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Judge Orders Google To Comply With FBI's Warrantless NSL Requests 167

Posted by Soulskill
from the completely-unwarranted dept.
An anonymous reader writes "CNet reports that a U.S. District Court Judge has rejected Google's attempt to fight 19 National Security Letters, which are used by the FBI to gather information on users without a warrant. Quoting: 'The litigation taking place behind closed doors in Illston's courtroom — a closed-to-the-public hearing was held on May 10 — could set new ground rules curbing the FBI's warrantless access to information that Internet and other companies hold on behalf of their users. The FBI issued 192,499 of the demands from 2003 to 2006, and 97 percent of NSLs include a mandatory gag order. It wasn't a complete win for the Justice Department, however: Illston all but invited Google to try again, stressing that the company has only raised broad arguments, not ones "specific to the 19 NSLs at issue." She also reserved judgment on two of the 19 NSLs, saying she wanted the government to "provide further information" prior to making a decision.' This does not affect the Electronic Frontier Foundation's challenge to the constitutionality of the letters in the Ninth Circuit Court of Appeals."
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Judge Orders Google To Comply With FBI's Warrantless NSL Requests

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  • Hmm ... (Score:5, Funny)

    by gstoddart (321705) on Friday May 31, 2013 @12:46PM (#43875251) Homepage

    Putting the Constitution aside a moment ... oh, wait, they've already done that. Carry on citizen.

    • by Anonymous Coward

      Hey, watch where you put that thing! Somebody might trip over it and form a government!

    • Re: (Score:2, Insightful)

      by Anonymous Coward
      Whoa, you're brave even mentioning the constitution. Don't you know that puts you on federal watch lists, one of which has been found out: IRS.
    • Re:Hmm ... (Score:5, Insightful)

      by Jason Levine (196982) on Friday May 31, 2013 @01:39PM (#43876013)

      We're not putting the Constitution aside, we're putting it on display for all to see... in a cellar... without lights or stairs... in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying "Beware of the Leopard".

      But the point is that it's on display for all to see.

      • We're not putting the Constitution aside, we're putting it on display for all to see... in a cellar... without lights or stairs... in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying "Beware of the Leopard".

        But the point is that it's on display for all to see.

        For some reason, the advise "Don't Panic" isn't really helping me here... All I see in our future is yellow bulldozers.

      • Re:Hmm ... (Score:4, Insightful)

        by steelfood (895457) on Friday May 31, 2013 @05:26PM (#43878663)

        No. It's on display for all to see.

        In the paleoanthropology section of the Smithsonian.

  • by Anonymous Coward on Friday May 31, 2013 @12:48PM (#43875277)

    Looks like the judge doesn't like these things but can't do much about them, at least not in broad strokes.

    That itself is curious.

    Of course, that these things exist at all is pretty bad, and that the justice department is out of control is even worse.

    Then again, not being an American[tm], little I can do about it.

    • by Charliemopps (1157495) on Friday May 31, 2013 @02:06PM (#43876349)

      It's more like shes saying "I want to strike these down, but if I do it will be a big deal and I don't like the way you submitted your objections. So please resubmit them in the proper way so when I strike this down it'll really stick"

      or at least, that's what I'm hoping for.

      • Re: (Score:3, Insightful)

        by Anonymous Coward

        It's more like shes saying "I want to strike these down, but if I do it will be a big deal and I don't like the way you submitted your objections. So please resubmit them in the proper way so when I strike this down it'll really stick"

        or at least, that's what I'm hoping for.

        It sounds like Google was trying to nip the entire issue in the bud by arguing against NSLs as a concept ("broad strokes"). The judge has basically said "you can't do that, try pointing out problems with these specific NSLs and I'll block them but that's all you'll get out of me".

    • I may have posted this already but it's still relevant.

      http://www.smbc-comics.com/index.php?db=comics&id=2961#comic [smbc-comics.com].

  • by nanospook (521118) on Friday May 31, 2013 @12:51PM (#43875345)
    If their concerns are valid, why don't they simply get a warrent?
    • by gstoddart (321705) on Friday May 31, 2013 @12:55PM (#43875405) Homepage

      If their concerns are valid, why don't they simply get a warrent?

      Because a warrant has provisions for letting people know about them.

      NSLs are super duper top secret, and you can't tell anybody about them. As in, there's no real oversight of them, and as long as they keep them secret they can do anything they want to.

