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

from the now-revealed dept

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.

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

Recipient Of FBI National Security Letter Can Finally Reveal Details, 11 Years Later

from the and-it's-just-as-messed-up-as-expected dept

Back in October, we followed up on a much older story concerning Nicholas Merrill, the owner of Calyx Internet Access, who back in 2004 had received one of the FBI's infamous National Security Letters (NSLs) complete with a total gag order on it. NSLs have long been widely abused by the FBI to (unconstitutionally) get around the 4th Amendment, demanding all sorts of information from private parties and then putting a perpetual gag order on the request, which also would seem to violate the 1st Amendment. Merrill fought back against the NSL -- at first anonymously because he wasn't even allowed to admit to anyone that he'd received one. In 2010, Merrill was finally granted the right to admit that he had received an NSL and that he was fighting it. But he still couldn't reveal much more than that.

The October ruling said that the entire gag order needed to be lifted, and that Merrill should be able to finally reveal the actual NSL -- and that has now happened. You can see the ridiculously broad list of information that was demanded from Merrill.

Merrill is now able to reveal that the FBI believes it can force online companies to turn over the following information simply by sending an NSL demanding it: an individual’s complete web browsing history; the IP addresses of everyone a person has corresponded with; and records of all online purchases. The FBI also claims authority to obtain cell-site location information with an NSL, which effectively turns a cell phone into a location tracking device. In court filings, the FBI said that at some point it stopped gathering location data as a matter of policy, but that it could secretly choose to resume the practice under existing authority.

“For more than a decade, the FBI has been demanding extremely sensitive personal information about private citizens just by issuing letters to online companies like mine,” said Mr. Merrill.   “The FBI has interpreted its NSL authority to encompass the websites we read, the web searches we conduct, the people we contact, and the places we go. This kind of data reveals the most intimate details of our lives, including our political activities, religious affiliations, private relationships, and even our private thoughts and beliefs,” he explained.

As Marcy Wheeler notes, the depth of information that the NSL was getting willy nilly with no oversight at all through NSLs is rather astounding.

This is what the government means when it does “connection” chaining: gluing together every fragment of your online life together to see it all.

The ACLU has also helpfully created a graphic showing the gradual revealing of this NSL, with each part of the legal fight unmasking a bit more over the course of this decade-plus battle: Along with the NSL details, Merrill was also able to release an unredacted version of October's ruling -- and we'll deal with that in a separate post, so stay tuned.

Filed Under: censorship, doj, fbi, first amendment, fourth amendment, gag order, national security letters, nicholas merrill, nsl
Companies: calyx

Federal Court Finally Says That Gag Order On 11-Year-Old National Security Letter Should Be Lifted Already

from the big-win dept

Five years ago, we wrote about a pretty big victory against National Security Letters (NSLs), which the government has long used to get around the 4th Amendment, demanding information from companies, complete with a perpetual gag order. In 2007, an anonymous ISP owner fought back, speaking out against the whole gag order thing, but not even being able to say what ISP he was associated with, because of that gag order. In 2010, Nicholas Merrill, of Calyx Internet Access, was finally able to admit that he was the one fighting the gag order -- after reaching an agreement with the government (and that was after a number of trips back and forth between the district and appeals courts). Now, five years later, a federal court has finally ruled that the gag order, which was issued back in 2004, should be lifted, because the government has no "good reason" for keeping it in place and keeping the gag order would violate the First Amendment. You can read the redacted order here, which is an interesting read. Basically, a permanent gag order doesn't really fit with that whole First Amendment thing we have here in the US -- but the court prefers to focus on whether or not there's any reason to keep the order in place now.

There's a lot of procedural history here (which explains why it took this long for a ruling, but...). It turns out that in 2014, Merrill and the DOJ reached a further "agreement" that allowed Merrill to talk more about the NSL, but said he could still not discuss an attachment that explained what kinds of records the government sought. This latest part of the lawsuit is about that last remaining part of the gag order. And the court is not impressed by it at all.

Here, the Government has not demonstrated a good reason to expect that public disclosure of the parts of the Attachment that remain confidential would risk one of these enumerated harms; nor has the Government provided the Court with some basis to assure itself that the link between disclosure and risk of harm is substantial. The Government's justifications might constitute "good" reasons if the information contained in the Attachment that is still redacted were not, at least in substance even if not in the precise form, already disclosed by government divisions and agencies, and thus known to the public. Here, publicly-available government documents provide substantially similar information as that set forth in the Attachment. For that reason, the Court is not persuaded that it matters that these other documents were not disclosed by the FBI itself rather than by other government agencies, and that they would hold significant weight for a potential target of a national security investigation in ascertaining whether the FBI would gather such information through an NSL. The documents referred to were prepared and published by various government divisions discussing the FBI' s authority to issue NSLs, the types of materials the FBI seeks, and how to draft NSL requests.
<
Indeed, one of these documents is a publicly-available Department of Justice Office of Legal Education manual that provides a sample attachment that encapsulates much of the redacted-information in the Attachment here in dispute....

