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Could Slashdot (Or Other Private Entity) Sue a Spy Agency Like GCHQ Or NSA?

Posted by timothy on from the oh-you-meant-sue-and-actually-win? dept.

Nerval's Lobster writes "When the GCHQ agency (Britain's equivalent of the National Security Agency) reportedly decided to infiltrate the IT network of Belgian telecommunications firm Belgacom, it relied on a sophisticated version of a man-in-the-middle attack, in which it directed its targets' computers to fake, malware-riddled versions of Slashdot and LinkedIn. If the attack could be proven without a doubt, would the GCHQ—or any similar spy agency engaging in the same sort of behavior—be liable for violating trademarks or copyrights, since a key part of its attack would necessitate the appropriation of intellectual property such as logos and content? We asked someone from the Electronic Frontier Foundation about that, and received a somewhat dispiriting answer. "From a trademark perspective, if a company uses another company's marks/logos to deceive, there may be a trademark claim," said Corynne McSherry, the EFF's Intellectual Property Director. "But it's complicated a bit by two problems: (1) the fact that while there may be confusion, it's not necessarily related to the actual purchase of any goods and services; and (2) multiple TM laws are in play here—for example UK trademark law may have different exceptions and limitations." McSherry also addressed other issues, including governments' doctrine of sovereign immunity."

20 of 188 comments (clear)

  1. Sue them... by Anonymous Coward · · Score: 5, Insightful

    And magically drugs appear inside your house plus pictures of you fondling kids.

    1. Re:Sue them... by ciderbrew · · Score: 5, Insightful

      if you're lucky. the other choice being ending up dead inside a padlocked suitcase which you locked yourself into. Your death will be an Accident!

    2. Re:Sue them... by Anonymous Coward · · Score: 5, Informative

      FYI ciderbrew is referring to an actual event, albeit speculatively.

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

    3. Re:Sue them... by Joining+Yet+Again · · Score: 5, Informative

      Well, you have a lot of faith in British law enforcement and security.

      No, you'll suddenly decide to kill yourself just before you're going to present important information, like David Kelly. Or you'll commit a minor infraction like jumping a ticket barrier and be shot a few times for "oh he was totally about to set off a bomb", a la Jean Charles de Menezes. Or you'll have a heart attack after being lightly handled by a police officer during a protest, like Ian Tomlinson.

    4. Re:Sue them... by NettiWelho · · Score: 3
      Since this thread seems to be riddled with the misconception that sovereign immunity grants government blanket immunity to liability for wrongdoing, I feel the need to insert this in a position with better visibility.

      The United States has waived sovereign immunity to a limited extent, mainly through the Federal Tort Claims Act, which waives the immunity if a tortious act of a federal employee causes damage

      Intentional torts
      Torts against the person include assault, battery, false imprisonment, intentional infliction of emotional distress, and fraud, although the latter is also an economic tort.
      Property torts involve any intentional interference with the property rights of the claimant (plaintiff). Those commonly recognized include trespass to land, trespass to chattels (personal property), and conversion.

      Further, in the article talking about the specific Federal Tort Claims Act...

      However, the FTCA does not exempt intentional torts for "investigative or law enforcement officers," allowing aggrieved individuals to bring lawsuits

      Attacking a civilian owned computer system is definitely violation of property rights.

      Also, the action they are taking is directly forbidden in the United States constitution.

      Fourth Amendment to the United States Constitution
      ...
      The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights that prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause.
      ...
      One threshold question in Fourth Amendment jurisprudence is whether a "search" has occurred. Initial Fourth Amendment case law hinged on a citizen's property rights—that is, when the government physically intrudes on "persons, houses, papers, or effects" for the purpose of obtaining information, a "search" within the original meaning of the Fourth Amendment has occurred.
      ...
      The Fourth Amendment proscribes unreasonable seizure of any person, person's home (including its curtilage) or personal property without a warrant. A seizure of property occurs when there is "some meaningful interference with an individual's possessory interests in that property"

      I'd argue that inserting malware is again, "meaningful interference with an individual's possessory interests in that property".