      Surely you don't expect an open and honest process? They wouldn't be looking at these people if they didn't already know they were terrorists ... what are you, some kind of hippy?

      • by intermodal (534361) on Friday May 31, 2013 @01:14PM (#43875707) Homepage Journal

        Yes, as a matter of fact. I am some kind of hippie. Are you going to investigate everyone who owns a Volkswagen now? I guess I shouldn't be giving them ideas...

        • by gstoddart (321705)

          Don't include me in that 'you' ... I don't own a Volkswagon, but I'm more hippie than not.

          I'm certainly not defending them.

      • Acordingto the GAO, 75â of them are filed inappropriate. But according to the FBI it's OK because they only use them when they NEED to - like when walking to the FAX machine would be too much effort.
      • It's a damn fucking shame too. But hey as long as they catch those terrorists and let me get back to my [insert sport here] and [insert mindless degrading reality show here], I'm all for it. If you have nothing to hide, what is to fear?
      • by Rich0 (548339)

        NSLs are super duper top secret, and you can't tell anybody about them.

        I don't get this. If providers/libraries/etc really wanted to get rid of NSLs they'd just have a message show up on on the webpage every time you login saying "we can confirm that we've never received an NSL asking for your data." Then one day you log in and the message changes "in your particular case we can neither confirm nor deny that we've received an NSL asking for your data." As far as I can tell this would fully comply with the letter of the law.

      • by nanospook (521118)
        I don't smoke dope, i shave my head,, nope not a hippie, probably one of those people in robes singing at airports about insects..
    • by Qzukk (229616)

      Their concerns aren't valid, they're just casting 200,000 letters out and hoping to get a fish.

    • by fustakrakich (1673220) on Friday May 31, 2013 @12:59PM (#43875483) Journal

      That's just it. For the most part their concerns aren't valid. The government just wants to go on a witch hunt, and won't tolerate any interference. This is not the the main problem. The main problem is that we won't do anything about it and will reelect the same people who put all of this into place, as we have always done.

      • by SuperTechnoNerd (964528) on Friday May 31, 2013 @01:14PM (#43875689)
        O here we go again.....
        "reelect the same people who put all of this into place"
        And we elect new people and they do the very same thing, despite what they touted on the campaign trail.. Voting is an illusion and voters are tools..
        Do you think the DOJ is going to give up this level of power because there are new faces in office? Wake up already..
        • So what if the 'new' people do the same thing. That's no excuse to reelect them again. You do it until you get it right. But those who wait for mass media to spoon feed who they should vote for can fuck off.

          • You do it until you get it right.

            We've been waiting for a LONG freaking time. Like 150 years.

            • We've been waiting for a LONG freaking time. Like 150 years.

              I have an idea - let's do the same thing over and over and expect different results. Who cares if our liberties are squashed and the wealthy and powerful just get more wealthy and powerful?

          • And therein lies the problem, my good sir. How do you get those who enjoy being spoon-fed the horeshit that comes from mainstream media to realize the error of their ways without them first (a) losing interest, or (b) sticking their head in the dirt and singing "la la la" -- in either case losing them before you get them to think critically? We're basically fucked, b/c that won't happen. The vast majority is willing to give up rights, freedoms, etc. as long as they're protected from "turrists" and can go
      • by intermodal (534361) on Friday May 31, 2013 @01:18PM (#43875769) Homepage Journal

        If there is one thing we need to challenge as a nation, it's the concept of government secrecy. The way it has encroached into areas that it has no business in (i.e. things which aren't like avoiding having Germany know about our radar/sonar/aircraft effective ranges/location of troops during World War II) is highly troubling. Today, even the remote possibility of something being vaguely and obtusely connected to something that might be mildly inconvenient gets turned into a "secret", a capability that has been shown not just to increase abuse of government power and constitution-breaking activity, but to lead to the defense of the indefensible.

      • by sqrt(2) (786011)

        The real problem is ultimately one of economics. A government agency, once created and staffed, is unlikely to ever be shuttered, as its employees and staff become dependent on it for their livelihood. Knowing that they'd be unable to find equal paying work in the private sector, they search with desperation for some task to give their apparatus the appearance of relevance. Finding very little credible national security threats (despite what the government would have you believe we are living in an era of p

        • Perhaps if people weren't required to work so much for their own livings we could reduce this compulsion to create problems where there are none simply to keep all the warm bodies occupied to some task.

