back to article US spy court says internet firms can't report surveillance requests

The US Department of Justice has issued a formal response to requests by Google, Microsoft, and other internet companies to disclose more information about government requests for user data under the Foreign Intelligence Surveillance Act. And – surprise, surprise – it's firmly against the idea. "Although the Government has …

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      1. Bernard M. Orwell

        Re: err ,,,,

        I used to belabour this same argument about "unless" vs "until", but eventually someone who was actually a lawyer showed me that the case is "until" and always has been, dating right back to Roman law in essence and back to the 17th century in practice.

        The bottom line is that in law neither Unless or Until are used, but instead it is called "presumption of innocence" and fundamentally means that the state (or prosecuting power) must begin with the assumed innocence of an accused party.

        Even the universal charter of human rights says "until". So, whilst I might agree that "unless" would be more grammatically and linguistically accurate, it is not the case that using "until" is newspeak.

        http://en.wikipedia.org/wiki/Presumption_of_innocence

    1. davemcwish

      Re: err ,,,,

      IMHO RIPA (2000), Sec. 2 & Sec. 21 and Intelligence Services Act (1994) Sec. 5

  1. Someone Else Silver badge
    WTF?

    Now wait just one fscking minute here...

    How is it that the FISA court is writing a brief? A brief (at least on this side of the Pond) is a document of pleading, outlining the case that is to be made in front of a court of law. If indeed the FISA court is writing a brief instead of a decision, then we have the Alice-in-Wonderland scenario of the court pleading the case to itself...and I guess we kinda can get how that's gonna turn out.

    (Or maybe it's more of a Firesign Theater scenario...I recall the following snippet from "Don't Crush that Dwarf":

    Defendant: "I mean, I don't understand how you can be both the prosecutor and my defense attorney at the same time."

    George Leroy Tirebiter: "That's easy, son. This way, I can make sure you're prosecuted to the fullest extent of the law!"

    ...)

    1. Charles 9 Silver badge

      Re: Now wait just one fscking minute here...

      There's more than one court in the US. Courts of Appeal and the SCOTUS come to mind.

    2. James Micallef Silver badge

      Re: Now wait just one fscking minute here...

      "Firesign Theater scenario"

      or Black Adder IV, Speckled Jim episode

      "Where's that black cap, I'll be needing it..."

  2. panhead20

    The NSA and all the other alphabet agencies have completed destroyed the US cloud business and the internet. Time for the world to create a new network and leave these agencies to themselves.

    1. Anonymous Coward
      Anonymous Coward

      Nope

      The NSA and all the other alphabet agencies have completed destroyed the US cloud business and the internet.

      The Internet still works as intended, and you're making some people very happy by blaming the NSA.

      Let's be a bit more precise here, shall we? The NSA merely executes directives - like any other member of the US acronym soup. Actually, like any other government agency (for example, GCHQ). let's not forget that it's not just the NSA which is tasked with walking all over your Human Rights in the name of whatever imaginary friend or enemy du jour.

      The people you need to blame are those who set that tasking. That has been going on for many, many years, with Bush Jr. being probably the most aggresive abuser (but he was allowed to finish his term, starting wars on a disproven pretext is clearly less of an issue than choosing an intern who cannot get a stain out of a dress). Sadly, not only has Obama allowed this abuse to continue, he also extended some of the laws. Entertainingly, the companies that have grown fat on the back of this privacy erosion such as Google are now screaming the loudest. I guess they now have enough money in the bank.

      Privacy is like freedom - you will have to fight to keep it, because nobody is going to do it for you.

  3. Anonymous Coward
    Anonymous Coward

    Solution...

    Google just pops an SD card in the post to Wikidribble.

    To preempt the obvious repercussions, mark it "Fr0m 5n0wden."

    Done.

    I do not condone such an approach, it just seems feasible.

  4. Old Handle

    If any of these companies really wanted to get that information out, instead of asking for permission, it would be so much easier to leak it and blame Syrian hackers or whatever.

    1. Anonymous Coward
      Anonymous Coward

      Maybe there's a secret (Easter Egg) Google query that will 'accidentally' dump the core and return a complete list of the secret government requests.

      A misconfigured Ethernet switch, oops. Sorry...

      Google could tell them it's a legal release of info, based on a secret memo that the Google lawyers subsequently wrote. And no Mr. Government, you can't see the secret memo.

