EFF Sues NSA, President Bush, and VP Cheney

VisualE writes "The Electronic Frontier Foundation (EFF) will file a lawsuit against the National Security Agency (NSA) and other government agencies today on behalf of AT&T customers to stop the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records. The five individual plaintiffs are also suing President George W. Bush, Vice President Dick Cheney, Cheney's chief of staff David Addington, former Attorney General and White House Counsel Alberto Gonzales and other individuals who ordered or participated in the warrantless domestic surveillance."

Almost Got It

I was going to get the first post, but the extra surveillance on my connection slowed me down.

How can you sue?

when you can't legally get at the evidence?

The plaintiff's need to prove they were harmed in some way. And proving they were harmed will require divulging state secrets.

Case dismissed.

Re:How can you sue?

Unfortunately you are probably at least a little right. Hopefully something will come out in discovery though. Often even the most secretive and closed off agencies have poor controls on what they will release during discovery, maybe the EFF gets lucky. Also, we already know what ATT and the NSA were doing, so it isn't exactly a state secret anymore. Although I wouldn't put it by this administration to argue that even though the illegal program is now public knowledge it is still a state secret because they say so.

Re:How can you sue?

If there was ever a story destined to get the "goodluckwiththat" tag, this one is it.

If we can't throw anyone in jail for torturing US citizens in blatant violation of all laws, morals, ethics, and good judgment, how can we possibly hold someone accountable for spying on our phonecalls?

Sure, we all know it's completely, obviously, 100% illegal for the government to spy on Americans' phonecalls without bothering to get warrants. But this country operates in a reality distortion field. We used to hold our politicians accountable to the law. But now anytime a politician does something illegal, prosecuting them is somehow "political" and some narrowminded partisans will leap to any politician's defense regardless of how much wrong they've done.

Prosecuting a politician is indeed political. But please punish them in a manner that's appropriate to the crime. Bill Clinton deserved a fine or probation for his perjury. George Bush deserves 25 years to life for ordering innocent people imprisoned and tortured without any due process.

Re:How can you sue?

I am not a lawyer, but some evidence is already a little glaring in this case:

People complain about government surveillance sponsored by telecoms
Telecoms say "Government made us do it!"
Everyone looks at government and says "You can't do that."
Government passes a law that says "Now we can, and we're adding in a provision to say you can't complain about when we did before we passed the law!"

I've said it before and I'll say it a thousand times if I must: The constitution was written by, for, and in behalf of terrorists, traitors, and criminals of their time. Possible terrorism is not an excuse to violate the constitution, as that is what it was written to protect. The illegal surveillance and retroactive immunity both violate the constitution.

This is like calling the police about a shooting, and when they get there, they find the dead body burned to ashes. When they ask "Why did you burn the body?" you say "Because if I burn the body, you can't arrest me for shooting him! You have no evidence!"

NSA?

NSA Press Conference: We have decided to take over the EFF in hopes that their participation with our goals will aid in furthering the United States' interests in National Security. We have assessed their allegations and decided that they were unwarranted and unfounded. Thank you for all your cooperation and we appreciate all the help from the leaders of the EFF.

EFF @ Gitmo: Fuck, I don't want a cock-meat sandwich...

woot!

The NSA is EFF'd.

FISA's telco immunities might actually help!

Recall that the telco immunities in the latest FISA passage only affect the telcos, not the government. If they're bold enough, the telcos may be able to help push this forward (since they're no longer able to be held liable, all this does it make their customers more comfortable by earning back their trust). Telcos likely have tons of documents they could publish (without invading customer privacy), teasing the courts with what must be loads more that could be secured with the appropriate warrants.

As to suing the government, I believe you actually have to petition for the right to sue ... which may be problematic when there's such obvious intent to keep this under wraps. I'm sticking with my pessimistic intuition that this won't come to light until all the relevant parties have retired or been removed from office (I hope I'm wrong ... heck, there's just barely enough time for an impeachment process, too!). Since this hurdle appears to have already been passed, there must be something resembling support -- hark, did the Dems grow a backbone?

Re:FISA's telco immunities might actually help!

