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

Google's Latest Transparency Report Mocks The Gag Order FISC Puts On Them Over NSA Requests

from the not-so-subtle dept

Google has released the latest version of its transparency report concerning government requests. While they focus on how government requests for information have doubled over the past three years, they also have a not-at-all-subtle jab at the FISA Court and the DOJ for continuing to block their efforts to reveal how many FISA Amendments Act Section 702 requests (the so-called PRISM requests) they get from the government, and how many people it impacts. As you hopefully already know, Google (along with other tech companies) is in the process of suing the government over this restriction on its free speech. You can see that demonstrated pretty clearly in the bottom righthand quadrant of the graphic they released. Just call it the "redacted" infographic. Google's legal director on this issue, Richard Salgado, explains:

We want to go even further. We believe it’s your right to know what kinds of requests and how many each government is making of us and other companies. However, the U.S. Department of Justice contends that U.S. law does not allow us to share information about some national security requests that we might receive. Specifically, the U.S. government argues that we cannot share information about the requests we receive (if any) under the Foreign Intelligence Surveillance Act. But you deserve to know.

Earlier this year, we brought a federal case to assert that we do indeed have the right to shine more light on the FISA process. In addition, we recently wrote a letter of support (PDF) for two pieces of legislation currently proposed in the U.S. Congress. And we’re asking governments around the world to uphold international legal agreements that respect the laws of different countries and guarantee standards for due process are met.

The longer the government keeps this form of censorship up, the worse it looks. What could possibly be "revealed" by letting Google and others say how many requests they've received under that act? The pervasive secrecy from the NSA may be a cultural trait, but there is no basis for it here.

Filed Under: first amendment, fisa amendments act, gag order, nsa, section 702, surveillance, transparency, transparency report
Companies: google

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 Of course, stuff gets filed under seal all the time, and it's not particularly uncommon to see redacted passages in legal documents -- especially (obviously) when it has to do with matters of national security. But, here's what's different. Normally the opposing parties in the case are allowed to see the details of what's redacted. Here, the DOJ is simply refusing to let the tech companies see its own argument. In response, the companies have filed a pretty direct and somewhat angry motion, asking the FISA court to either let them see the arguments, or to strike the redacted portions from the DOJ's motion. Basically, the DOJ is saying that it can make legal arguments that only the court can see, but which the tech companies suing it cannot see. That goes against every basic concept of due process.

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.

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.

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?

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

Patent Troll That Accused Company Of 'Hate Crime' For Fighting Back Now Asking Court To Silence Company

from the you-fail-at-law dept

We recently wrote about how patent troll Lumen View's lawyer Damian Wasserbauer had gone off the deep end, claiming that an entrepreneur who was fighting back against the trolling was guilty of a hate crime. Kevin O'Connor, the CEO of FindTheBest (FTB) didn't want to give in to a patent troll shakedown, turning down a $50,000 settlement offer and pledging to spend $1 million fighting Lumen View just on principle. That's resulted in a countersuit, arguing that Lumen View is engaged in extortion and racketeering. Wasserbauer (who, frankly, appears to be a bit out of his league here) doesn't seem to be handling the publicity very well. He's asking the court for an astoundingly broad gag order against O'Connor, including saying he needs to try to remove from the internet prior disclosures.

For the foregoing reasons, Lumen View respectfully requests that the Court grant its Motion for a Protective Order ... to protect Lumen View’s confidential information and (1) prohibiting FTB and its attorney from further communicating with representatives of the media regarding confidential settlement information, or posting such information on social media, (2) require FTB and counsel to take necessary steps to remove from the internet its prior media disclosures, blog posts or press releases that disseminate this protected information, and (3) to grant any other such relief as this Court deems just and proper.

Yeah, good luck with that...

Of course, as Joe Mullin notes over at Ars Technica, the entire basis of Wasserbauer's argument appears to be a significant misreading of the law:

Wasserbauer's request has a couple of problems. First, his idea of what constitutes "confidential information" is pretty broad—it includes not just the $50,000 demand but Wasserbauer's own simple admission about who is behind Lumen View. Second, FindTheBest never signed any kind of non-disclosure or confidentiality agreement....