[....]

The Government contends that if the parts of the Attachment that remain secret are disclosed, potential targets could change their behavior to evade law enforcement. But those targets can already learn, based on publicly available infonnation, that the FBI could obtain such information through NSLs.

In the end, the court says the gag order makes no sense.

... the Court finds that the Government has not demonstrated a good reason to believe that potential targets of national security investigations will change their behavior to evade detection, or that disclosure of the Attachment in its entirety would create a substantial risk of one of the statutorily enumerated harms.

And then there's the whole First Amendment thing. The court notes that if it accepted the DOJ's arguments, the First Amendment would have an issue with that:

If the Court were to find instead that the Government has met its burden of showing a good reason for nondisclosure here, could Merrill ever overcome such a showing? Under the Government's reasoning, the Court sees only two such hypothetical circumstances in which Merrill could prevail: a world in which no threat of terrorism exists, or a world in which the FBI, acting on its own accord and its own time, decides to disclose the contents of the Attachment. Such a result implicates serious issues, both with respect to the First Amendment and accountability of the government to the people. As Judge Cardamone warned in his concurrence in Doe v. Gonzales, "a ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens," and such unending secrecy could "serve as a cover for possible official misconduct and/or incompetence."

But the court, unfortunately, refuses to take things one step further, in saying that the gag order itself violated his First Amendment rights. Instead, it focuses just one whether or not the government still has a "good reason" to keep the gag order in place. Saying that it no longer does, it says it has no need to address the more constitutional question of whether or not the gag order itself violated Merrill's rights.

Also, somewhat amusingly, because the court is ordering the DOJ to lift the gag order, but because it's technically still in place, you get some odd redactions in the ruling, where the government is pointing out why certain things should not be redacted... but they still are, likely because the gag order is still in place, even as the court has ordered it lifted. There are a lot of these kinds of examples, but here's a shorter one: And another longer one:
Oh, and then there's this glorious footnote: The court is not persuaded, but everything is blacked out anyway. Because that's how these things work. In fact, Merrill remains gagged for 90 days, and only after that can he actually reveal what the FBI asked for 11 years ago.

Filed Under: doj, fbi, first amendment, free speech, gag order, national security letters, nicholas merrill, nsl, nsls, redactions
Companies: calyx

FBI Drops Another Questionable NSL After Microsoft Challenges It In Court

from the fighting-back dept

Microsoft has announced that its challenge against a National Security Letter (NSL) has finally been unsealed after the FBI dropped the request. If you're not familiar with them, the NSL is a process by which the FBI can basically demand a company hand over just about anything, by claiming its a matter of national security. As we've discussed, National Security Letters -- which come with built in gag orders -- are very rarely challenged. Two years ago, we noted that despite 50,000 NSLs, many of them later determined to be abusive, there had been only four challenges and the FBI simply dropped the requests on two of them.

Since then, it seems clear that there has been an uptick in companies challenging though they're still hidden by the gag orders. Microsoft specifically challenged that gag order, leading the FBI to withdraw its letter. But, that also means that the FBI doesn't get in any trouble at all for abusing the NSL process and fishing for information. Already, one court has found those letters unconstitutional, but that decision has been stayed while it goes through the lengthy appeals process. In the meantime, the FBI gets to keep fishing. It's good to see Microsoft challenging them, but this story could just as easily be "FBI gets away with yet another fishing expedition."

Filed Under: challenge, doj, fbi, national security letter, nsl, nsls
Companies: microsoft

EFF Sues Over National Security Letters... But Can't Tell You Who Its Clients Are

from the because-secrecy dept

The ridiculous (and most likely illegal) gag orders around widely abused "National Security Letters" (NSLs) is pretty widely known. It's created absurd situations in which companies have had to go to court secretly without being able to admit that they were fighting on behalf of their users, except in rare cases where the gags are finally lifted.

Well, here we go again, as the EFF has challenged NSLs issued to two separate companies -- one telco and one internet company. However, because of the gag orders, EFF isn't even allowed to say who its clients are in these filings.

The Electronic Frontier Foundation (EFF) filed two briefs on Friday challenging secret government demands for information known as National Security Letters (NSLs) with the Ninth Circuit Court of Appeals. The briefs—one filed on behalf of a telecom company and another for an Internet company—remain under seal because the government continues to insist that even identifying the companies involved might endanger national security.

While the facts surrounding the specific companies and the NSLs they are challenging cannot be disclosed, their legal positions are already public: the NSL statute is a violation of the First Amendment as well as the constitutional separation of powers.

