Court Again Says It's Okay For The Feds To Snoop Through Your Digital Info Without Telling You

from the that-old-4th-amendment dept

You may recall that in its quixotic attempt to go after Wikileaks, the US government has been snooping through the private communications of a bunch of folks they’re trying to connect to the organization, including Icelandic politician Birgitta Jonsdottir and Jacob Appelbaum, who gets detained and harassed every time he re-enters the country. All of this came to light only because Twitter actually stood up to the US government and refused to just hand over info that was requested using the obscure 2703(d) process. Twitter also got the court to allow it to reveal the existence of the order (something that every other company which has received one has kept secret). A court eventually ruled that Twitter had to hand over the requested info.

Following this, Jonsdottir, Appelbaum and one other person, Rop Gonggrijp, (represented by the ACLU and the EFF), chose not to challenge that ruling, but did appeal concerning the secrecy around the order — asking the court to have the specific 2703(d) order unsealed — arguing that they have the right to access judicial documents about themselves. However, last week, an appeals court rejected that appeal, and basically said that the feds can sniff through your digital data without your knowledge, and, well, too bad if you don’t like it.

Even though the court did find that 2703(d) orders are “judicial records,” which could make them subject to a right to access, they then claimed that, well, when the government investigates things, it should be able to do so in absolute secrecy, and who really cares about pesky little things like oversight or a right to know about it.

Subscribers’ contentions fail for several reasons. First, the record shows that the magistrate judge considered the stated public interests and found that the Government’s interests in maintaining the secrecy of its investigation, preventing potential subjects from being tipped off, or altering behavior to thwart the Government’s ongoing investigation, outweighed those interests.

Further, we agree with the magistrate judge’s findings that the common law presumption of access to § 2703 orders is outweighed by the Government’s interest in continued sealing because the publicity surrounding the WikiLeaks investigation does not justify its unsealing. The mere fact that a case is high profile in nature does not necessarily justify public access…. Additionally, Subscribers’ contention that the balance of interests tips in the public’s favor because the Government approved the disclosure of the existence of its investigation by moving the district court to unseal the Twitter Order is adequately counterbalanced by the magistrate judge’s finding that the “sealed documents at issue set forth sensitive nonpublic facts, including the identity of targets and witnesses in an ongoing criminal investigation.”

The government gets to peer deeper and deeper into our lives, and we’re less and less able to even know about it.

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Comments on “Court Again Says It's Okay For The Feds To Snoop Through Your Digital Info Without Telling You”

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69 Comments
Anonymous Coward says:

Yep, the government gets to investigate crimes without having to turn over information on their active investigations to whiny bloggers like you. Big deal. I know you just like to criticize everything the government does because you hate the government and everything about it, but it’s pretty unreasonable to think that you should have access to active investigations. Do you think you should be able to go to the police station and look through all the detectives’ paperwork for the cases they’re working on? I don’t, and neither did the court of appeals. Keep complaining about everything, Mike. It’s all you know how to do.

Erlkoenig says:

Re: Response to: Anonymous Coward on Jan 28th, 2013 @ 5:51am

From your wording you care more about hating Mike, but I’ll go ahead and respond anyway,

He’s not saying the government should turn over data on active investigations. If the police get a warrant to search through your shit, they have to somehow provide you a copy of the warrant. Here that doesn’t happen. It’s just more of the government pretending that the 4th Amendment doesn’t apply to technology.

G Thompson (profile) says:

Re: Re:

It seems Google disagree’s with your idiocy of allowing your government to get anything they want no matter what too and now requires a probably cause warrant on ALL requests by government, and that includes ECPA requests as well, no matter what prosecutors or other governmental investigators think.

See Twitter isn’t the only one fighting back, nor Mike, nor other reasonably intelligent US citizens and corporations.

As for access to active investigations, it is a matter of due process that an accused has to be able to confront their accuser in all matters and know exactly what they are being investigated for if they find out about the investigation.

“?Google requires an ECPA search warrant for contents of Gmail and other services based on the Fourth Amendment to the Constitution, which prevents unreasonable search and seizure,? Chris Gaither, a Google spokesman, said”

Via wired

Anonymous Coward says:

Re: Re: Re:

I think they should actively investigate you, especially without telling you, and use the flimsiest of pretexts to throw the book at you. After all, you wouldn’t complain; you would embrace such a righteous gesture.

And while you guys are on the internet whining about perceived violations of constitutional rights, I’m studying so that I can actually defend actual people’s actual constitutional rights. So yeah, tell me again how I don’t care. I’m planning a career of protecting people’s constitutional rights. What are you doing?