The U.S. government tends to be one of the telco's largest customers. Attacking one of your largest customers is usually not a good idea, and is unlikely to happen. I think they know I doubt it will gain them even a perceptible blip in good will with their home and small business customers. Home and small business customers mostly care how much their phone bills are and what kind of service they get for it.

If you recall Qwest pushed backed on participating in this surveillance program when it first started because of their concerns about its legality. Shortly there after the suddenly lost a huge classified telecommunications deal with the government, it caused a huge miss in their quarterly results and they couldn't talk about why because it was classified, their CEO was accused of misleading shareholders and eventually ended up in Federal prison. He may have been doing so fishy stuff for which he deserved some punishment but there was a huge signal sent from the Bush administration about playing ball.

Morale of the story is trying to fuck with the Federal government, especially the Bush administration, was and probably still is incredibly dangerous. They are, after all, people who think its OK to thrown black hoods over peoples heads and send them away to be tortured.

I doubt they will retaliate against the EFF like they did Qwest because they will probably opt to just stone wall the case and will probably succeed. Maybe a President Obama will be different but I doubt he will want all the bad people in the Bush administration perp walked because it sets a dangerous precedent for when he leaves office and a Republican President takes over.

DONUT???

If you were ever planning to donate to the EFF at all, now might be a good time.

http://www.eff.org/support/ [eff.org]

Re:Big

The EFF does not of course always win, but it does frequently and has effected quite a bit of change to bad law as a result.

http://www.eff.org/victories/ [eff.org]

Outlines just some of the major victories.

The EFF also sometimes engages in cases where probability of victory is lower, but we judge that the case must be fought, and that public benefit will come just from the fighting, and the hearing of evidence in open court. Of course we hope to win, but we also know that even if we don't win, there are other upsides.

This case (and the case vs. AT&T) get much of their benefit simply by having a court examine this illegal wiretapping program. Part of our message is that this program has not been subject to review by the courts, and that in of itself is bad.

The ACLU won early victory but fell down due to standing. We have well established evidence of massive interception of traffic. While some might think there is only an illegal wiretap if the government listens to you, it is unlawful for them to even intercept your communications, even if they toss them away later. Warrants must name specific targets, and it is the job of phone companies to isolate the traffic of targets and hand it over under lawful warrants. The government does not get to just intercept all the traffic and pull out what it desires.

Re:Big

That's just what they want you to think.

Either way, they're pretty tenacious and well known, they may even have as much or more public recognition by now than the ACLU.

Even if they lose this one (or don't entirely get their case), they'll still win. They've backed up some significant cases and have become well known for it, and this will only make them more popular.

In some eyes, the EFF, for what they stand for, may never be wrong, and they could quickly turn into a religion of legal sorts. Especially considering that the targets, the "general unpopular undoers of society", have already had sights set on them many times and even though the law assumes they're in the right or not so in the wrong, they're pariahs and nothing they can do can prove to the people they're not bad guys.

There's a lot of 'little guys' that have gotten hurt by the unfairness of the law when they're weighed against corporations, and it's really building up. The EFF could be one of many outlets for a meta-ideology when people really do start fighting back.

Anyways, I'm just saying this so I can say "Holy shit, I was right?!" later if it really turns out that way.

Re:Big

They don't have anywhere near the recognition outside of the IT industry that the ACLU has.

Most of what you wrote about the EFF applies to the ACLU, also.

If they are redundantly making a case, they ought to be careful about it - the ACLU and EFF should certainly be cooperative towards each other, IMO.

Re:Big

It'll be SUNDAY SUNDAY SUNDAY! Check out this tag team battle of the century as the EFF and the ACLU take on the NSA and The Bush Administration in this BATTLE TO THE DEATHHHHHHHHH! EXTREME action! Blood, violence, lawyers TO THE MAX!

ONLY ON PAY PER VIEW!

Re:Big

"ONLY ON PAY PER VIEW!"

Nah. I'll just wait until someone puts up the DivX torrent on Pirate Bay.

Re:Big

They don't have anywhere near the recognition outside of the IT industry that the ACLU has.

No they don't, but have they started to get a reputation in the legal industry? The reason I ask (and hope that somebody can answer) is because the ACLU has become publicly known more because of how long it's been around than its recent cases. I imagine that the EFF could be in the position that the ACLU was in a few decades ago. I imagine that the legal professionals, who watch cases more closely and see patterns much sooner than the public would, might see the EFF as an up and coming organization.