[....] The rule that Wasserbauer cites, Rule 408 of the Federal Rules of Evidence, is not actually the legal gag order he apparently imagines it to be. The rule doesn't say anything about talking to the media. It simply states that offers of compromise or settlement are often not admissible as evidence in court.

And we won't even get into the laughable claims by Wasserbauer that there's no First Amendment worries in such a gag order, because that's clearly false. It seems clear that Wasserbauer isn't happy with the media attention -- most trolls aren't -- especially since it's been fairly effective in highlighting the way Lumen View's trolling works. Trolls often get away with what they do because it's too much effort to even figure out how to fight back. If someone else is doing it publicly, it lowers the barrier tremendously.

Filed Under: damian wasserbauer, gag order, kevin o'connor, patent trolls, patents
Companies: findthebest, lumen view

Canada Forcing Wounded Vets To Sign Agreement Not To Criticize The Military On Social Media

from the free-speech? dept

Rob Hyndman alerts us to yet another attack on free speech up in Canada. The Canadian Armed Forces are apparently forcing wounded veterans to sign a form promising not to criticize the military on social media. In fact, they're told they should "discourage others in uniform." They're also told not to discuss "your views on any military subject." Not surprisingly, many of those receiving these forms are not too pleased about it. The military claims that it's just been designed to "educate" veterans. The statement to the Ottawa Citizen is quite incredible:

In an email to the Citizen, the JPSU denied that the creation of the policy and document was designed to stifle criticism of politicians and senior military staff. It was created “in an effort to educate our members and personnel on what constitutes the appropriate and inappropriate use of social media and the possible ramifications for a CAF member,” the email added.

But, many others quoted in the same article note that it goes way beyond an education effort, and is clearly much more of an attempt to stifle free speech and criticism of the military.

Ottawa lawyer and former military officer Michel Drapeau said the form is an obvious attempt to intimidate those who were injured and prevent them from speaking out about ill treatment.

“It’s not illegal but it’s obviously a threat,” said Drapeau, who has represented injured soldiers as they try to get benefits from the federal government. “The criticism about the leadership’s failure to take care of the wounded is obviously hitting home.”

There is, of course, a fine line -- especially with military personnel -- about what they can and should communicate with the rest of the world. But this really does seem like a way to try to silence wounded vets who might have very legitimate criticisms as to how they've been treated.

Filed Under: canada, free speech, gag order, social media, veterans

Officer Brings Security Flaw To Army's Attention; Army Threatens Him With Jail If He Talks About It

from the good-deeds-won't-go-unpunished,-not-in-this-man's-Army! dept

It's a common, but regrettable, reaction. Person A discovers flaw in computer security. This is brought to the attention of Persons B-whatever. Person A is threatened, bullied, fined, expelled, etc. for daring to highlight a potentially damaging security issue. In extreme cases, some even throw the highly-flawed CFAA at the person, accusing them of hacking, "exceeding authorized access."

Why? Who knows? Apparently nothing fixes a security flaw faster than acts of intimidation and the resultant bad press. The US Army presumably holds the power to actually shoot the messenger, but thankfully, it didn't take things that far.

A soldier was made to sign a non-disclosure agreement by the US Army after pointing out a security flaw which allowed accounts on shared PCs to be accessed without proper authentication…

Army staff authenticate on shared computers on bases and in the field using Common Access Code (CAC) smart ID cards. On completing a session the card is removed from the reader and the session should be terminated. However, it appears that the logoff process is often slow and can easily be cancelled by the next user, who can then continue to access the system under the previous user's account.

While I can almost see the rationale for this action (don't talk about this until we can fix it), it's severely undercut by the fact that the US Army a) had no intention of fixing it and b) had previous knowledge of the flaw's existence.

The issue has been known about for over two years, with one Army lieutenant who spotted it facing all manner of troubles when he tried to report it to senior staff. Having been told that the problem was too tricky to fix, he was then allegedly made to sign a non-disclosure agreement and told he could face imprisonment if he broke it.

Others who pointed out the flaw to superiors were faced with silent inaction.