Anonymous Coward says:

Re: Re: Re:2 Re:

Wow. I hope at some point you find yourself defending freedom of the press. I’d sure like to see the look on your client’s face when you refer to their attempt to shine a light on malfeasance and injustice as “whining on the Internet”.

I did some work last summer getting a law enjoined that violated the First Amendment. I didn’t whine on the internet. I did something about it.

Anonymous Coward says:

Re: Re: Re:3 Re:

Not sure why you call an open discussion ‘whining.’ Your enjoinder didn’t sprout from the earth all shiny and complete. It took conversations and research, just like we present here, to do what you’re harping about. This is part of the process, and if you wish to deny it, well.. you’re only another cog, anyways.

Anonymous Coward says:

Re: Re: Re: Re:

What am I doing? Not my country, so I’m not sure what I can do about it. Though, it doesn’t look like you give two poops about constitutional rights. You actually think life + 70 is moral and just. I can’t imagine anyone would trust you with constitutional rights further than they could throw you with both their arms chopped off.

Anonymous Coward says:

Re: Re: Re:2 Re:

What am I doing? Not my country, so I’m not sure what I can do about it. Though, it doesn’t look like you give two poops about constitutional rights. You actually think life + 70 is moral and just. I can’t imagine anyone would trust you with constitutional rights further than they could throw you with both their arms chopped off.

Considering that life plus 70 is the international norm, you must think that the majority of people on earth are immoral and unjust because they have a different belief about the proper term of copyright than you do. Surely that should be the measure of a person’s worth. “Agree with me about the length of copyright, or else I know you’re not a good person.” Good luck with that worldview.

Anonymous Coward says:

Re: Re: Re:3 Re:

It’s the international norm only because the RIAA and its international incest-born clones jacked up rates in different countries, then whined to their local lawmakers that if copyright lasts shorter than the maximum in other countries their economies lose out.

The majority of people on the planet don’t agree that copyright lasting that long benefits anyone. Sure, they might agree that it’s in law, which is a fact, but not so much when it comes to the benefits of upholding such a law and its penalties. You seem intent on defending this law regardless of the merits or lack thereof, and your posting history is indicative of you being “not a good person”.

Anonymous Coward says:

Re: Re: Re:4 Re:

I think the law should be respected and that people’s rights thereunder should be protected. Want to shorten copyright? Be my guest. I personally think life+ is the way to go, but I would gladly respect any democratically-instituted change to the law. I’m not defending it only because it’s the law, I’m defending it because I think it’s meritorious.

Anonymous Coward says:

Re: Re: Re:5 Re:

And this view is shared by the majority of the planet’s population? You seem to be discrediting the earlier post on the grounds that most people think that “life+ is the way to go”. Anecdotal evidence suggests otherwise.

Are you also advocating the merits of constantly extending life++? If so, care to elaborate?

Anonymous Coward says:

Re: Re: Re:6 Re:

I don’t know what a majority of individuals think, as I’m sure neither do you. I do know that a majority of lawmakers voted that way. You write this off as RIAA engineering, but that sounds like a gross oversimplification to me. For example, I believe the statutory right of publicity in California is life plus 70. I doubt the RIAA was behind that. I think instead it reflects the balancing of interests. I’m not advocating any further expansion of copyright term. If any suggested one, I’d be dubious as to why it were needed. Like with the property right of publicity, I think the property right of copyright rightly belongs with the author for as long as the author lives. It’s the author who creates that market value, and that author should be the one to reap it while still alive. The “plus” is because I believe that it should be treated like other valuable assets that comprise one’s estate and it should pass on just like other personal property.

Anonymous Coward says:

Re: Re: Re:

I’m an occasional visitor to TechDirt. Even so I’ve noticed that you are quite vociferous. Maybe you were neglected as a child and crave attention. Anyway, do you think that there should be any limits to government intrusion into individual’s lives?

Of course there should be limits to government intrusion, just as there are limits to constitutional rights. Things need to be balanced, not completely slanted to one side or the other. I’m concerned with the bigger picture.

Anonymous Coward says:

Re: Re: Re:2 Re:

There should be no limits to Constitutional rights, except when specific Constitutional rights come into conflict with each other. Then they must be balanced with each other.

All constitutional rights are limited, and rightly so. This opinion shows how First Amendment rights are to be balanced against competing interests.

John Fenderson (profile) says:

Re: Re: Re:5 Re:

That’s not what I’m saying at all. I’m saying that the Constitution is the last word, and the provisions of the Constitution are not to be balanced against anything other than other provisions of the Constitution.

I’m not really sure how to make this any clearer. To the extent that the Constitution permits the government to act to protect the public welfare (and that’s not a small extent), those are balancing factors.