  5. Anonymous Coward
    Anonymous Coward

    File an appeal which surely must be heard by the Supreme court. The FISA court was setup to mimic the public courts. So a lawsuit against the FISA court and the DOJ being heard by the Supreme court could quickly lead to the end of the FISA court. You would still have things kept a secret due to national security reasons, but at least you don't have a secret court with no accountability running things.

    1. Duncan Macdonald Silver badge

      Would the Supreme Court hear the case

      With few exceptions, the US Supreme Court has the right to decline to hear appeals. Given the current makeup of the court, they may decide that the best approach (for them) is to decline to hear the case.

      (Only about 80 of the 10,000 or so appeals is heard - there is no right to have an appeal heard.)

      1. Anonymous Coward
        Anonymous Coward

        Re: Would the Supreme Court hear the case

        Quote: "With few exceptions, the US Supreme Court has the right to decline to hear appeals."

        I believe they already did. An appeal was filed by EFF on the first or second week of the Snowden scandal and the court promptly declined to hear it.

        1. Charles 9 Silver badge

          Re: Would the Supreme Court hear the case

          "I believe they already did. An appeal was filed by EFF on the first or second week of the Snowden scandal and the court promptly declined to hear it."

          So what if another firm makes the same appeal, and another and another. There's such a thing as persistence. Eventually the SCOTUS will decide hearing it and answering the constitutional question is preferable to having to refuse to hear appeal after appeal (once the question is answered, any further appeals to the same--now answered--question can be ignored).

  6. Mephistro
    Unhappy

    R.I.P. First Amendment

    "...does not give the companies the First Amendment right to disclose information that the Government has determined must remain classified"

    That paragraph really says it all. The First Amendment is dead, as the American Gov. has found a convenient way to silence any critic, any fact, any dissension, by labelling them as 'classified'. Giving a strict set of rules regarding what can and can't be classified would fix most of this problem, but there is too much to gain for the big fish with the current situation.

    1. Pirate Dave Silver badge
      Pirate

      Re: R.I.P. First Amendment

      That's the real kicker, isn't it? In its essence, the FISA and (un)Patriot Act, as well as the guilty accomplices in the Congress and the White House that have allowed this to continue, have recast the US as a surveillance state with absolutely no fucking end in sight. It's been 11+ years since we were attacked, and apparently the attack scared Uncle Sam soooo fundamentally that nothing must stop his efforts to avoid it again. Any arguments against this by us, the citizens, are stonewalled with this same "we can't tell you why we can't tell you why we have to spy on anyone at anytime but we're doing it to keep us all safe". Bullshit. For the past 80 years or so we've ALWAYS had folks who "want to do harm" to our country, but somehow we never had to turn into this current orwellian nightmare to avoid it. We didn't have to gag the press or the comms providers with threats of jailtime if they revealed what the oily bastards in the Government were doing with the ragged shreds of Liberty. But now it all has to be secret because it's "for our own good." Lady Justice has been raped and left for dead, lying on a soiled mattress stuffed with a shredded Constitution and lots of greenbacks.

      1. Yet Another Anonymous coward Silver badge

        Re: R.I.P. First Amendment

        Yes but "those people" were the Nazi's the Japanese empire and the USSR - they had no ability to do any harm to the government.

        Those people now are American citizens - they can do real harm to a government by not voting for them - these are the enemy you have to watch

  7. Denarius Silver badge
    Meh

    relax, it's a disintigrating country

    The only question is how long to go. As for company responses, follow the money. No other motivation exists in most of western civilisations ruins. The USSof A is at war within its own ruling classes using their $deity, money, as the weapon. Religious wars tend to be messy. As fellow commentards have noted briefly, here is a chance for the remnants of Europe and the Asia to grow their businesses. (if the Europeans can eliminate their career bureaucrats and downsize the Eurozone so it is not supporting unmanaged countries who resemble the merkins in spending habits.) One wonders if nimble companies will move data center sites out of the Americas as profits get threatened.

    <off topic> the gun nuts might learn something about armed societies, if they can read, by going thru a study on historical sword usage, titled "The Sword and the Centuries" Armed societies can be polite, but still lethal as the psychopaths have even fewer restraints. </off topic>

  8. Kevin McMurtrie Silver badge
    Mushroom

    We tried to call you but nobody answered for the past few days

    Release it anyway. The US Government is owned by big corporations so nothing bad is going to happen except for some lame lawsuits that Microsoft and Google can easily tarpit and smother. It will be the best PR that they could ever imagine. Besides, I expect that the courts will soon be overwhelmed with lawsuits related to this "shutdown" circus.

