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Researchers Ask Federal Court To Unseal Years of Surveillance Records (arstechnica.com)

An anonymous reader quotes a report from Ars Technica: Two lawyers and legal researchers based at Stanford University have formally asked a federal court in San Francisco to unseal numerous records of surveillance-related cases, as a way to better understand how authorities seek such powers from judges. This courthouse is responsible for the entire Northern District of California, which includes the region where tech companies such as Twitter, Apple, and Google, are based. According to the petition, Jennifer Granick and Riana Pfefferkorn were partly inspired by a number of high-profile privacy cases that have unfolded in recent years, ranging from Lavabit to Apple's battle with the Department of Justice. In their 45-page petition, they specifically say that they don't need all sealed surveillance records, simply those that should have been unsealed -- which, unfortunately, doesn't always happen automatically. The researchers wrote in their Wednesday filing: "Most surveillance orders are sealed, however. Therefore, the public does not have a strong understanding of what technical assistance courts may order private entities to provide to law enforcement. There are at least 70 cases, many under seal, in which courts have mandated that Apple and Google unlock mobile phones and potentially many more. The Lavabit district court may not be the only court to have ordered companies to turn over private encryption keys to law enforcement based on novel interpretations of law. Courts today may be granting orders forcing private companies to turn on microphones or cameras in cars, laptops, mobile phones, smart TVs, or other audio- and video-enabled Internet-connected devices in order to conduct wiretapping or visual surveillance. This pervasive sealing cripples public discussion of whether these judicial orders are lawful and appropriate."

24 comments

  1. Re: Quick by Anonymous Coward · · Score: 0

    No it's Trumps fault, let's blame him.

  2. progress by Anonymous Coward · · Score: 0

    good.

    1. Re: progress by Anonymous Coward · · Score: 0

      Except that it will never happen:

      Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.
      - C.S. Lewis

      Unfortunately the Judges in todays ate both tyrants AND morally superior busybodies.

    2. Re: progress by Anonymous Coward · · Score: 0

      It's both. Robber Barrons at the top, brainwashed moral busybodies at the bottom, with a nougaty center of malleable middle management.

    3. Re: progress by Anonymous Coward · · Score: 0

      You work for the APS too?

  3. No duh. by Narcocide · · Score: 4, Insightful

    This pervasive sealing cripples public discussion of whether these judicial orders are lawful and appropriate.

    Well of course it does. This is because they know very well that the orders are neither lawful nor appropriate. Furthermore they consider their ability to continue undermining national security a process that is vital to national security. So in order to maintain security, they must keep violating our security and must not allow public discourse to reach an informed consensus about what even constitutes security.

    *sigh*

    And that's not even touching on the privacy issues. Does anyone actually even need this shit unsealed to see the blatantly obvious logical flaw in the reasoning behind it being sealed in the first place?

    1. Re:No duh. by networkBoy · · Score: 1

      There's plenty of times where this would be lawful *and* appropriate.
      e.g.:
      there is reasonable cause to suspect a group is planning a bank robbery.
      Turning on the On-Star tracking and mic in their getaway car is both lawful (assuming you get a warrant) and appropriate.

      There are also (I suspect) vastly more inappropriate uses in those sealed dockets than there are appropriate ones.

      Unsealing these as a mater of course would (IMHO) lower the inappropriate use only if when it's discovered it's followed up on with the individuals seeking and granting such use (fines, warning letters, dismissal).
      -nb

      --
      whois gawk date unzip strip find touch finger mount join nice man top fsck grep eject more yes exit umount sleep dump
    2. Re: No duh. by skywire · · Score: 1

      Can the cops use a warrant to order my neighbour to help them batter down my front door?

      --
      Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.
    3. Re:No duh. by currently_awake · · Score: 1

      All gag orders should expire after 1 year, with mandatory disclosure to those spied upon. If they need more time they can get a search warrant.

    4. Re: No duh. by Anonymous Coward · · Score: 0

      Can the cops use a warrant to order my neighbour to help them batter down my front door?

      As a legal principle, yes. In practice, the cops want all the fun to themselves.

    5. Re:No duh. by Anonymous Coward · · Score: 2, Interesting

      The issue at hand is that such things are being done without a warrant.

      http://www.usatoday.com/story/news/politics/2016/06/16/house-blocks-ban-warrantless-surveillance-americans/85988494/

      Take your example, and lets speculate that over a period of time in a specific geographical area such a scenario was executed 100 times and resulted in 2 or 3 occurrences in which the suspected crime was actually being planned. Now lets say the other 96 or so were false alarms or misinformation, but during the investigations, 20 lead to unrelated but others crimes, which in turn led to several convictions. And lets say that the specific knowledge on how the investigators actually discovered their evidence was never revealed to the court, but rather they gloss over and more or less say they discovered a crime in progress due to a tip off or some such. That is called parallel construction.

      https://en.wikipedia.org/wiki/Parallel_construction

      It's generally an accepted method of investigation, but technology has surely amplified the message as well as the noise.

      So here are the questions to consider:

      Is it ethical and/or legal to use evidence in a prosecution that legally would require a warrant to be admissible in court in nearly every other circumstance?
      Is it ethical and/or legal to withhold evidence on how evidence leading to a conviction was obtained?
      Is it ethical and/or legal to conduct surveillance without judicial oversight on innocent citizens based solely on secret evidence?

