Google, Apple, Mozilla, and the EFF Support Microsoft's Fight Against Gag Orders (betanews.com) 55
An anonymous Slashdot reader quotes BetaNews about new legal documents filed Friday:
Microsoft is fighting the US Justice Department in an attempt to quash a law that prevents companies informing customers that the government is requesting their data. The technology giant has the backing of other tech companies as well as media outlets. Amazon, Apple, Google, Fox News, Electronic Frontier Foundation and Mozilla are among those offering their support to Microsoft. The lawsuit says that blocking companies from keeping their customers informed is unconstitutional, and it comes at a time when tech companies in particular are keen to be as open and transparent as possible about government requests for data....
As EFF Senior Staff Attorney Lee Tien puts it: "Whether the government has a warrant to rifle through our mail, safety deposit boxes, or emails stored in the cloud, it must notify people about the searches. When electronic searches are done in secret, we lose our right to challenge the legality of law enforcement invasions of privacy. The Fourth Amendment doesn't allow that, and it's time for the government to step up and respect the Constitution."
Mozilla argues transparency "is critical to our vision of an open, trusted, secure web that places users in control of their experience online," in a blog post announcing that they'd joined a brief filed by Apple, Twilio, and Lithium Technologies.
And a statement from an EFF staff attorney argues that notifying the targets of searches "provides a free society with a crucial means of government accountability."
As EFF Senior Staff Attorney Lee Tien puts it: "Whether the government has a warrant to rifle through our mail, safety deposit boxes, or emails stored in the cloud, it must notify people about the searches. When electronic searches are done in secret, we lose our right to challenge the legality of law enforcement invasions of privacy. The Fourth Amendment doesn't allow that, and it's time for the government to step up and respect the Constitution."
Mozilla argues transparency "is critical to our vision of an open, trusted, secure web that places users in control of their experience online," in a blog post announcing that they'd joined a brief filed by Apple, Twilio, and Lithium Technologies.
And a statement from an EFF staff attorney argues that notifying the targets of searches "provides a free society with a crucial means of government accountability."
We're fucked (Score:4, Insightful)
Re:We're fucked (Score:4, Insightful)
We're not bad off because client-side encryption solves this. Corporations are fighting to keep plaintext storage appealing so *they* can rifle through your files.
We've been in trouble for some time (Score:5, Insightful)
From TFS:
Yes, these people are really late to the party. But at least they (finally) showed up.
The problem we have is that the congress, which takes an oath WRT making constitutionally compliant law, consistently ignores that oath. This is compounded by the fact that the courts, which are charged (by themselves, but that's a different problem of very long standing) with making sure that laws that are not compliant with the constitution are struck down, consistently do not do so.
It remains to be seen if this will be yet another instance of congress and the courts working together to do what they want, rather than what they are actually authorized to do. But I wouldn't get my hopes up.
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No. Article three does not provide article five powers in any sense. Period. SCOTUS arrogated that power to themselves in Marbury v. Madison, 5 U.S. 137 (1803) [wikipedia.org].
Article three specifies the cases in which SCOTUS has the judicial authority, which is: guilty, not guilty under the law, etc. Not "never mind this law, ignore congress." It specifies some specific areas where SCOTUS is to exercise this authority as a final matter: treaties, c
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When you violate a law, no matter how minor, and are caught doing that, there are usually consequences -- a fine, jail time, etc.
But, when "the government" violates "the highest law of the land", who is held accountable?
Courts have VERY limited power (Score:5, Interesting)
This is compounded by the fact that the courts, which are charged (by themselves, but that's a different problem of very long standing) with making sure that laws that are not compliant with the constitution are struck down, consistently do not do so.
The courts do so rarely, and avoid it if the law gives them a way to avoid it. For example, if it is possible to read a law in a way that would make it constitutional, they will do so (which may still restrict what the government can do with it.)
And there's a reason for that. Courts always walk a very fine line. The police do not work for them. The army does not work for them. Government officials, by and large, do not work for them. Criminal defendants do not work for them. The power of a court is directly dependent on whether people are willing to listen to it--very much like the old rule that a King can should NEVER make an order that will not be obeyed.
