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The ACLU Wants To Know Why Facebook Beat a 2018 Wiretap Case (bloomberg.com) 65

An anonymous reader quotes a report from Bloomberg: Facebook in 2018 beat back federal prosecutors seeking to wiretap its encrypted Messenger app. Now the American Civil Liberties Union is seeking to find out how. The entire proceeding was confidential, with only the result leaking to the press. Lawyers for the ACLU and the Washington Post on Tuesday asked a San Francisco-based federal court of appeals to unseal the judge's decision, arguing the public has a right to know how the law is being applied, particularly in the area of privacy. "It's already publicly known that the Justice Department can't wiretap Facebook's messaging services," Jennifer Granick, an attorney representing the ACLU, told the judges. "What isn't known is the reason why." The three judges didn't tip their hand at the hearing conducted by video conference and said they would rule at a later date. "The Facebook case stems from a federal investigation of members of the violent MS-13 criminal gang. Prosecutors tried to hold Facebook in contempt after the company refused to help investigators wiretap its Messenger app, but the judge ruled against them," adds Bloomberg. "If the decision is unsealed, other tech companies will likely try to use its reasoning to ward off similar government requests in the future."
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The ACLU Wants To Know Why Facebook Beat a 2018 Wiretap Case

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  • Go ask NSA (Score:4, Informative)

    by heson ( 915298 ) on Wednesday April 29, 2020 @08:04AM (#60003568) Journal
    Go ask NSA instead of us, and you get no visible paper trail, was probably the answer.
  • by lessSockMorePuppet ( 6778792 ) on Wednesday April 29, 2020 @08:05AM (#60003570) Homepage

    All the better to keep you free.

  • Precedence (Score:5, Insightful)

    by Merk42 ( 1906718 ) on Wednesday April 29, 2020 @08:14AM (#60003578)

    If the decision is unsealed, other tech companies will likely try to use its reasoning to ward off similar government requests in the future.

    Isn't that kinda one of the points of courts?

    • Re:Precedence (Score:4, Insightful)

      by lessSockMorePuppet ( 6778792 ) on Wednesday April 29, 2020 @08:16AM (#60003590) Homepage

      No, the point of the court is to keep the plebes down while convincing them they really have a say.

      Oh, and for replenishing the strategic slavepile.

      • Oh, and for replenishing the strategic slavepile.

        The 'slavepile' huh. Tell me more about this slave pile as I don't recall that one in my civics class. If only it were so that prisoners were forced to work like the rest of us.

        • Re:Precedence (Score:5, Informative)

          by Immerman ( 2627577 ) on Wednesday April 29, 2020 @09:53AM (#60003776)

          You must not have been paying attention then - it's explicitly permitted by the 13th Amendment, section 1, which banned other forms of slavery:

          Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

          Various forms of prison labor have been employed for a very long time - usually for "public service" work like cleanup or making license plates that the government would otherwise have to pay considerably more for, or leave undone. Which I heartily approve of. But there's also plenty of examples of corrupt wardens, etc. selling that labor to businesses for a tidy personal profit while distorting the labor market.

          I have my doubts that it's a major cause of incarceration though - it seems like by far the largest cause of unjust incarceration is heavy lobbying, and even outright corruption of judges, by the for-profit prison industry itself. Why risk bad PR with obvious slavery when you turn a handsome profit selling room and board (and phone service) at radically inflated prices?

          • Re:Precedence (Score:5, Informative)

            by ShanghaiBill ( 739463 ) on Wednesday April 29, 2020 @11:05AM (#60003912)

            it seems like by far the largest cause of unjust incarceration is heavy lobbying, and even outright corruption of judges, by the for-profit prison industry itself.

            For-profit prisons incarcerate about 8% of inmates. That number peaked in 2012 and has been declining since then.

            About half the states don't use private prisons at all, and the incarceration rate in those states has increased just as much as in states that do use private prisons. Many harsh sentencing laws were enacted in referendums financed by public prison guard unions.

            America's sky-high incarceration rate has little to do with private prisons.

        • That would be all the poor sods under Federal order to return to work or starve to death while making the owners immune to lawsuits for deaths caused while under Trump decree.
  • by ITRambo ( 1467509 ) on Wednesday April 29, 2020 @08:16AM (#60003586)
    Paid advertisers often swing deals to obtain Facebook user data that the public thinks is "theirs". It's possible, seeing as it was done in a back room, that the feds now get whatever they ask for. I presume this to be true, until proven otherwise, since Facebook has always been "evil".
  • by DavenH ( 1065780 ) on Wednesday April 29, 2020 @08:18AM (#60003594)

    "If the decision is unsealed, other tech companies will likely try to use its reasoning to ward off similar government requests in the future."