Either way, I sincerely hope that they win this case. Our civil liberties have been eroded enough since 9/11, thank you very much, and I for one wouldn't mind a few legal cases putting the fear of constitutional restrictions into the heart of our next president.

Re:Big

Either way, they're pretty tenacious and well known, they may even have as much or more public recognition by now than the ACLU.

Hint: Go OUTSIDE into the light son. Outside... Just once in a while. Ask people (real people, not people on /. or IRC) if they even know who the EFF is. Ask them if they know who the ACLU is. Seeing as you'll be doing this you might want to bring along a flyer or someting so you can explain what Linux is, what open source is, and then explain what the word freedom means to those people. It'll be good for you. You might even get a tan.

Re:Big

Oh look, someone who reads Andrew Orlowski articles. There are two things you should be aware of when you read one of his pieces:

1. He almost never checks his 'facts'.
2. You are wasting time that could be more productively spent banging your head against your desk.

There's a nice long list of cases they won [eff.org], but somehow the fact that Orlowski cited half a dozen where they'd lost (including at least one where they'd dropped the case because they'd won a victory in a related case that made it irrelevant) started the meme that they always lose.

Re:Big

First of all, that nice long list of cases does not disprove my assertion, that they lost plenty of cases.

Don't be throwin stones from your glass house - your assertion of the unnumbered 'plenty' aint shit without a cite.
At least he did better in one post than you have in two.

That list doesn't have their losses I notice.

Ah, so it is up to him to prove your point too? No wonder lawyers have such a piss poor rep.

Re:Big

This time, they have much more documentation. All of these smaller suits, and some bigger ones, were basically just a way to compel the needed evidence to bring a strong case.

Re:Big [waste of time]

However, the Constitution specifically forbids Congress from writing any ex-post-facto laws, which includes retroactive immunity.

No, it does not include retroactive immunity.

These are the ex post facto laws, according to the Supreme Court in Calder v. Bull :

-----
1st. Every law that makes an action , done before the passing of the law, and which was innocent when done, criminal; and punishes such action.

2nd. Every law that aggravates a crime, or makes it greater than it was, when committed.

3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.

4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.
----
A law making something NOT a crime when it was a crime when committed is not covered.

(incidentally, the Supreme Court has pretty much chipped the 3rd one away to nothing since Calder v. Bull)

Re:Big [waste of time]

You are incorrect. Calder V. Bull deals with Article 1 Section 10 which deals with STATES. Article 1 Section 9 deals with CONGRESS of the US.

Of course that doesn't stop any court, including the supreme from changing the meaning of words in the constitution.

Don't you remember when Scalia recently went on ABC [bbc.co.uk] saying that not all torture is cruel and unusual punishment?

If you don't think that giving retroactive immunity to corporations who spied on American citizens wasn't what the framers had in mind when they wrote in Article 1 Section 9, "No bill of attainder or ex post facto Law shall be passed." you must be smoking something.

Please go read what Thomas Jefferson had to say about the judicial branch and maybe you'll be able to get a somewhat clearer picture.

Also remember that the supreme court has ruled that how much wheat you can grow on your own land is "interstate commerce" and can be regulated by congress.
http://en.wikipedia.org/wiki/Wickard_v._Filburn [wikipedia.org]

Re:Big

There is a suggestion in what you write that "reverse engineering ... is infringement" because we lost the case. In cases such as these, there was a plaintiff declaring this to be so. This seems to imply that the defendants might have won had we not gotten involved, which is surely not not true. We may have wasted resources, of course.

But I hope nobody thinks you can win them all. If you win them all, you are in fact not at the edge, and we try to only take cases on the edge. In spite of that, we win a lot.

Re:Big

Forgot to add: The Blizzard case did not rule that reverse engineering is infringement. Rather, it hinged on whether they could enforce a "no reverse engineering" cause in the click-to-agree EULA on the games. We're going to see a lot more cases in the future (not just involving EFF) about what clauses in click-to-agree contracts are valid, I think I can predict.

Re:It will be interesting

Easy, they just won't do anything about it, no one will report it, no one will care, and life will continue as it always does.

We will never hear of the story again, mark my words.