There are also more direct checks and balances. Congress can excuse laws from judicial review if it wants to, for example. The Constitution can also be changed to make a law constitutional--as has happened a number of times in United States History.
And, of course, the judgment of history will come down very heavily on certain decisions, in a way it almost never does on any Congress or even President--Dred Scott and Korematsu being the most obvious.
The Courts are very powerful, but they are also very cautious. (Anything you may have read about too many "activist judges" is primarily ignorant or intentionally misleading commentary aimed at manipulating voters.)
Re:Courts have VERY limited power (Score:4, Funny)
I thought 'activist judge' means 'judge who does not agree with me.'
Courts arrogated, and apply, unlimited power (Score:2)
No. It's not rare. It's not inconsequential, either.
In this context, SCOTUS has, over and over, gone directly against the constitution. Almost the entire bill of rights has been violated by congress and the courts (amendment three remains unsullied as far as I know); the outright inversion of the commerce clause is right there for anyone to see; blatantly ex post facto laws (both state and federal) have arisen and been confirmed; and in the case of Marbury v. Madison, 5 U.S. 137 (1803 [wikipedia.org]
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Congress can excuse laws from judicial review if it wants to, for example.
Congress can excuse laws from supreme court review. The laws are still reviewed by lower courts resulting in circuit court splits which cannot be reconciled by the supreme court.
Re:We're fucked (Score:4, Insightful)
That we have to rely on corporations to make this fight for us is a sign of how bad off we are.
Maybe so, but at least there are some things so abhorrent,
(Amazon, Apple, Google, Fox News, Electronic Frontier Foundation and Mozilla)
a wide range of us can still rally together against them.
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Maybe so, but at least there are some things so abhorrent,
Microsoft (Amazon, Apple, Google, Fox News, Electronic Frontier Foundation and Mozilla)
a wide range of us can still rally together against them.
That list is the modern definition of strange bedfellows. Never thought I'd see the day.
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Only a corporation like Microsoft, who receives the gag orders, has legal standing to challenge the process - they can demonstrate direct harm under the gag orders. Anyone who is the subject of such a search simply can't challenge the search because they have no idea it's going on. Even after the fact they probably won't know, because the FBI etc makes a point of parallel construction to make sure no victim can successfully challenge their search tactics.
Yes they have the might to stand up to the Feds and n
Re: We're fucked (Score:3)
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I don't think it really matters. The standard court remedy for an unlawful search and seizure is exclusion of evidence but that does not apply unless the government prosecutes you. So only presumed criminals have 4th amendment rights.
Does Mozilla not understand? (Score:5, Interesting)
That "open, trusted, secure web" is something the government does not want. Not just the US government but, well, I think all of them. It's critical for an authoritarian establishment to be able to suppress dissenting opinions and to investigate and prevent dissemination of information that puts their control at risk - from both foreign and domestic sources. A government only permits a "free society with a crucial means of government accountability" so far as it ensures that the populace is satisfied enough not to revolt en masse. The primary job of a government is to keep itself in power, and the rest takes a backseat.
...and there's your daily dose of libertarian whackjob/conspiracy theory rambling. Enjoy the rest of your Sunday.
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Corporations fighting for us or themselves? (Score:3)
On the surface, this seems like corporations fighting for a noble cause, personal privacy.
But why? You can make an argument that good privacy is good business, that customers will flock to a platform that provides privacy and security of data. Yet at the same time, vast numbers of people flock to platforms like Facebook and Google services that basically turn their privacy into a product to sell to others.
From a cost perspective, it would seem to be cheaper for corporations to just quietly going along with government surveillance requests. Lower legal costs and greater credibility with national security advocates would seem beneficial.
Sometimes I wonder if the privacy battle isn't a noble fight for my privacy, but just a naked power struggle between corporations and the government that only seems like it's about rights which might apply to the individual, but is really about corporations wanting to do their own thing. I'd wager libertarians would cast this as as a struggle against government intervention, but even if the private sector wins, are individuals actually winning anything?
Re:Corporations fighting for us or themselves? (Score:4, Insightful)
I have a few libertarian bones in my body, and my view on a win here for transparency is that it brings the government back a bit towards being compliant with the constitution; as the constitution is the only thing that authorizes its existence, all in all, this is a good thing.
