication Dial-In User Service (RADIUS)”, and RADIUS's equally well-known logging.

Do you think that Judge Marrero understood whatever technical explanation he may have received regarding a “radius log” ?
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TechDescartes (profile), 1 Dec 2015 @ 10:54am

Re: RADIUS
No, because the government presumably used circular reasoning to explain it.
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Anonymous Anonymous Coward, 1 Dec 2015 @ 10:57am

A pleasure doing business
We wish to redact the fact that our redactions support all contentions that we are unmitigated a--holes operating in an environment where we are allowed (absolutely) to express our a--holedness to the nth degree (proudly) and not admit it to anyone we don’t want to, at least until some judge gets all uppity and gets in our way. We have ways to deal with the likes of them.
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Anonymous Coward, 1 Dec 2015 @ 11:05am

Re: Re: RADIUS
No, because the government presumably used circular reasoning to explain it.
Are you implying that the government lawyer who explained “radius logs” to Judge Marrero didn't quite understand the technical details?
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TheResidentSkeptic (profile), 1 Dec 2015 @ 11:12am

This can't be right
Name address and phone # ???

uh... isn't that called the "white pages" and freely available pretty much everywhere???

Aren't there several dozen web sites that have this already?

Why is an NSL needed for this?

oh wait.. ."Intelligence" agencies are involved here...
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TechDescartes (profile), 1 Dec 2015 @ 11:17am

Re: Re: Re: RADIUS
No, that would depend entirely on whether the lawyer had enough degrees.
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sigalrm (profile), 1 Dec 2015 @ 11:17am

A Redactor with a conscience?
Looking at the redactions in this case, I have to wonder if whoever was doing the job purposefully botched it in order to intentionally weaken the governments arguments in court.

While it's tempting to dismiss actions like this as "government stupidity", you don't get to a position of responsibility where you're entrusted with redacting documents if you're not at least a little intelligent. You're looking at someone who's at least a little bit smart in terms of legal requirements and who probably has some operational experience in the area as well.
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Anonymous Coward, 1 Dec 2015 @ 11:20am

"a potential target of an investigation, even a dim-witted one, would almost certainly be able to determine, simply by running through the alphabet, that 'telephone number█' could only be 'telephone numbers.'"

Oh thank goodness! The government hasn't gotten around to asking companies for my telephone numbert. They'll never catch me now!
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Anonymous Coward, 1 Dec 2015 @ 11:21am

Forced?
You say the judge was forced, but I didn't see anything to support it. How does this work? Who forces judges to redact, and do they actually have authority to do so? (Given independent government branches etc.)
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Esteban, 1 Dec 2015 @ 11:31am

Re: A Redactor with a conscience?
No, the government doesn't need any help to look dumb, stupid, etc. And yes, Virginia, the smartest people in the government don't always rise to the top. Fact is the government shot themselves in the foot. So, try as you may to blame someone else, it ain't so. The blame is their own.
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Anonymous Coward, 1 Dec 2015 @ 11:31am

Wait - Leahy Letter? As in Patrick Leahy? He's the one that championed the recent USA Freedom Act. Could he be the one for which Calyx got the NSL?
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Anonymous Coward, 1 Dec 2015 @ 11:38am

Re: This can't be right
Name address and phone # ???

uh... isn't that called the "white pages" and freely available pretty much everywhere???
Not exactly. There are unlisted numbers and also "unofficially unlisted" numbers (where you ask the phone company to list under an alternate name, to avoid paying the unlisted number fee). And phonebooks don't list an evening number for each person; it's not clear why a phone company would have it, but maybe they store the number a customer calls from when setting up or changing an account. It's still ridiculous that the government was fighting for redaction.
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Anonymous Coward, 1 Dec 2015 @ 11:41am

The guilty until proven innocent pretending to be the innocent until proven guilty age

Its been going on nigh couple hundred years now i reckon, the pretendings new........ wonder when it will end
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David, 1 Dec 2015 @ 12:27pm

Re: Re: A Redactor with a conscience?
The smartest people in the government are not even on the government's payroll.
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David, 1 Dec 2015 @ 12:29pm

Re:
More like "innocent until broke".
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tqk (profile), 1 Dec 2015 @ 2:04pm

Re: Re: Re: Re: RADIUS
No, that would depend entirely on whether the lawyer had enough degrees.

How much more circular is this argument going to get? I believe we've defined its circumference now, unless there's a spherical dimension yet to be revealed.
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tqk (profile), 1 Dec 2015 @ 2:17pm

Re: A Redactor with a conscience?
Looking at the redactions in this case, I have to wonder if whoever was doing the job purposefully botched it in order to intentionally weaken the governments arguments in court.

I have to wonder if they're just tying up or filling the queue with as much crap as they can find to slow the process down to the speed of molasses in Antarctica. With shit like this tying up the courts, we can just give up on this vector. It's a pointless exercise in time and resource wasting.
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Anonymous Coward, 1 Dec 2015 @ 3:47pm

Re: Re: Re: Re: RADIUS
Ah; I see the problem: the lawyer opted for radians instead of degrees.
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Anonymous Coward, 1 Dec 2015 @ 8:02pm

Re:
Shush, you! I don't want the government to start asking about my numbernie.
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nasch (profile), 2 Dec 2015 @ 9:02am

Re: Re: Re: Re: RADIUS
Good point.
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GEMont (profile), 2 Dec 2015 @ 6:59pm

Re: A Redactor with a conscience?
It is indeed altogether possible.... and hopefully will become more and more the case.

I think what you're referring to will eventually become common, as people start to view the whistleblower as the people's hero against the institutional and corporate tyranny.... commonly called fascism. Snowden has laid a very good road upon which that kind of public hero can evolve.

Once started upon the road to Fascist Empire, there is no turning back for government because of the constantly increasing accumulation of criminal activities that need to be undertaken to achieve the goal of Empire.

To stop is to be caught with their myriad hands in all of the cookie jars.

Instead, the process of fear mongering via Drug War, Terror War, Cyber War, Etc. War and its accompanying pseudo-free-press scare stories has to escalate exponentially, mainly to keep the public off balance and under constant pressure and to prevent the public from having enough time to realize and analyze the flaws in the "Official Story" accompanying each pseudo-crisis and false flag operation.

I think we will be seeing more and more hidden informants and secret whistleblowers as time goes by and the government's escalating assault on freedom and "rights" becomes obviously its only real goal.

I am absolutely certain that if I were in a position of trust in one of the federal agencies today, and a young man, I would definitely be looking into ways and means of defeating the monster from within.

---
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GEMont (profile), 2 Dec 2015 @ 7:24pm

Re: Re:
Shouldn't that be:

Guilty until proven guilty.

Nobody's innocent.

---
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tqk (profile), 3 Dec 2015 @ 1:07pm

Re: Re: A Redactor with a conscience?
Snowden has laid a very good road upon which that kind of public hero can evolve.

We've had this lesson, but people are naturally lazy, unfortunately. That can change.

People who don't remember history, blah, blah, blah.
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