DOJ Pushes Out Legislation Proposal To Undercut Microsoft Case Decision About Overseas Searches

from the please-please-please-let-us-get-what-we-want dept

No sooner had the ink dried on the Second Circuit Appeals Court decision regarding Microsoft and its overseas servers than new legislation designed to undercut the court’s finding has been printed up by the DOJ and presented to the administration.

Microsoft successfully argued that the US government couldn’t force it to unlock a server in Dublin, Ireland, so it could rummage around for evidence. Nor could the DOJ force the company to act on its behalf, performing a search of its overseas servers for documents the US government couldn’t access otherwise.

Since that decision obviously just won’t do, the DOJ has presented proposed legislation [PDF] that would alter existing Mutual Legal Assistance Treaties (MLATs) so the agency can do the very thing a court just said it couldn’t do.

The details are discussed in, um, detail over at the Lawfare blog by none other than a former DOJ lawyer (David Kris). Needless to say, the post skews towards “supportive,” but the analysis is thorough and offers some excellent insight on what the DOJ hopes to open up — and what it’s willing to concede in return for this new power.

The law would limit searches to communications from non-US citizens located abroad and only for criminal investigations. This would prevent the altered MLATs from being used by US agencies to gather intelligence, restricting them only to gathering evidence of criminal activity. That being said, for every concession made, there’s a DOJ land grab.

The heart of the proposed legislation is section 4, which allows for executive agreements between the U.S. and foreign governments. Where a satisfactory agreement is in place, the barriers to access in the Wiretap Act, Stored Communications Act, and criminal Pen Register statute are removed (by section 3).

Of all the places to remove existing limits, the DOJ has chosen three of its most-abused laws/statutes. The Wiretap Act has been rendered toothless by the DEA’s collusion with a judicial rubber stamp in California and used by the DOJ to push American telcos into doing its spying for it. The Stored Communications Act was just another (failed) angle of attack for the DOJ in its fight against Microsoft. And the Pen Register Act has been used as a cover for Stingray deployments by multiple law enforcement agencies, all with the tacit approval of the FBI, which still acts as a middleman in every IMSI catcher purchase by local PDs.

From there, the DOJ offers a melange of legal authorities to govern its searches of foreign servers.

The foreign orders authorized by the agreement must meet several specific requirements. First, they must pertain to the “prevention, detection, investigation, or prosecution of serious crime, including terrorism.” This means that affirmative foreign intelligence gathering is out of bounds. Conceptually, the idea here seems similar to the split in FISA’s two definitions of “foreign intelligence information,” 50 U.S.C. 1801(e)(1)-(2).


Second, the foreign orders must use a “specific” identifier such as a name or account as the “object of the order.” This comes from the USA Freedom Act’s amendments to FISA, designed to prevent bulk collection, 50 U.S.C. 1841, 1861.


Third, the orders must be “based on requirements for a reasonable justification based on articulable and credible facts, particularity, legality, and severity regarding the conduct under investigation,” and must be subject to “review or oversight” by a judge or other “independent authority.” These elements seem to be derived in part from several U.S. constitutional requirements—e.g., those governing a stop and frisk (Terry v. Ohio, 392 U.S. 1 (1967)), the definition of probable cause (Illinois v. Gates, 462 U.S. 213 (1983)), the requirements for a search warrant (including particularity and a neutral and detached magistrate, see Maryland v. Garrison, 480 U.S. 79 (1987)), and a proportionality requirement.

At first blush, these would seem to subject DOJ requests to multiple forms of oversight. But it most likely won’t. The self-written loopholes allow for plenty of “search first, ask permission later” action.

Of course, the requirements are not exactly the same as those the Fourth Amendment would compel—for example, the reference to “review or oversight” by a judge or other “independent authority” would seem to permit after-the-fact review by a Parliamentary body rather than advance review of orders by a judge.

On top of that, the folding in of FISA language allows the FBI, et al to interpret “criminal investigation” very loosely.

Note, however, that counter-intelligence, expressly including counter-terrorism but also probably including counter-espionage, is included, because the language refers not only to “investigation” and “prosecution,” but also to “prevention” and “detection” of crime.

So, despite saying the MLAT alterations would be limited to investigatory work, rather than intelligence gathering, the new agreements could be read as permitting both. And, despite restricting agencies from using foreign government to obtain data or communications they otherwise wouldn’t be able to access, the proposal does allow these entities to provide US agencies with data and communications involving US persons. Sure, there are minimization procedures, but they’re apparently tied to restrictions built into foreign governments’ laws rather than our own, and auditing for abuses of this access is limited to a review every half-decade — hardly the sort of thing that stops abuse in its tracks.

And the minimization procedures deployed by foreign governments when handing over info on US persons are tied to a bunch of exceptions — the usual parade of horrors agencies use to justify intrusive surveillance.

[A] foreign government “may not disseminate the content of a communication of a U.S. person to U.S. authorities unless it is relevant to the “prevention, detection, investigation, or prosecution of serious crime, including terrorism, or necessary to protect against a threat of death or serious bodily harm to any person,” and also “relates to significant harm, or the threat thereof, to the United States or U.S. persons, including but not limited to crimes involving national security such as terrorism, significant violent crime, child exploitation, transnational organized crime, or significant financial fraud.”