However, the minute that we say that Constitutionally protected rights are to be compromised to external factors (such as a vague “public welfare” rationale, or because of “patriotism” or whatever), we have entered a very dangerous place.

Anonymous Coward says:

Re: Re: Re:6 Re:

That’s not what I’m saying at all. I’m saying that the Constitution is the last word, and the provisions of the Constitution are not to be balanced against anything other than other provisions of the Constitution.

I’m not really sure how to make this any clearer. To the extent that the Constitution permits the government to act to protect the public welfare (and that’s not a small extent), those are balancing factors.

However, the minute that we say that Constitutionally protected rights are to be compromised to external factors (such as a vague “public welfare” rationale, or because of “patriotism” or whatever), we have entered a very dangerous place.

The police powers of the states aren’t mentioned in the Constitution except for the 10th Amendment which just says whatever’s left after the federal government gets its powers belongs the states. Our constitutional rights are always balanced with other countervailing interests. Your right to speak in the park is curtailed by the state’s right to close down the park at night for safety reasons. I’m not sure I understand what your point is since what you’re suggesting is just not how constitutional rights work.

Anonymous Coward says:

Re: Re:

I mean, I don’t see why this is such a big deal. After all, it’s just like how the 4th Amendment says that the government can just come into your house randomly and search through your mail and whatnot.

Nowhere is the Fourth Amendment even mentioned in the embedded document. It was a First Amendment challenge.

Jeff (profile) says:

Re: Re: Re:2 Re:

The connection is simple – government sweeping aside all of our constitutional rights when it feels like it. Defend them all or defend none…

You seem to live a la-la land where the government does everything by the book and every body is above board, and abiding by the law of the land. Take off your rose colored glasses – our constitutional rights are under assault – all of them. Not just the first amendment, or even the second amendment like the gun guys will quite vocally tell you; all of them are under pressure – defend them all or GTFO.

Jeff (profile) says:

Re: Re: Re:4 Re:

Are you being a purposely dense lawyer? Because a resonable person can correctly see this as another incident in an increasing pattern of government overreach into our indivdual rights. You are corrrect when you say “this is a first amendment challenge” – you are completely wrong to dismiss it as trivial. But hey, perhaps you’ll be the first lawyer hired by the Zambolitisa…

Anonymous Coward says:

Re: Re: Re:5 Re:

Are you being a purposely dense lawyer? Because a resonable person can correctly see this as another incident in an increasing pattern of government overreach into our indivdual rights. You are corrrect when you say “this is a first amendment challenge” – you are completely wrong to dismiss it as trivial. But hey, perhaps you’ll be the first lawyer hired by the Zambolitisa…

You’re just spouting general rhetoric about how our rights are under attack. I’m asking specifically what this specific opinion has to do with the Fourth Amendment specifically. Mike brought it up, and I have yet to see why.

Anonymous Coward says:

Re: Re: Re:6 Re:

I. A.
Title II of the Electronic Communications Privacy Act of 1986, commonly known as the Stored Communications Act (“SCA”), was enacted to protect the privacy of users of electronic communications by criminalizing the unauthorized access of the contents and transactional records of stored wire and electronic communications, while providing an avenue for law enforcement entities to compel a provider of electronic communication services to disclose the contents and records of electronic communications.

To obtain records of stored electronic communications, such as a subscriber’s name, address, length of subscription, and other like data, the government must secure either a warrant pursuant to Federal Rule of Criminal Procedure 41, or a court order under 18 U.S.C. ? 2703(d). 18 U.S.C. ? 2703(c).

The SCA also provides for gag orders, which direct the recipient of a ? 2703(d) order to refrain from disclosing the existence of the order or investigation. See 18 U.S.C. ? 2705(b).

If that doesn’t speak to you at all about the fourth amendment, then we should be glad you’re still in law school.
Even if we assume that the federal government does lawfully procure all necessary warrants (and I see no reason to assume they will), the ability to avoid disclosing their searches to the affected parties effectively removes the fourth amendment’s protection against unreasonable search. If you cannot know when you are being searched, how can you assert your rights when the search is unreasonable?

Anonymous Coward says:

Re: Re: Re:7 Re:

If that doesn’t speak to you at all about the fourth amendment, then we should be glad you’re still in law school.
Even if we assume that the federal government does lawfully procure all necessary warrants (and I see no reason to assume they will), the ability to avoid disclosing their searches to the affected parties effectively removes the fourth amendment’s protection against unreasonable search. If you cannot know when you are being searched, how can you assert your rights when the search is unreasonable?