    5. Re:Sue them... by Decker-Mage · · Score: 3, Interesting

      tl;dr

      Sovereign immunity is a real bitch.

      Got that one right. I'm a disabled vet as a direct result of a shipyard accident in the US Navy. Both the Navy and VA really fucked up by not following up on neurological problems that developed over the next few years. Bone spurs were forming in the cervical (neck) vertabrae, slicing through the spinal cord. What should of happened is that when they found the symptoms were not a result of damage outside the spine, they should have done an MRI. Oops. The Veteran's Administration also failed to follow up for an additional seven years over the Navy's four before doing the MRI. Then they waited for another four years before telling me that I'm inoperable and terminal. Oops! I have a team of doctors, now, at the VA who can't help me on the pain issues or much of anything else other than trying to keep me from killing myself as I have done, unsatisfactorily, over a dozen times. Whatever.

      The actual point of the post is that my medical team keep pushing me to sue the US Navy and the VA for malpractice (and the US Navy for wrongful termination ;-0). Yeah, like that's gonna fly. You have to get a Federal Judge's permission by finding an overwhelming need for justice in your case. Hell, you also need a lawyer who's willing to go out on a limb as, in my case, what disability I do get just allows a hand to mouth existence. No room for legal fees there. I get just enough ($1K) to stay off SSI and that's after a twenty-three year wait.

      Now, I do like to keep track of these things, but the last lawsuit that did go through, well this cardiac surgeon killed 60+ (65?) patients. A bunch of people kept going before a judge to certify and finally, FINALLY, after killing all those people, they're allowed to sue for malpractice. Fortunately,.I'm not to the point of really blaming anybody. I should have pushed for other tests beyond the electro-myelogram [it tickled, which is NOT a good thing for an EMG, in case you've never had one. Almost every patient screams.] For all our experience in delivering destruction, it's funny that you hardly ever going postal at the VA facilities or the courthouse. Lucky, I guess.

      --
      "[I]t is a wise man who admits the limits of his knowledge or skill, and that pretending either causes harm." --Terry Go
    6. Re:Sue them... by anagama · · Score: 3, Informative

      Yeah whatever. How about the State Secrets Doctrine which really took hold after the widows of some RCA engineers sued the USAF after the plane their husbands were on crashed (they were testing some equipment). The widows wanted the crash report, the USAF said it contained secrets. No judge, not even any on the Supreme Court, ever checked to see if the USAF was flat out lying. Which they were as it turns out. 40 years later when the accident report was declassified, it contained no national security level secrets. It did contain information that the USAF neglected to maintain the plane properly and neglected to install heat shields in the engines -- a manufacturer recommended modification to prevent engine fires. The plane that killed the geeks on board suffered engine fires exactly like those the modification was designed to prevent.

      So yeah, the Feds have waived SI to some extent, but that won't stop them from lying to everyone and anyone, even the Supreme Court, in order to cover up malfeasance and negligence.

      http://www.dcbar.org/for_lawyers/resources/publications/washington_lawyer/october_2008/books.cfm

      The State Secrets Doctrine has been used by the Feds to get away with all kinds of crap, most recently of course, with a focus telecommunications masspionage, preventing people who were innocent and tortured from seeking redress, and so forth. As for the 4th Amendment -- it's a joke because of the Third Party Doctrine which equates "reasonable expectation of privacy" to "complete and total secrecy." Anything that is not absolutely secret has no 4th Amendment protection, and if you think about, barely anything in modern life does not include third parties in some way. The whole fucking post 9/11 debacle has the Feds using the State Secrets Doctrine and the Third Party Doctrine as a bulldozer to burry every American ideal we've pretended to revere for centuries.

      So again, whatever. If a Fed. agent dings your bumper, the Feds will pay out, but the sovereign immunity waiver is only for such trivial things. If it matters, the Feds will fuck you over till Christmas, and then kick you in the teeth before taking a crap on you.