So, it can’t be used for anything not included on the “serious crimes” list, which doesn’t leave much. There’s not a whole lot of criminal activity that can’t be squeezed into this laundry list. Moving violations? Jaywalking? Lord knows anything drug-related will still be considered “dangerous,” even if most of the threat is composed of overreacting drug warriors lobbing flash bangs into cribs at 5 am.

Obviously, the DOJ wasn’t just going to stand by and let the Second Circuit determine how it’s going to operate. This bill may have been a long time in the works, but its public debut is impeccably timed.

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Companies: microsoft

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Comments on “DOJ Pushes Out Legislation Proposal To Undercut Microsoft Case Decision About Overseas Searches”

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DannyB (profile) says:

Re: Re: Re:

You’ll just love it. I mean, it will be the best, classiest treaty you’ve ever seen. Everyone who’s ever read a treaty that I re-negotiate has just loved it. And if the other parties to the treaty don’t like it, we’ll make the other treaty signatories pay for it! Believe me, I know what I’m talking about. My foreign policy will put America in a position with foreigners like we’ve never seen before! Trust me. It will be great.

Ninja (profile) says:

Let’s recap a little bit: what are laws meant for? They are a product of people who represent the citizenry based on behaviors society believes to be punishable or something.

Then the DOJ loses a case but because the little tyrants behind it don’t like the outcome the DOJ pushes for laws nobody asked for that will most likely affect Constitutional rights people fought hard to have and were written in a way that protect even foreigners from Government overreach.

So instead of having what I first described we have laws being written by a few corporate interests or the interests of a few paranoid, megalomaniac tyrants that serve everybody EXCEPT the citizenry. Awesome.

Personanongrata says:

When At First You Don't Succeed

DOJ Pushes Out Legislation Proposal To Undercut Microsoft Case Decision About Overseas Searches

It must be nice to have seemingly infinite resources (thank you tax slaves and deficit spending) so as the US government (DOJ or what ever government acronym applies) can make unlimited attempts to tilt the legal/economic “playing field’ in it’s favor whenever it suits governments fancy.

Whatever DOJ’s actions are labeled it certainly has nothing to do with justice and everything to do with wanton lust for power.

Kent State Never Forget says:

Re: Re: Re: You can only police people as much as they want to be policed

When you can stare down a barrel of an assault rifle aimed at you for excersizing your right to peacefully protest their atrocities and can place a daisy in that barrel, you got something you can rest peacefully in your grave about.

That One Guy (profile) says:

Re: Who watches the watchers

The problem is not one part of the government has both pieces necessary to do something about the rot infesting the whole thing.

If they have the ability to do something, they have no inclination to do so.

If they have the inclination to do something, they don’t have the ability to do so.

The entire government is basically filled with people who are willing to look the other way when someone else abuses their power/position for personal gain, with the understanding that the other person will return the favor when it’s their turn to do the same.

Anonymous Coward says:

A solution for vehicles stopages and drug dogs

Have a small chemical delivery system installed on your vehicle and while the windows are wound up release small quantities of the following kinds of chemicals:

thiophenol (toxic)
selenophenol (toxic)
hydrogen selenide (toxic)
hydrogen telluride (toxic)

or the top of the list


The last causing unpleasant reactions up to 3/4 of a km away. I don’t think drug dogs will be willing to stick around to sniff your vehicle, particularly if said compound is managed to be placed on doggy. I would also assume that the police will also leave you alone.

A remarkable property of thioacetone is its odor (or perhaps the odor of oligomerization or degradation products). The smell is so potent it can be detected several hundred meters downwind mere seconds after a container is opened. In 1889, the attempt to distill the chemical in the German city of Freiburg im Breisgau was followed by cases of vomiting, nausea and unconsciousness in an area 3/4 of a kilometer around the laboratory due to the smell. The soap manufacturer Whitehall Soap Works later noted in a 1890 report that dilution seemed to make the smell worse and described the smell as “fearful”.

Anonymous Coward says:

They can’t hide it anymore.

We are all carrying cameras and microphones now. We are all ready to “go to press” at a moments notice now.

The old propaganda machine is still chugging away, but half of us don’t believe it anymore. Many don’t even see it anymore.

And each year more and more our poor, brainwashed pre-internet forebears die off.

Each year the number of us that regard “our” “leaders” with nothing but contempt grows.

That shit with Lynch a couple of weeks ago. It would be shocking if it wasn’t already the expected norm.

Government needs to adapt to the new reality. Because we’ve been listening to stories about “freedom and democracy” for far too long to ever be able to accept the “new deal” being offered now.

Never one of them says:

Re: Re:

They have violated every aspect of America. They send our sons and daughters off to fight for them. They aim the law enforcement at us and our freedoms. They have sex in the oval office of our whitehouse and lie about that. There is nothing they wont deface. We are the other half of this nation and we can’t possibly sit by much longer and take their abuse of our government. They stockpile hollow point ammo to be used against us. We are the citizens of this great nation.

Seegras (profile) says:

State of Law

Did the DOJ ever hear about the foundations of the State of Law, namely the separation of power?

Well, separation of power says THE FUCKING DOJ DOES NOT MAKE LAWS, not even propose! And if they’re trying they’re trying to subvert democracy itself. I’d call such an action treasonous and at least enough to fire all involved people within the DOJ immediately, with a ban of ever working in the DOJ again.

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