          Creating problems to maintain employment is a problem of large bureaucracies, particularly in government. Removing the requirement to do significant work in order to live well creates worse problems, because most people (in increasing proportion as time advances) will just not work. Then, either the economy

          • by sqrt(2) (786011)

            If there's no productive work left for them to do, because all the jobs have either been automated away, become so specialized and intellectual as to be out of reach, or require talents that are valuable and unique to humans but untrainable (think art), then what is left to do to earn a living? You end up with slavery going that path too because the few people with the skills to have jobs and thus an income can pay next to nothing for vast ranks of personal servants. It will be a new feudalism. It'll end th

    • The original intent of NSLs was counter-espionage purposes during the Cold War. They wanted to track down Russian spies without tipping them off. Additionally, the information requested is supposed to be the sort that you don't need a warrant for - phone numbers dialed but not a transcript of the phone call, email addresses but not the email text, etc. There's no reasonable expectation of privacy on that stuff.

      Unfortunately, since the Patriot Act, they've started, shall we say, overstepping their bounds.

    • Especially with a judge already looking at the matter. That's actually WHY we have a constitutional requirement for warrants...

    • I believe your question can be answered with the same response my 9 year old gives when asked to clean up a mess he made: "That's HARD! It's going to take SOOOOOO LOOOONG! That's BORING! I don't wanna do that. I wanna do something I LIKE doing and I want to do that NOW!"

      • I believe your question can be answered with the same response my 9 year old gives when asked to clean up a mess he made: "That's HARD! It's going to take SOOOOOO LOOOONG! That's BORING! I don't wanna do that. I wanna do something I LIKE doing and I want to do that NOW!"

        Hmm... I foresee a job in Computer Science for your son ... Can he be bribed to overcome those objections with snacks?

  • WTF (Score:5, Insightful)

    by JDG1980 (2438906) on Friday May 31, 2013 @12:58PM (#43875453)

    How can the NSL process possibly be construed as anything other than a blatant violation of the Fourth Amendment? It's basic, black-letter law: warrants have to be issued by the judicial branch, not the cops themselves. Are the courts really going to allow the Fourth Amendment to be read out of the Constitution by a meaningless invocation of "national security"?

    • Re:WTF (Score:5, Insightful)

      by gstoddart (321705) on Friday May 31, 2013 @01:04PM (#43875573) Homepage

      How can the NSL process possibly be construed as anything other than a blatant violation of the Fourth Amendment?

      Executive Orders.

      It's basic, black-letter law: warrants have to be issued by the judicial branch, not the cops themselves

      But these aren't warrants, they're letters. Much more powerful, because they say so.

      Are the courts really going to allow the Fourth Amendment to be read out of the Constitution by a meaningless invocation of "national security"?

      Have you not been paying attention? The 4th amendment has been interpreted so narrowly that if it isn't actually 'paper' and on your person, it's not covered by the Constitution. And the whole border check thing within 100+ miles of any border. And free speech zones. And holding US citizens without trial. And assassinating citizens.

      They've been bypassing the Constitution for almost 12 years now, when and how they see fit.

      • by Hatta (162192)

        Executive Orders.

        Executive orders only apply to those in the employ of the executive. The rest of us are bound only by Congress.

        • Re: (Score:3, Insightful)

          by Anonymous Coward

          As much as I don't like it, that argument won't stop the FBI SWAT team from busting through your door at 3am.

      • Re:WTF (Score:4, Insightful)

        by thrich81 (1357561) on Friday May 31, 2013 @01:40PM (#43876023)

        For one example, thousands of Japanese-American citizens interred during WWII can tell you all about bypassing the Constitution. Everyone has their underpants in a wad now bemoaning the recent "shredding of the Constitution". Well it was no better in the past and if anything, the abuses were worse before -- try the Anti_Sedition laws of WWI or Lincoln's suspension of habeas corpus. So, yeah, these NSLs are a problem, but no worse than what came before and the Constitution is as strong as it ever has been, for what that is worth. Eternal vigilance is required to keep it that way. The previous abuses were eventually recognized for what they were.

      • The irony is that the group most likely to defend the 2nd Amendment left the barn-door open on the 1st and 4th amendment.