      This is the murky territory we now find ourselves in. A good defense and/or bad prosecution would get the charges dismissed, as nobody wants to let on how the game is actually played. Realistically, most accused will take a plea in which case these questions simply never get brought up. But occasionally you might have someone who fights well and wins, or loses. That we are talking about it leads to the conclusion that these scenarios have likely occurred many many many times.

    6. Re: No duh. by MrL0G1C · · Score: 1

      Sure, as long as the cops supply the eggs flour and milk.

      --
      Waterfox - a Firefox fork with legacy extension support, security updates and better privacy by default.
  4. does this Trump the Russians? by turkeydance · · Score: 2

    or maybe a Hillary to far to climb? it's Friday and that's all i've got.

  5. Perhaps... by SeattleLawGuy · · Score: 1

    This pervasive sealing cripples public discussion of whether these judicial orders are lawful and appropriate.

    Well of course it does. This is because they know very well that the orders are neither lawful nor appropriate...

    It is impossible to determine that without actually reading (1) the orders (2) the information presented when they were requested, and (3) a substantial body of case law. And even then, there is still a chance we would need to make arguments in court and let a judge who has also done those things make a decision after we help them sort through the issues.

    Just because we don't like the idea or it's a TERRIBLE idea from a security POV doesn't mean it's illegal.

    --
    Real lawyers write in C++
  6. Unemployment line by jarablue · · Score: 1

    I could see a good amount of prosecutors claiming unemployment benefits if half the shit that was sealed became public. Funny how society at large thinks that lawyers should be at the bottom of the ocean when prosecutors are fucking sleaze. Who cares though right? Get a conviction at any cost no matter what live is at stake. Innocence means a whole lot of dick. Just get the conviction and let someone rot out of the public eye. You're telling me no one in the FBI knew anything about innocent people being in jail in 2014? Give me a fucking break. $$$ controls everything. Sleep tight guys!

    1. Re:Unemployment line by networkBoy · · Score: 1

      I'd like to point out that prosecutors are a subset of lawyers. As are judges.

      --
      whois gawk date unzip strip find touch finger mount join nice man top fsck grep eject more yes exit umount sleep dump
    2. Re:Unemployment line by ShaunC · · Score: 1

      In many jurisdictions, judges aren't required to have any legal background or education whatsoever. Even Supreme Court justices don't need a law degree or license, though one lacking them hasn't been appointed since 1941.

      --
      Thanks to the War on Drugs, it's easier to buy meth than it is to buy cold medicine!
    3. Re:Unemployment line by Uberbah · · Score: 1

      I'd like to point out that prosecutors are a subset of lawyers.

      Who's shitbaggery comes from being win-at-all-costs prosecutors, not from being lawyers. And if a civil attorney did half of what some corrupt prosecutors do - bribing jailhouse snitches with reduced sentences, hiding evidence from the other side - he'd find himself getting disbarred, and possibly spending some time in jail for contempt of court.

      For prosecutors, though, it was absolutely extraordinary when Ken Anderson, who sent Michael Morton to prison for 25 years for a murder he didn't commit, was sentenced to jail for hiding exculpatory evidence from the defense. A jail sentence for all of ten days.

  7. plenty of blame to go around. by Anonymous Coward · · Score: 1

    orders forcing private companies to turn on microphones or cameras in cars, laptops, mobile phones, smart TVs, or other audio- and video-enabled Internet-connected devices in order to conduct wiretapping or visual surveillance.

    When used beyond warrant-enabled specifically-targeted ways based on reasonable suspicion, this is a gross violation of the 4th amendment.

    However, the problem lies not just with the govt abusing it. It also lies with the teeming masses who not only make these devices succeed in the market, but do so to an extent that begins to push all other choices OUT of the market. Society is re-forming itself in the shape of a surveillance state, and it's not being forced down people's throats at gunpoint, it's being asked for.

  8. where does this stop by Anonymous Coward · · Score: 0

    You are angry that govt collected lots of information you. Now they want everyone to have access to that information?

  9. LOL by Anonymous Coward · · Score: 0

    In the land of the FREE, and home of the BRAVE...j/k you know you're not either anymore.

  10. Aw how cute... by ad454 · · Score: 2, Insightful

    Some lawyers and researchers at Stanford still think that the USA is a democracy which follows the rule of law, especially for its surveillance apparatus and unaccountable agencies (CIA, NSA, Homeland Security, ...).

    I do hope that no one bursts their bubble, it would be like telling small children that there is no Santa.

  11. plenty of nonsense to go around. by Uberbah · · Score: 1

    However, the problem lies not just with the govt abusing it. It also lies with the teeming masses who not only make these devices succeed in the market, but do so to an extent that begins to push all other choices OUT of the market. Society is re-forming itself in the shape of a surveillance state, and it's not being forced down people's throats at gunpoint, it's being asked for.

    Moran.

    People are buying electronic devices for their entertainment and convenience, not so the government can illegally spy on them. And people shouldn't have to become luddites in order for the government not to violate their basic rights.