Who can take most advantage of this specific bit of transparency, should it actually come about, isn't my primary concern. Government compliance with the constitution is. If something in the constitution isn't working out, article five is right there so the country can change it in a constitutionally compliant fashion. Fiat law, which this is an example of, and which is also SOP for congress and the courts these days, is, as far as I'm concerned, illegal on first principles and should never have been squeezed out of the ass of congress.
In the oligarchy that runs the show today, the constitution is a mostly ignored footnote. I don't see any real serious fixes coming; but any step in the right direction is still welcome in my book.
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If the corporations motives are not pure you would likely still welcome their assistance if their mission outcome is aligned with yours.
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A company can't ruin my life, the government can.
Never been hospitalized for a week, have you...
Government? Is that really the issue? (Score:3)
While in the past, I agree that people were correct to hold the government accountable for this kind of surveillance, it isn't the biggest issue today. Huge amounts of information are gathered by companies about everybody on the 'net, and shared between them without any limitations. You don't want the government to see your email? Ok, fine -- but Google's incredibly powerful AI team doesn't just see your email -- it *understands* your email. Google can, and does, use that knowledge in any number of ways; and ways that will get more diverse (and perverse?) in the future.
In the not too distant future, I believe that companies like Google and Facebook will become more politically powerful than 99% of the governments in the world. Facebook was going to launch a satellite today to allow everybody in Africa to use Facebook; although somehow the rocket that was going to launch that satellite blew up. My belief is that Facebook wants to get information about everybody on the planet, and will do whatever it takes to do that.
Governments? Come on, that's not the threat.
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Unlike the US government, Zuckerberg does not assert the right to drone-strike, rendition, civil forfeiture, SWAT or parallel construct your ass if he feels you are insufficiently patriotic.
Re: Government? Is that really the issue? (Score:5, Insightful)
How can you possibly defend such a terrible organization? Because they throw you some table scraps?
I think of the government we have today as just a corporation with a monopoly on the use of force and violence. The worst part is their services are openly for sale to any other corporation that needs them.
No, I don't trust Google or Facebook anymore than I do the government, but at least I'm not forced at the end of a gun to buy their products and follow their rules.
Respect? (Score:2)
FTS:
...When electronic searches are done in secret, we lose our right to challenge the legality of law enforcement invasions of privacy. The Fourth Amendment doesn't allow that, and it's time for the government to step up and respect the Constitution."
"Respect" is an attitude that can easily be faked, and it doesn't mean jack shit in this context. Given that the Constitution is, according to Wikipedia, "the supreme law of the United States of America", the government had bloody well better "step up and abide by the Constitution". I would expect a senior attorney for the EFF to realize the importance of this wording, and to speak more carefully on the matter. Too damned many people in the government regard the Constitution as merely a set of suggesti
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I think a very common way in which politicians regard the constitution is as a barrier to their specific agenda. They always do respect the constitution, in a general sense... but when it comes to their particular policy priority, that's another matter, and they set about the task of finding some legal way to weasel around the constitution. But they never regard this as weaseling around the constitution itsself - no true American would ever consider such a thing. No, they are just weaseling their way around
Somebody will be holding the bag. (Score:2)
I imagine the number of NSLs has grown high enough for all of them to think twice. When the sheer volume becomes public, all of these companies can now point to this and say they tried to reason with government, had just been following orders, and its not like they WANTED to betray you.
Its a timebomb, and they know it. This is proactive damage control.
But... (Score:2)
All the government has to do is find a clever wording to expand this to your online presence. Then, going with past precedence; there isn't going to be any issues or 4th amendment violat
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They can use the underhanded precedent approach, always.
1. Find some Scum. Real Scum. A producer of child abuse images is best - the more, the better. The important thing is that every judge and juror will hate them passionately.
2. Abuse whatever procedures you want.
3. Go to court. Go on, dare the court. Is the judge going to let this child abuser walk free just because some police officer, in his desperation to protect the children, rushed things and went in without a proper warrant? Of course not.
4. Ok, n