We have yet to see any good reason for why the government can claim that the mere fact that a company has received a National Security Letter needs to be classified.

Filed Under: eff, first amendment, gag order, nsl, secrecy

Eric Holder Officially Signs New Rules To Protect Journalists... But Fine Print Shows They're Meaningless

from the that's-a-mighty-big-loophole-you've-got-there dept

Last summer, after there were a few different revelations (pre-Snowden) of the DOJ using questionable means to spy on journalists -- including pretending one reporter was a co-conspirator in order to get his records -- Attorney General Eric Holder promised new rules that would be marginally more respectful of protecting journalists. While recent reports have suggested that these new guidelines were considered official policy in the DOJ for the past few months, last week they were officially signed by Holder.

As expected, the rules do suggest a slight nod towards respecting the privacy of journalists who are engaged in "ordinary news-gathering activities" but leaves open plenty of loopholes. The biggest, by far, is noted by Marcy Wheeler, who points out that the new rules don't cover FISA warrants or National Security letters. In other words, the DOJ can still make use of the massively abused process of national security letters (NSLs) to go on fishing expeditions against journalists. As Wheeler notes, this means that the new guidelines are "worth approximately shit in any leak -- that is, counterintelligence -- investigation."

The whole thing is a joke, but the problem is that the idea of a free and open press is the punchline.

Filed Under: doj, eric holder, fisa, free press, journalism, nsl

Obama Plans Cosmetic Surveillance Changes After All, Will Set Up Pretend Fight Over NSLs

from the theatrical-reforms dept

Leaks coming out of the Obama administration suggest that the President is preparing mostly cosmetic changes to the intelligence community, following the recommendations from the intelligence task force -- which were much stronger than many expected. The reports suggest things like putting a public advocate to represent the public's views in certain cases before the FISC. This has been talked about for a while, and was the main concession plenty of people had been expecting anyway. That's hardly anything big.

The article talks about two other potential reforms. The first is shifting the holding of phone call metadata from the NSA to the phone companies, allowing the NSA to still search through it after getting a court order. While this may be a marginal improvement, it still has tremendous problems. It will almost certainly come with some sort of data retention law -- something that the feds have wanted for ages, and which civil liberties activists have been fighting against for years. Companies shouldn't be required to hang on to data they don't need, especially if getting rid of it can better protect their users' privacy. Furthermore, while not letting the NSA hang onto the data is a good thing, there is a reasonable concern that if the telcos are hanging onto the data themselves, that they, too, might do bad things with it, with little to no oversight.

However, most of the article from the LA Times focuses on National Security Letter (NSL) reform. We've written about those for years. NSLs are the way that the FBI can demand information from companies without any judicial review at all and, even more insane, with a complete gag order that prevents the recipient from telling anyone (including, at times, your lawyer). The FBI has an incredibly long history of "serious misuse" of NSLs, and has shown little to no interest in fixing the process. Nearly a year ago, a court actually ruled them unconstitutional, but there's an ongoing appeals process that will take quite a bit of time.

However, as the article notes, the DOJ/FBI and other surveillance maximalists are all horrified by the idea that Obama might actually require judicial approval of NSLs, for all but "emergency" situations. What this sounds like is that the President may suggest something along those lines, there will be a well coordinated press attack from surveillance hawks freaking out about the danger this puts us all in... and then he'll back down on that one point. And we'll be left with... basically nothing, but the President will go around insisting that he reformed the intelligence community, while everything more or less stays the same.

Filed Under: barack obama, fisa court, fisc, national security letters, nsa, nsl, public advocate, reform, surveillance

Shocker: Court Says National Security Letters Are Unconstitutional, Bans Them

from the didn't-see-that-coming dept

Well here's a surprising (and important) bit of late-Friday-breaking news. A federal court has ruled that national security letters (NSLs) are unconstitutional, and banned their use. For years we've covered the use and abuse of NSLs, which basically allow law enforcement to demand (with almost no oversight) information from service providers, and which include a total gag order, entirely blocking people from talking about the letters. These NSLs are used all the time, and pretty much every time anyone looks into the use of NSLs, there's an admission that they're abused, but little has been done to fix that. Until now.

We wrote about this particular case last year, when the DOJ took the extraordinary step of suing a telco for daring to question whether or not NSLs were legal, claiming that its failure to hand over the info violated the law. The court disagreed.