  9. T. F. M. Reader Silver badge

    Adding insult to injury

    The parts of the "brief" quoted in the article read as rather insulting mockery of the petitioners and of the public.

    "The public debate about surveillance does not give the companies the First Amendment right" - The public debate does not, but the Constitution does.

    "Such information would be invaluable to our adversaries" - So are little things like presumption of innocence, freedom of travel, restrictions on unreasonable search and seizure, and so on and so forth...

    "They can also use that information to engage in deceptive tactics or disinformation campaigns" - Spies and terrorists do engage in deceptive tactics, what a shock! Isn't truthful information the most important tool against "deceptive tactics" and particularly against "disinformation campaigns"?

    "But that implausible reading ignores the forest for the trees" - An appeal to "the big picture" is ironic in the context, IMHO: spies and terrorists are but a few individual trees in the huge forest, and the "forest" should not, REPEAT NOT, concern a properly functioning security agency. By "properly functioning" I mean, among other things, distinct from KGB or Stasi - for those the "forest" is an adversary.

    "It would permit damaging disclosures that would reveal sources and methods" - I'd say the cat is out of the bag by now - the paw that collects information from Google et al., anyway.

  10. amanfromMars 1 Silver badge

    Opening up a can of worms is manna from heaven for phishes

    Frankly, if left to myself -with the privacy that is my fundamental fucking human right- then I'm harmless. Consider me the enemy long enough and continue treating me as such; then the more likely it is to happen. Possibly it's some sort of terrorist-creation program, to justify the security theatre. Or possibly, if you think that you can blackmail every single citizen then you think that everyone will be compliant. Either plan works only up to a point. …. moiety Posted Wednesday 2nd October 2013 22:21 GMT

    After which point, and that point has been passed and surpassed, does planning and program applications suffer terrifying paralysing stasis and terrorising FUD reaction to systemic zeroday vulnerability exploit attacks in defence of self-destructive overlode ore collapse …. SMARTR Virtual Machine Intervention with Source Intelligence Supply Interruption.

    And the following simply complex methodology for presentation of what the future will bring for promotion to the paraphysicality of a media hosted and newsworthy virtual reality which is to be perceived and accepted by native undereducated masses as a heaven sent and/or devilishly cunning uncontrolled natural reality from streams of shared consciousness [and most usually documented for business and posterity and adjudgement of responsibility and/or just fabulous reward], is whenever not copyleft, a prior art copyrighted and a priori art phorming and certainly a base staple of NEUKlearer HyperRadioProActve IT Systems of Executive Admin in Global Operating Devices. …….

    "The bet is that greater reader involvement will attract a bigger audience, and more advertising dollars. The editors regularly mine the reader comments for story ideas and potential contributors." ….. http://www.newyorker.com/reporting/2013/10/07/131007fa_fact_auletta?currentPage=9

    IT has been ongoing since forever there was SMARTR IntelAIgents in Earthbound Human/Virtual/Machine Operator Systems Interfaces with Sublime InterNetworking Space ProgramMING for Mined Intelligence Networking Games that Guarantee MetaDataBase Information and Cosmic Source Supply Intelligence Generation, CyberIntelAIgent Security and Virtual Protection against and/or with Hostile Infection and Bug Infestation of SecuredD Operations Systems.

    And that New Yorker/Guardian expose, which be dated October 7 2013, …… ANNALS OF COMMUNICATIONS FREEDOM OF INFORMATION is a right ripping post modern Goth David versus Goliath read in the spirit of a Rover or Wizard rather than Dandy or Beano piece.

  11. Anonymous Coward
    Anonymous Coward

    So what?

    "Secret spy court says..."

    The secret spy court has no authority to say anything under the US constitution; indeed the constitution is there specifically to prevent secret spy courts having this power. The media should be laughing at these wannabe Nazi control freaks, not blandly reporting their ravings as if they were serious.

  12. Anonymous Coward
    Big Brother

    Depressing, but expected....

    The FISA court needs to come clean. How many orders are approved, and how many Americans are affected by each order that is approved.

    Also, they might consider denying a government request at least once a week....

  13. Benjol
    Happy

    Sooo, Microsoft mailed you twice with the same quote?

    How lazy of them...

  14. Number6

    You are not being monitored...

    So just give your subscribers a little flag that tells them all is well, and delete it if not. One is not allowed to tell people they are being monitored, but in the best traditions of US lawyers mangling the law, why not tell them they aren't being monitored until it's not possible to do so truthfully?