I guess the Army figured it could just wait it out. Maybe the system would mend itself, using some sort of nanobot AI or something. I'm pretty sure I read something in Omni about in back in '81... In the meantime, it applied the most minute of Band-Aids to the problem.

A statement issued by senior Army IT security staff after the problem appeared in the news has advised soldiers to be more careful when logging out of shared PCs.

Right. Because that "be careful" statement works so well at libraries, schools, offices… basically anywhere anyone shares computers. Of course, most shared computers won't have access to information that could potentially pose a threat to a nation's military if it made it out into the wild. The Army seems to somewhat feel this non-solution might be inadequate, so it's applying another set of "be careful" Band-Aids in a way only a large government entity can: with handbooks and motivational posters and weeklong events.

In response to the problem they are planning an “Information Assurance/Cybersecurity Awareness week” in October as a follow-up measure to their new handbook, released last February, which stresses the importance of individual responsibilities to protect information. According to Lundgren, the handbook “augments current policy, training, and inspection processes and aims to raise awareness and change culture.”

I'm guessing the effectiveness of this program will be in the 0% range. It's tough to get anyone to care about an issue you can't be bothered to fix, no matter how many reminders clog up soldiers' inboxes or how many commanding officers read the mandatory "IA/CA Week" announcement in a low, perfunctory monotone.

And once again, we're back to the crux of the issue: the Army won't fix the problem. It doesn't seem impossible or even extraordinarily difficult. There is the matter of scale, which does complicate things, but refusing to tackle the root problem means the hole in the system will remain open and exploitable, no matter how many soldiers are forced into signing NDAs or threatened with jail time or bored to death by "awareness" presentations.

Considering the recent NSA leaks, you'd think the Army would be hammering away at the problem with alacrity, rather than throwing updated policies and freshly-printed handbooks at its personnel.

Filed Under: army, gag order, nondisclosure, security, security through obscurity

Court Tells Journalist Barrett Brown He And His Lawyers Can't Talk To The Press Any More

from the that's-insane dept

We just wrote about the ridiculousness of Barrett Brown's case, in which he's been in jail and facing a very long sentence mainly for copying a URL from one place to another, but also because the feds have been seeking a media gag. Tragically, the court has now granted that gag order. Neither Brown nor his legal team is allowed to speak to the media:

No person covered by this order shall make any statement to members of any television, radio, newspaper, magazine, internet (including, but not limited to, bloggers), or other media organization about this case, other than matters of public record, that could interfere with a fair trial or otherwise prejudice Defendant, the Government, or the administration of justice....

This gag order seems somewhat ridiculous. The idea that having Brown or his legal team talking to the press would somehow unfairly bias the jury in his case is ridiculous. It's perfectly reasonable to expect Brown and his legal team to try to draw attention to the ridiculousness of the case, and the only purpose of this sort of gag order is to silence the press and keep the story from getting the kind of attention it deserves, as yet another example of prosecutorial overreach by the DOJ.

Filed Under: barrett brown, bias, free speech, gag order, journalism

Google, Without Admitting It Gets FISA Orders, Files Lawsuit To Challenge FISA Gag Orders

from the well-that-ought-to-be-interesting dept

Google appears to be stepping it up a notch in trying to fight back against the claims that it is somehow opening up its system to the NSA or other law enforcement folks. As you now know well, one of the leaks from Ed Snowden a few weeks ago was about a system called PRISM, which is associated with how tech companies provide information to the federal government in response to FISA court orders. The initial reports, claiming that the NSA had full direct access to servers and could see what people were doing in real time, appear to have been extremely overblown, as it now seems clear that this was much more narrow. But there's still a big question of how narrow. Google sent an open letter to the DOJ, asking for permission to reveal basic numbers on how many FISA requests they receive and how many people have had information passed along to the government under the program. The government then gave "permission" in a way that actually further obfuscated things, only allowing the release of numbers when combined with all sorts of other government requests.

Now, Google has filed a lawsuit against the government, arguing that gag orders on FISA requests violate the First Amendment. The filing itself is an interesting read, in part for its first footnote:

Nothing in this Motion is intended to confirm or deny that Google has received any order or orders issued by this Court.