The Court finds that, as written, the statute impermissibly attempts to circumscribe a court's ability to review the necessity of nondisclosure orders. As noted above, while not a "classic" prior restraint or content-based speech restriction, the NSL nondisclosure provisions significantly infringe on speech regarding controversial government powers. As such, the Court can only sustain nondisclosure based on a searching standard of review, a standard incompatible with the deference mandated by Sections 3511(b) and (c). As written, the statute expressly limits a court's powers to modify or set aside a nondisclosure order to situations where there is "no reason to believe" that disclosure "may" lead to an enumerated harm; and if a specified official has certified that such a ham "may" occur, that determination is "conclusive." The statute's intent -- to circumscribe a court's ability to modify or set aside nondisclosure NSLS unless the essentially insurmountable standard "no reason to believe" that a harm "may" result is satisfied -- is incompatible with the court's duty to searchingly test restrictions on speech. See, e. John Doe, Inc. v. Mukasey, 549 F.3d at 883 ("The fiat of a governmental official, though senior in rank and doubtless honorable in the execution of official duties, cannot displace the judicial obligation to enforce constitutional requirements. 'Under no circumstances should the Judiciary become the handmaiden of the Executive.'

The remedy is to bar the government from issuing any NSLs or enforcing the nondisclosure gag order in any issued NSLs... but, knowing that the government is going to appeal, it has given a window for that to happen. So, we've got a long way to go before we see what happens here, but make no mistake, this is a huge ruling pushing back on a massive abuse of power by the government.

Filed Under: constitutionality, national security letters, nsl

Justice Department Sues Telco For Daring To Challenge Its Secret Demands For Private Information

from the hubris dept

The US Justice Department really does seem to be completely drunk with power these days. We've written before about how the FBI is famous for abusing the powers of "National Security Letters" (NSLs) that allow them to demand information from service providers, financial firms and the like -- with a built-in gag order. A few years ago, we wrote about an ISP, Calyx, which challenged an NSL it received, and had to fight the DOJ in complete secrecy for years, until the DOJ basically dropped the request and allowed Calyx's Nicholas Merrill to go public with the details of the legal fight.

However, in news revealed this week, there is a second telco that isn't just challenging an NSL -- which is not only expressly allowed under the law, though now the DOJ is required to tell recipients this fact with the NSL -- but also challenging the whole NSL process itself. In response, amazingly, the Justice Department sued the telco, claiming that it failed to hand over the information requested in the NSL, as required by law. There's no way to look at this other than as a vindictive move by the DOJ.

Instead of responding directly to that challenge and filing a motion to compel compliance in the way the Justice Department has responded to past challenges, government attorneys instead filed a lawsuit against the telecom, arguing that by refusing to comply with the NSL and hand over the information it was requesting, the telecom was violating the law, since it was “interfer[ing] with the United States’ vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security.”

They did this, even though courts have allowed recipients who challenge an NSL to withhold government-requested data until the court compels them to hand it over. The Justice Department argued in its lawsuit that recipients cannot use their legal right to challenge an individual NSL to contest the fundamental NSL law itself.

All of this came out this week after it having been secret for some time, thanks in part to the EFF's efforts to get some of the information public. The Wall Street Journal appears to have identified the telco in question as Credo, a small Northern California company.

The DOJ's response to the challenge -- suing the telco -- is incredibly aggressive, and is clearly designed to create a massive chilling effect for any other organization who might challenge an NSL, despite the clear legality of issuing such a challenge. This kind of response from the DOJ, however, is par for the course these days. It's been quite aggressive in trying to silence those who criticize its efforts, and this is just the latest example. While the excellent Wired article linked above finds it surprising that the government allowed the evidence of this DOJ lawsuit to become public, I don't think it's that surprising. If the goal is to create chilling effects and intimidate lots of others into not challenging NSLs, then letting it be known that you sued a telco who tried would certainly get the job done.

Filed Under: chilling effects, doj, justice department, national security letters, nsl, privacy, surveillance
Companies: credo, eff

Very Few Companies Fight Back Against Patriot Act Gag Orders

from the sad-to-hear dept

A few years ago, when we wrote about Nicholas Merrill's successful fight to reveal that his ISP had been gagged by a "national security letter" (NSL) from the FBI, we noted that "For every Nicholas Merrill, you can bet that thousands of others just gave in and didn't put up a fight -- even if the requests were bogus." It appears that was absolutely true.

Wired reports that, in the past few years, since the FBI was told it needed to at least tell companies they could challenge the gag order on NSLs, only four challenges have been issued on over 50,000 NSLs. In two of the four cases, the FBI backed down and let the company notify the individual. As Wired notes, it had asked the FBI the same question a couple months ago, and the FBI claimed (incorrectly) that "there are no stats" and suggested that no one had challenged it other than Merrill.

Remember, NSLs are requests from the government (along with a gag order), but they are not subpoenas nor do they have any real oversight. Yet the FBI gets to issue tens of thousands of them, asking companies for information -- and imposing a strict gag order on them -- and most companies just roll over and do it.

Filed Under: fbi, nicholas merrill, nsl, patriot act