    That's a justifiable reason to withhold a decision? Isn't that one of the primary features of our legal framework, to enable future justice to proceed more fluently by being able to rely on precedent instead of trying everything from first principles every case (in which case, nobody gets justice)?

    If the judge sided with Facebook, other companies are owed the same even handed treatment under the same circumstances.

    • Re: Precedent (Score:5, Interesting)

      by NagrothAgain ( 4130865 ) on Wednesday April 29, 2020 @08:36AM (#60003628)
      Scenario: Government Agency sets up account as part of an undercover effort, with FB aware and under orders to not disclose that fact. Second Agency is unaware, and requests a "tap" and is told "no" with no reason given. FB gets sued, FB goes to Judge in a sealed court and discloses the information, judge sides with FB and seals the decision.

      Not saying this is what happened, but it would be one plausible explanation of why the judge's ruling would need to be kept secret.

    • I don't think that it's a criticism so much as the article explaining why this matters to both sides.
  • Just wait.... I'm betting the fucks at FarceBark will copyright their winning argument. If they decide to do so, I hereby claim all rights to the idea and demand compensation.
    • Too late, you owe me patent royalties on it.

    • Just wait.... I'm betting the fucks at FarceBark will copyright their winning argument. If they decide to do so, I hereby claim all rights to the idea and demand compensation.

      As good luck would have it sanity prevailed and this is not legal thanks to a recent Supreme Court ruling. The dissenting justices that were cool with the Law citations being behind a paywall were Ginsburg, Breyer, Thomas, and Alito. Citation: https://arstechnica.com/tech-p... [arstechnica.com]

  • 'Great country we've got.
  • by jellomizer ( 103300 ) on Wednesday April 29, 2020 @08:39AM (#60003634)

    I would expect the same reason why Apple doesn't unlock phones for the FBI.
    Mostly because they actually did their job and secured the system so I can't be easily monitored.

    Facebook doesn't have a good privacy track record. However, I haven't heard of any major hacks via messager.
    You can't build a government backdoor that will not be exploited by a random hacker.
    Both Facebook and the Government have too many people on the inside. So if some guy feels he was unjustly fired or quit. They might go rouge and take advantage of the back door they knew about. Also, hacker tends to poke around systems to see where there is an opening. Oh, why is there an SSH protocol on port 8361 on the server? or at least why isn't the firewall blocking it? Will just open the door for more investigation.

    Or the government request was just stupid. Asking for a wiretap on a network. Which didn't give them any useful information as the data is just encrypted.

  • by orzetto ( 545509 ) on Wednesday April 29, 2020 @09:09AM (#60003694)

    How on earth, and especially in a common-law country like the US, can a ruling by a judge be confidential?

    Given that the ruling can create a precedent, doesn't making in secret configure an obstruction of justice?

    • by sconeu ( 64226 ) on Wednesday April 29, 2020 @11:30AM (#60004010) Homepage Journal

      There is such a thing as an unpublished ruling. And it's not just in national security cases. It's any case where the court in question does not wish to create a precedent.

      An unpublished ruling may not be cited as precedent.

      https://en.wikipedia.org/wiki/Non-publication_of_legal_opinions_in_the_United_States [wikipedia.org]

    • by Anonymous Coward

      How on earth, and especially in a common-law country like the US, can a ruling by a judge be confidential?
      Given that the ruling can create a precedent, doesn't making in secret configure an obstruction of justice?

      Confidential rulings in civil cases are quite common, where there is no such thing as precedent.

      In criminal cases sealed rulings are supposed to be reserved for actual individual cases that would endanger national security if known, however this has long ago been twisted around to seemingly mean any case the government is involved in.
      But at least it is still true that no sealed case can ever be used as precedent.

      Related, there was a recent article on copyright protection to legal annotations.
      The case info i

  • Publicly known, says who, Facebook or DOJ? Is the code open source or has it had an independent code review?

  • If we knew we would abandon Facebook because they have a way for the feds to abuse the platform.

  • Not that I would know anything at all about how streaming companies record all of their content and self review any questionable or requested behaviors back to a local authority. There would never be any kind of extrajudicial agreements among say a city police force and the DOJ that often requests or receives any recorded streams from a local based company literally without making it a federal case.

  • There are huge advantages and disadvantages stemming from sharing our location data. Clearly if we don't stop it now, most likely we never will. So what should we do? I don't know. Note also: Anyone who thinks "It's not important, I don't do bad stuff" definitely needs to read "Three Felonies a Day" by Harvey A. Silverglate. In it he argues that now that we have permitted employees of federal agents to write rules that are effectively laws, any normal professional working in a career commits an average

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