  15. marcyd

    Goodbye US cloud industry - and good riddance, sort your crap government out and then we can talk. My company is cancelling plans to roll out cloud MS products and I can see that pattern repeated in many, many other companies and government organisations.

  16. Nigel 11

    Install a Kill Switch?

    One could (maybe) pre-empt them by going to a lawyer and swearing an affidavit to the effect that one had NOT received any surveillance requests, and intends to repeat this process periodically unless it becomes illegal to do so. Then post the affidavit in a public place (if that's not automatic for sworn documents).

    If you do receive a surveillance request it becomes illegal to swear that affidavit (i.e. perjury).

    If they order you to commit a crime ... ISTR the fifth amemdment guarantees one's right not to be forced to incriminate onself, and making an untrue sworn statement is most definitely criminal.

    If they make it illegal to tell the truth on oath ... the entire legal system and rule of law collapses?

    I think this is to copyleft, as nuclear weapons are to bullets?

    1. Charles 9 Silver badge

      Re: Install a Kill Switch?

      ISTR the second amendment prevents the government from seizing legally-owned firearms, yet that happened quite a bit in Louisiana post-Katrina. At least one incident made the news. The justification? Martial law.

      I would think a similar 'threat to national' security that uses a different part of the Constitution might be used to override the Fifth Amendment on the grounds that, without it, the US is doomed, rendering the Fifth moot anyway.

  17. Anonymous Coward
    Anonymous Coward

    Since the NSA bulk collect pretty much everything it seems a bit of a moot point about people jumping services to avoid surveillance. With the capture of Silk Road's supposed founder & other recent events, even services like Tor don't seem safe from interception & decryption.

  18. john devoy

    Assume all Internet compromised

    Since the USA now considers itself above all international laws it would be safest for internet users to consider all ISPs etc to be compromised and take steps to encrypt anything they want to keep private. This will probably result in a new online arms race between the NSA and encryption writers.

    1. Anonymous Coward
      Anonymous Coward

      Re: Assume all Internet compromised

      Unless they just go with the nuclear option and outlaw any and all encryption. There are various approaches a truly dictatorial government could take that could reduce possible avenues of covert communication to a trickle: mangle media files to defeat all but the most robust stego (and those stegos can't carry much due to all the error correction), sanitize the whitespace in all textual comms to defeat hidden-space stego, etc. Just saying Big Brother is more real than most people realize. Truly covert communications of anything of size is such an art that it's requirements of perfection challenge the limits of the human condition.

  19. amanfromMars 1 Silver badge

    Advancing SMARTR IntelAIgent Systems Integration

    The NSA and all the other alphabet agencies have completed destroyed the US cloud business and the internet. Time for the world to create a new network and leave these agencies to themselves. …..panhead20 Posted Wednesday 2nd October 2013 22:43 GMT

    Hi, panhead20,

    The present situation is both far worse and much better and therefore somewhat new and significantly different from the most recent pasts, [which are all completely different in different parts/time zones of this world] and would bode well for the future because one needs to be more than just simply intelligent to macromanage microelectrical interindependent environments with positive signals and transmit-able [SMARTREnabled] signal receiver units ….. which you might like to consider and realise can be both virtual and real as humans ……. for it is probably and possibly most definitely certainly the case that the NSA and all the other alphabet agencies which be involved in any and all types of malicious and nefarious, self centred and inequitably advantageous and perversely lucrative and corrupt and oppressive shenanigans have completed destroyed the US cloud business and the internet for themselves [ which is the far worse present situation which they can enjoy and continue to play in whenever really stupidly led in intelligence fields that work with REST* in Play Pauses which deliver supplies of/for Core Ore Source CodeXSSXXXX for Novel Noble Event Calendaring/Hedged Derivative FuTuring]

    The much better situation is/are the new networks which are creating new worlds which leave those dumb agencies behind and to themselves with their failing and flailing and wailing partners facing a thick and impenetrable prison type wall.

    *REST ….. Representational State Transfer (REST) is an architectural style that abstracts the architectural elements within a distributed hypermedia system.[1] REST ignores the details of component implementation and protocol syntax in order to focus on the roles of components, the constraints upon their interaction with other components, and their interpretation of significant data elements.[2] REST has emerged as a predominant web API design model. …. http://en.wikipedia.org/wiki/Representational_state_transfer

    And we all know how quickly and how far things progress in fields which are unlocked and unbound by Moore's Law, don't you. And that it is only natural that there comes a time in that space whenever quantum leaps be made to accommodate the infinitely large into the incredibly small.

    The Future is Brighter when its IT Units are SMARTREnabled.:-)

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