        So while we'll be able to retain our guns to "protect our Freedom from the tyranny of the Government" the guns are worthless as the Government will simply do as they please with you in secure private setting. No one will hear you scream as you fire off your 60-round 3D printed AR15. The Government will wait till your magazine is out and you'll never be heard from again.

        2nd Amendment pr
      • 1. Yeah, Barack Obama says he can kill any American if he does not know whether he poses a threat or not.

        2. I don't know if Barack Obama poses a threat to me.

        3. Sadly, instead of "Profit!" I rather see either a predator drone or Gitmo in my future.

      • by swillden (191260)

        They've been bypassing the Constitution for almost 12 years now, when and how they see fit.

        12 years? Try 75. Take a look at the New Deal provisions which were being struck down left and right until FDR threatened to pack the court with as many justices as necessary to get the majority he wanted.

        It's been nearly all downhill from there. There were isolated cases of executives ignoring the Constitution before (and getting away with it), but it wasn't until the 1930s that it really became systemic.

    • Are the courts really going to allow the Fourth Amendment to be read out of the Constitution by a meaningless invocation of "national security"?

      They've done so for decades. Why would you expect it to change now?

      • And the kicker is that the first formal assertion of the state secrets doctrine ( US v. Reynolds [wikipedia.org]) to prevent disclosure of evidence was proven to be a nothing but a sham when the "highly sensitive" documents in the case were finally declassified. If the executive was comfortable lying to the courts 60 years ago, who in their right mind would think that anything's changed now?
    • This insistence on sticking to the letter of the constitution smacks of Tea Partyism. Let's get to the root of the matter, let's give up on the constitution [nytimes.com]. It contains archaic, idiosyncratic and downright evil provisions. Moreover, it is worshipped by right-wingers and anything that they like is dodgy by definition.
      • by moeinvt (851793)

        I concur. Let's get rid of The Constitution. The federal government will then have no delegated powers and must be immediately dissolved. Good riddance.

      • This insistence on sticking to the letter of the constitution smacks of Tea Partyism.

        You say that as if it were a bad thing. And you cite the New York Times as if it did not have a century of treason in its past.

    • The information that's supposed to be requested in an NSL is not protected by the Fourth Amendment. It's supposed to be contentless info - you need a warrant to read someone's mail, but you don't need a warrant to read the unopened envelopes and record info about the return addresses, handwriting, stamp choice, etc. NSLs are supposed to get the electronic equivalent of that - phone numbers, email addresses, etc.

      I say supposed to, because the gag order on them makes it very hard to complain if the NSL over

    • The 4th has been fudged for years. First, they went after kids w/ baggy pants in NYC, and we said nothing...This is what happens when you let the precedents get set.

  • Terrorists Won (Score:4, Insightful)

    by Anonymous Coward on Friday May 31, 2013 @01:07PM (#43875611)
    So wait, non elected officials are making secret extra-legal requests that they also say we cant talk about 97% of? And they don't even have enough evidence to get a proper warrant for them? And they are targeting innocent until proven guilty American citizens and possibly political adversaries? And the requests will never re unsealed so we may never know if there was mischief at play or legitimate national security risks? And we have a secret closed door tribunal that not even Google can talk about?
  • by Hatta (162192) on Friday May 31, 2013 @01:17PM (#43875753) Journal

    If Google wishes to hold true to their motto, "Do No Evil", they can start by disobeying these orders. Compliance with unjust authority is evil.

    • by gstoddart (321705)

      If Google wishes to hold true to their motto, "Do No Evil", they can start by disobeying these orders.

      But, but ... they're fighting evil, so if Google doesn't help, they themselves become evil. You're not questioning the government are you? That would be sedition!

      end sarcasm.

    • If Google really wants to Do No Evil, they could stop collecting and retaining all the information that they do. If they didn't store your search terms, what videos you watched, where you went, who your friends are, what music you listen to, and what you bought, then they wouldn't be able to harm you by giving that information to the Government.

  • If I were a judge, what would stop me from issuing a letter from the bench admonishing the agencies for issuing NSLs, and telling them to pound sand? Wouldn't it have just as much validity under our Constitutional framework. In fact, nevermind that. I hereby decree, by the authority of Emperor Norton I of the United States (May God rest his soul), that the agency shall pay me a tribute in the form of 4 oz. silver, 0.999 or finer, to be delivered at the Pete's coffee, 2600 Broadway in Redwood City, Califo

  • by fustakrakich (1673220) on Friday May 31, 2013 @01:33PM (#43875937) Journal

    What are you complaining about? You knew that's what these people do, and yet you keep voting for them... WTF?!