Of course, that might lead some to suggest that Google can't actually have standing, but there's an interesting legal argument here. Basically, Google is arguing that the perception that it's opened up its network to the NSA, as suggested in various reports, and which it cannot refute fully without revealing some details of FISA orders it has received, has caused it harm.

Google's reputation and business has been harmed by the false or misleading reports in the media, and Google's users are concerned by the allegations. Google must respond to such claims with more than generalities. Moreover, these are matters of significant weight and importance, and transparency is critical to advancing public debate in a thoughtful and democratic manner.

Given that, Google is seeking a declaratory judgment from the court that it has a First Amendment right to publish the total number of FISA requests it receives and the total number of users associated with those requests, though obviously not anything more. I'm sure the government will come back with all sorts of excuses as to why this is horrible, but it certainly presents an interesting legal challenge to the FISA court's gag orders.

Filed Under: first amendment, fisa, fisa court, free speech, gag order, prism
Companies: google

ISP Owner Finally Able To Admit That He Stood Up To The FBI Over Questionable Data Request

from the only-six-years-later dept

We've noted, repeatedly, that the feds have been caught abusing National Security Letters (NSLs) to try to get information they had no legal right to get. Because these NSLs usually contained an immediate gag order and no judicial review, basically the FBI could request whatever it wanted, and no one would review it and people couldn't speak out against it. So it was great to hear, about three years ago, that one ISP owner recipient of such an NSL was anonymously fighting back, specifically about the required gag order. We were disappointed last year, when a judge refused to drop the gag order, even if the actual request had been dropped by the feds.

However, six years after first receiving the NSL, Nicholas Merrill, the head of Calyx Internet Access is finally able to admit that he's the guy who's been fighting this legal battle. Prior to this, he'd even kept it secret from his fiancee, family and friends -- even when they happened to bring up the case in casual conversation. Of course, this doesn't change that it happened, and even if we keep being told that the feds have been ordered to stop abusing these processes, there's little to no evidence that anything is really being done. 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.

There is a clear legal process for obtaining information, involving warrants and judicial oversight. I have no problem with attempts to get information through such means. But when law enforcement routes around those oversight channels, and then tries to gag people from even talking about it, there's a serious problem.

Filed Under: free speech, gag order, national security, nsls
Companies: calyx internet access, fbi

Vancouver Olympics Silences Indie Rock Acts With Contractual Gag Order

from the stay-quiet-now dept

We've covered how the Olympics has time and time again abused intellectual property law to try to silence all sorts of reasonable activity, and the upcoming Vancouver Olympics have been no exception. In the latest move, sent in by drewmo (though he forgot the link, and made us go searching...) is that a Vancouver-based musician, Carey Mercer, is pointing out that the Vancouver Olympic Committee is pushing contracts on musicians that include a gag order against saying anything bad at all about the Olympics.

The Olympics always has a "cultural component," a cultural Olympiad, and this year, to quote their puke-in-my-mouth inducing website, they have made a back-patting hullabaloo about including "cutting edge indie rock." And each and every "cutting edge" performer that has agreed to play has signed a contract that includes the above clause. A clause that states, in case you skimmed over it, that these artists must never say anything negative about an entity that will spend 900 million dollars on "security." An entity that has already infuriated anti-poverty and anti-homeless groups who accuse VANOC of not living up to its promise of providing affordable housing.

Most participating artists claim to be unaware of this clause.

Part of Mercer's complaint is that no one seems to be able to determine if the Olympics is a public or private entity, since censorship by a government entity would seem like a big no-no:

No one, including our courts, can figure out if it is a public or private entity. It seems to be public when it needs tax dollars (6 billion), but private whenever it is challenged...

And, sure, you can understand why the Vancouver Olympics might not want musicians it hires to say anything bad about them, but putting a contractual gag clause in there seems to suggest that the organization simply can't take any criticism. Mercer is also concerned about what this does for the musicians who signed these gag orders, often without realizing it:

When artists are not allowed to critique their government, or the governing agency that endows them with grants and funding, then what they are asking for is nothing more than propaganda.

Filed Under: bands, gag order, olympics, vancouver