      --
      What changed under Obama? Nothing Good
  2. No. by SenorPez · · Score: 4, Insightful

    Laws only apply to little people. Go back to shoveling dirt you peasants, and leave your governmental overlords in peace.

    1. Re:No. by f3rret · · Score: 4, Informative

      Surely, there is a very simple method to do something about it.

      When the state oversteps its boundary, it is time to replace the state. If not in orderly fashion, then with force. It is called revolution.

      Welcome to the NSA watch list.

      --
      Admit nothing. Deny Everything. Make Counter-accusations.
  3. A trademark claim might not be the best by SirGarlon · · Score: 5, Insightful

    I really think you will get a better answer from your attorney than you will get from Slashdot. But for the sake of discussion -- why is a trademark claim the first thing that comes to mind? To my non-lawyer mind, impersonating someone's business sounds like fraud, which I believe is actionable in civil court.

    --
    [Sir Garlon] is the marvellest knight that is now living, for he destroyeth many good knights, for he goeth invisible.
    1. Re:A trademark claim might not be the best by ad5mqesj · · Score: 5, Informative

      BUT - governments are special; essentially you can't sue them unless they agree to allow it. Neither US nor UK governments would allow such a suit to proceed, even if all the facts were publicly known, they would invoke "state secrets" and quash any civil action. The only hope of proceeding in court is to show they violated a law, and even then you'll have a long drawn out battle to prove that you have standing to sue, and to find a judge who would allow the suit to proceed. Lots of people with much stronger cases demonstrating actual harm have had, so far, little or no success in getting the NSA into court and I doubt very much that the UK government is any less skilled at this sort of manipulation of the courts. In then end I doubt anything short of a revolution, or at least the credible threat of one will get any noticeable reform. There are a handful of politicians on both sides of the Atlantic trying to reign these agencies in, sadly they are a minority and unlikely to succeed unless a large wave of public outrage forces a majority of the political class to care about this issue. The best hope is that brave whistle blowers like Snowden will continue to expose the shenanigans of these agencies and that the reporting will be honest enough to get the public to wake up to the profound dangers they pose to all our freedom.

    2. Re:A trademark claim might not be the best by sanchom · · Score: 3, Interesting

      Trademark infringment is not a subset of fraud. Trademark law came out of the tort of passing off, which originally was a descendant of fraud/deceit, but they're now different in that fraud happens between the lier and the listener; trademark infringement happens between the lier and the owner of the mark that they co-opt. It isn't a subset-superset relationship anymore.

    3. Re:A trademark claim might not be the best by TheCarp · · Score: 3, Interesting

      Funny you would bring that up because, the opposite is actually a great example of the point in question.

      http://barkgrowlbite.blogspot.com/2012/07/dea-stole-big-semi-in-sting-operation.html

      thought his Truck 793 - a big red Kenworth T600 semi â" was being repaired in Houston. Unknown to Craig Patty, the owner of the $90,000 rig, the DEA was using it to transport a load of marijuana in a sting operation.

      The DEA had paid Lawrence Chapa, one of Pattyâ(TM)s drivers, to haul a load of marijuana from the Mexican border

      So far so good. DEA bribed one of his own drivers to steal the truck from his employer to be used in the operation..... long story short, truck gets shot up, driver killed. Insurance company and DEA both refuse to pay for any damages.

      Now this isn't over, I assume there will be court battles but, his case is different. This case involves physical evidence and facts that can't be just denied out of hand....and they are still refusing to do anything and making him sue. This is how they act when caught red handed and unable to deny the facts.... there is no chance of getting anything from a secretive org that can declare the facts national security interests.

      --
      "I opened my eyes, and everything went dark again"
    4. Re:A trademark claim might not be the best by F.Ultra · · Score: 3, Funny

      I don't see what you did there.

  4. You know that means suing a foreign government? by Noryungi · · Score: 5, Interesting

    Hmmm... "Good luck with that" is the first answer that comes to mind.