The government gets a warrant based on a reasonable suspicion standard. If the government ends up indicting someone, that person would then be able to challenge the sufficiency of the showing made in the warrant application. There is no loss of the ability to challenge an unlawful search. The fact is that this is at the pre-indictment stage. Once there is an indictment, there is a panoply of protections given to a defendant. You’re trying to make this sound like the big bad government can get away with shitting on our rights. I don’t see it.

Anonymous Coward says:

Re: Re: Re:8 Re:

The fact is that this is at the pre-indictment stage. Once there is an indictment, there is a panoply of protections given to a defendant.

I see. Only once we reach the indictment stage can there have been any wrongdoing in the investigation. I suppose if the government fails to obtain a proper warrant, or obtains one against a citizen’s reasonable expectation of privacy, but doesn’t end up pressing any charges, then that citizen has not lost his right to security against unreasonable search because he wasn’t indicted! Thanks for clearing that up.

Anonymous Coward says:

Re: Re: Re:9 Re:

I see. Only once we reach the indictment stage can there have been any wrongdoing in the investigation. I suppose if the government fails to obtain a proper warrant, or obtains one against a citizen’s reasonable expectation of privacy, but doesn’t end up pressing any charges, then that citizen has not lost his right to security against unreasonable search because he wasn’t indicted! Thanks for clearing that up.

Don’t be such a nit. The neutral magistrate who issues the warrant is there to assess whether reasonable suspicion has been articulated. We’re talking about active investigations where the court can not only keep the warrants sealed, but it can also issue gag orders so that people that find out about it don’t mess up the investigation. Sorry, but I prefer to let law enforcement officers do their job. I love the ACLU and the First Amendment, but I also recognize that sealing things and issuing gag orders is sometimes necessary for law enforcement to do their job.

Anonymous Coward says:

Re: Re: Re:10 Re:

I love the ACLU and the First Amendment, but I also recognize that sealing things and issuing gag orders is sometimes necessary for law enforcement to do their job.

So long as you also recognise that I have adequately pointed out to you the parts of the opinion which bring out the fourth amendment concerns, as well as acknowledge that conceding the ability to gag search warrants may include as collateral damage the loss of some of the protections of the fourth amendment, you are certainly welcome to your opinion that such concession is necessary.
I don’t agree with you, though.

Anonymous Coward says:

Re: Re: Re:11 Re:

So long as you also recognise that I have adequately pointed out to you the parts of the opinion which bring out the fourth amendment concerns, as well as acknowledge that conceding the ability to gag search warrants may include as collateral damage the loss of some of the protections of the fourth amendment, you are certainly welcome to your opinion that such concession is necessary.
I don’t agree with you, though.

What’s the concern? That the government won’t really have a “reasonable suspicion” (which is a low standard)? That the magistrate won’t be able to be impartial? Where’s the Fourth Amendment violation that’s so worrisome that we should meddle in the early phases of an ongoing investigation?

anonymouse says:

Re: Re: Re:2 Re:

Of course there is a connection the right to free speech and the right to no unnecessary search and seizure is basically one and the same thing , you obviously dont understand the constitution very well do you. Imagine i write a speech and i have it in a file on the internet, they come and sneak in and steal it and knowing what is in it can arrest and jail me for incitement to violence before i have even made the speech available to anyone to hear/read. So yeah nice try splinting the two but they are bound together if they are going to use one to stop the other.

yaga (profile) says:

So frustrating...

The government gets to peer deeper and deeper into our lives, and we’re less and less able to even know about it.

And the sheeple of the US are content in letting it happen.

Actually I’ll go on a conspiracy tangent for a moment – the people in power, along with mainstream media, are distracting the sheeple from noticing that this is happening.

Either way it’s happening and not enough people are fighting it nor is there enough publicity about these types of actions and court rulings in favor of these actions.

Anonymous Coward says:

“The Feds! I thought I smelled your foul stench. The tighter your grip, the more star systems will slip through.”
Well we need an encrypted message system with your own key, no one else can unlock it and then when the feds want the info they are welcome to it. If they want to read it they have to contact you to get the key. Then you demand a subpoena Real simple.

anonymouse says:

really

This ruling and those before are the reason that more and more people are hiding what they do and using not only encryption but other means to hide their activity and their private confidential files private.
If the governements around the world do not stop this infringement of our right to privacy then we will force them to accept that not only will our legal files be encrypted and beyond their grasp but also all the files that they really do need access to to seek down those that would hurt our country.
There is no reason citizens should not have privacy, no reason at all. The excuse of terrorism is nothing more than a smoke screen and anyone that does not understand that is being blinded by the propaganda spewed out to gain access to everything we do and prevent any future uprisings against governments like happened with the arab spring.

And surely if the government is afraid the people will rise up against them they should be resolving the problems that put them in that situation not trying to just stop the natural venting of anger at the governments inane actions.

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