  • Ridiculous (Score:5, Insightful)

    by moeinvt (851793) on Friday May 31, 2013 @01:48PM (#43876133)

    NSL's are supposed to be reserved for matters regarding terrorism or homeland security. IIRC, the original PATRIOT Act stated that an NSL must come directly from the AG or FBI director. That's obviously false if there were 190K of them done in a 3 year period. Can any random FBI employee write one of these? That's ridiculous, because one of the fundamental ideas of The Constitution is that cops do NOT get to write their own search warrants.

    The gag order provision is also a clear violation of the Right of free speech. The feds search your customer's data and you can't tell ANYONE, including your colleagues, let alone the affected customers? Under penalty of prosecution? Likewise ridiculous.

    • by fafalone (633739)
      Terrorism or homeland security is just the pretext. I suspect that NSLs are mostly used for non-violent drug offenses. This suspicion is of course based on the fact that one of the other post-9/11 powers, conducting searches and not telling the target until much later (if at all), has been revealed to be used for mostly for non-violent drug offenses and almost never for terrorism (the report I refer to, 65% were for drug cases and well under 1% for terrorism--5 of 763).

      Because drugs are bad, mmkay?
  • by TheCarp (96830) <sjc@nospAm.carpanet.net> on Friday May 31, 2013 @02:03PM (#43876301) Homepage

    I love the rsync.net "solution" to this problem, the Warrant Canary:

    http://www.rsync.net/resources/notices/canary.txt [rsync.net]

    Wonderful idea. Sure, we can't tell you if one of these secret letters is given to us, but, until we get one, we can tell you it hasn't come...with signed, date verifiable messages.

    Of course, only works for relatively small companies that are not getting requests as a matter of course.

  • "Illston Aspires for Higher Judicial Office."
  • by FilmedInNoir (1392323) on Friday May 31, 2013 @02:08PM (#43876377)
    Cause that's where some really embarrassing shit is stored about me.
  • I could argue that it's possible my wife could, at any moment, turn into a Zombie and murder the rest of my family at any moment. This is, in fact, only slightly less likely than my family being killed by Jihadists. So I could continue my argument and say that I need to have a loaded hand gun cocked, loaded and pointed at her temple at all times just in case she turns, I can put her down before she infects the rest of us. My wife would obviously disagree with my reasoning... the chances of me slipping and m

  • by JBMcB (73720) on Friday May 31, 2013 @02:55PM (#43877041)

    ... for everything that doesn't really matter.

  • by jcr (53032) <jcrNO@SPAMmac.com> on Friday May 31, 2013 @03:10PM (#43877239) Journal

    The fourth and fifth amendments are perfectly clear, and this so-called judge has just helped the government to pretend that they're not. The PATRIOT act is not a law at all, it is an act of usurpation.

    -jcr

    • Whatever do you mean, citizen? The fourth amendment is alive and well! You are secure from unreasonable search of your papers without a warrant from a judge, every bit the same today as in 1789! But these orders to search are letters, not warrants! Completely different. Kind of like a warrantless wiretap. Why would you need a warrant for a warrantless wiretap? That's why they're called warrantless, silly! "Oh look at me I need a horse to pull my horeless carriage!" You nut, with your kidding. Too much, too

      • by swillden (191260)

        It's particularly interesting to look at this when the 4th amendment is understood in its proper historical context.

        The fourth amendment doesn't say that warrants are required for searches, it says that (a) citizens should not be subject to unreasonable searches and (b) warrants may not be issued except on probable cause, issued by a judge, etc.

        When James Madison wrote that he and those around him didn't view warrants as a good thing, they viewed them with suspicion, as a way that people could legally b

  • The FBI issued 192,499 of the demands from 2003 to 2006, and 97 percent of NSLs include a mandatory gag order.

    The main reason that Stalin isn't proud and supportive today is that Beria choked him with a pillow. Allegedly. But I gather that the gag order rammed into Stalin's mouth may also have a lot to do with his inability to comment.

  • The FBI issued 192,499 of the demands from 2003 to 2006, and 97 percent of NSLs include a mandatory gag order. It

    A "Free" and "open" society?

    What is that cackling laughter I hear in the difference? Oh, it's the future. E.N.J.O.Y.

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