    On the other hand, one potential legal solution who go something like this:

    - Get Belgacom on your side ;
    - Find the person(s) at Belgacom who have been infected through the fake /. site by GCHQ ;
    - Sue GCHQ and the UK government in Belgian and UK courts - yes, I think there are some jurisdictions that will hear cases even if their protagonists are out-of-country and Belgium may be one (some Rwanda genocide cases were tried in Belgium if I remember correctly) ;
    - Get the case thrown out of court repeatedly all the way to the local equivalent of the Supreme Court ;
    - Appeal all the way to the European Court of Human Rights (which is, according to the EU Charter, one step above local Supreme Court);
    - Profit! Well, only if the European Court of Human Rights decide that, yes, there is a clear violation of due process and invasion of privacy, etc... Which, in that particular case, seems pretty much open-and-shut at this point.

    In other words: this is definitely a case the European EFF should take on immediately, on behalf of /. and the person (and corporations! Belgacom was, after all, the subjectaffected - it will take years and stupendous amounts of money, but, heck that's why Kickstarter is for (I would send money immediately to such a project!).

    Try suing in different jurisdictions at the same time - the French governement - in that particular case, is begging for someone to come and kick its butt, Germany also sounds like a prime candidate, as well as some of the Scandinavian countries.

    The interesting side of this case is that it could result in a binding ECHR court decision that would force all European governements - not just the UK - to rein in and place GCHQ and others (DGSE anyone?). It would probably take years and a lot more money and a lot more suing to make them all apply this ruliong in their respective jurisdictions, but it would be money well spent (IMHO).

    Please don't quote me on this - IANAL even though I play one on /. ;-)

    --
    The right to offend is far more important than the right not to be offended. (Rowan Atkinson)
  5. Re:THIS WOULDN'T HAPPEN WITH A HOSTS FILE! by Anonymous Coward · · Score: 3, Insightful

    LOL, hosts file wouldn't save you, the national-intelligence-level threats are tapping straight into the wire so you continue to access the same IP address everyone else does, but only in your case does it go to their server.

  6. Re:Of Course by whoever57 · · Score: 4, Informative

    In the United States, anybody can sue anybody else for anything, regardless of merit, and have a reasonable chance of winning. It only takes time and money.

    Not if the second "anybody" is the government. Unless the government consents to being sued (in othe words, there is a law allowing citzens to sue the government over that particular injury) the government will merely plead sovereign immunity and the suit will the thrown out of court.

    --
    The real "Libtards" are the Libertarians!
  7. Functionally, No. by argStyopa · · Score: 5, Informative

    "In the United States, the federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit. The United States has waived sovereign immunity to a limited extent, mainly through the Federal Tort Claims Act, which waives the immunity if a tortious act of a federal employee causes damage, and the Tucker Act, which waives the immunity over claims arising out of contracts to which the federal government is a party."
    (http://en.wikipedia.org/wiki/Sovereign_immunity#United_States)\

    Did you REALLY think there would be another answer?

    --
    -Styopa
    1. Re:Functionally, No. by bigHairyDog · · Score: 4, Informative

      Except that GCHQ is a UK government organisation, and in the UK Sovereign Immunity only protects the monarchy. People can and do sue the government for not adhering to the law, in a process called judicial review: http://en.wikipedia.org/wiki/Judicial_review_in_English_law That said, I don't think any lawsuit would be successful.

      --

      foo mane padme hum

  8. Like trying to sue toe mafia by FriendlyLurker · · Score: 5, Interesting

    I think it is obvious to all following the Snowden revelations that these spy agencies do not play by the law, anyones law - as can be seen with all the data sharing agreements to circumvent their respective nations laws. Any small group of individuals causing the spy agencies grief will have their life investigated inside out exactly like what happened to the engineers in this Belgacom case. Small step from there to "neutralize" or coerce the threat though many different means. The only way that these agencies will be reined in and subjected to national laws is if there is a massive public outrage forcing a lot of politicians to put a leash on the rabid attack dog (without getting bitten themselves for trying to do it). So far none of that looks to be happening or that it even will happen... police states here we come.