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  • Jan 23rd, 2014 @ 10:27am

    Re: Re: "illegal"?

    to respond to your individual points:

    1) no, following an unconstitutional law is 100% legal under the ordinary definitions of these terms. It matters a great deal, in court, which it is and Judge Leon's opinion itself makes this very clear. It's not sophistry: everything about what eventually happens in this case will depend on it. I agree with you that the Patriot Act is unconstitutional, though "on its face" is suggesting there is a fact of the matter about that, and there isn't, or otherwise Congress would not have approved it and all judges would agree (and we already know they don't).

    2. This is just plain wrong. 215 specifically forces the NSA to approach the FISA court for authorization. Granting that authorization provides the NSA with the legal authority to do what is authorized. Whether or not they are or should be held to a "higher standard of conduct" on a moral level, that court approval provides "on its face" evidence of legality, not illegality: it is literally what the law demands. Further, Judge Leon entertained and rejected the claim that 215 had been violated. That doesn't mean someone else won't make the claim successfully, but I find it much weaker than the Constitutional claim and highly unlikely to produce anything like the same wide-ranging reforms or elimination of program.

    This is all going to court. This story is about court. Getting legal language correct *in court* is not sophistry. It is a requirement.

  • Jan 23rd, 2014 @ 10:16am


    While I completely agree with John Fenderson's point, that makes it all the more important to be precise. Greenwald is not always precise about this, and he is a lawyer, which makes it worse.

    Accusing the US Government of doing something illegal is a very serious charge. If it is, you should be able to specifically state which law has been allegedly violated.

    I understand that in common discussions people sometimes use "illegal" and "unconstitutional" as synonyms, but they are different in very important ways. The Constitution is not law, it is something much more fundamental.

    Furthermore, this piece is specifically about what a judge said, and one of the two judges quoted here specifically rejected the claim that the programs were illegal, while accepting the claim that they are unconstitutional.

    I want the attack on the NSA programs to be credible so that we get them reformed or eliminated in the proper way. I don't think making very serious allegations that don't have facts to back them up, and mis-stating what judges say helps that at all.

    Among other things, the penalties for doing something "illegal" are typically very different from those for doing something "unconstitutional." If NSA is in violation of Section 215, those specific actions might be declared illegal, while allowing NSA to go about its business. On the other hand, if Section 215 is declared unconstitutional, the whole program may be shut down. That is a highly preferable outcome in my opinion.

  • Jan 23rd, 2014 @ 10:08am

    Re: Re: "illegal"?

    "illegal" has a very plain meaning: it means in violation of a law (NOT the Constitution).

    I am not defending the NSA in any way. I believe the programs are unconstitutional, which is more serious than "illegal" for many reasons.

    But for something to be "illegal," it must be in violation of a law. If it is actually following a law, it is by definition "legal."

    This has real consequences. For someone to be charged or prosecuted in court, there must be a law they have violated.

    Further, Judge Leon specifically addressed the legality question and dismissed it. He embraced the constitutional question. So do I.

    But the mechanisms, regulations, and procedures regarding something being unconstitutional are different from those for something being illegal.

    I will ask you in the most direct way: illegal means "in violation of the law." Which US law has been violated in your estimation? Which US laws do Judge Leon or Judge Walters say has been violated?

  • Jan 23rd, 2014 @ 9:19am


    Just as a point of order, but it's an important one, I think.

    In your title, you put "illegal" in quotation marks, as if it appears in the judge's ruling. But it doesn't appear in the quotations you provide, and my memory is that it doesn't appear in Judge Leon's ruling--in fact, that he refuses to hear the question of legality.

    The word both judges use is "constitutional." As you say yourself, now referring to Judge Walton's decision, "Without the FISA court's intervention and the agency's ability to abide by the court's rulings, the NSA's collection would be illegal."

    The fact that the FISA court does appear to have authorized these collection programs under 215 makes them ipso facto *legal*.

    If the NSA has lied to the FISA court about the programs, it may well have violated 215 or other laws, though that's not clear and would depend on specific 215 provisions. It may have violated laws about providing true evidence to the Court. But those aren't the charges described here.

    I am splitting these hairs because it's an important issue: most of the time, what are declared "unconstitutional" are *laws*. (not always; sometimes particular practices get declared unconstitutional, but mostly it is laws).

    My general impression is that, especially given the FISA court approvals, much of what the NSA and other intelligence agencies do is *legal* under the Patriot Act and other US laws. There are exceptions, but Greenwald et al use the word "illegal" quite indiscriminately. The Patriot Act is bad law, but following it is legal, not illegal.

    That doesn't mean the Patriot Act is Constitutional. I don't think it is. But until ruled on by the Supreme Court, under US law, that remains a matter of opinion. Further, were the Patriot Act to be ruled unconstitutional, that would still not make NSA actions retroactively illegal, except in a very extended sense.

    Most of the time, it is *legal* actions that get declared unconstitutional. Once they are, the govt can't do them anymore, but that does not give anyone the right to retroactively charge those who were following bad law with doing something illegal. They weren't they were following bad law.

    Most of the time, illegal != unconstitutional, and if we are talking about actual law, the two are close to mutually exclusive.

  • Nov 11th, 2013 @ 5:55am


    I wonder if LinkedIn (who is already involved in a lawsuit over the NSA stuff) and Slashdot have any legal basis to go after the government for effectively attacking their servers?

    I wonder if this reflects your general knowledge of law. You can't sue the Federal Government (for causes other than those specifically mentioned in the Federal Tort Claims Act, which is reserved for negligence by government employees) under a thousand-year-old doctrine called "Sovereign Immunity." Which every law student learns about in year one.

    You particularly can't sue law enforcement for damages created by law enforcement activities. Go ahead, check Lexis/Nexis--you won't find a case.

    Those who take legal claims made on this site seriously should keep this in mind next time around...


    https://e n.wikipedia.org/wiki/Sovereign_immunity

    https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_Unite d_States

  • Oct 15th, 2013 @ 8:20am

    now we are back to usual disagreements

    governments are not merely allowed to, but must have secrets.

    those secrets mean that people not in possession of them cannot in principle judge whether certain forms of information will or will not cause harm to certain programs or initiatives.

    has this gotten out of control? yes.
    is the national security state much larger than it probably needs to be? yes.

    but the solution to this is representative oversight, via elected representatives. it may be to pass laws severely limiting the scope of what can be kept secret.

    but that does not change the basic facts: items legally kept secret (as these issues, by the way, currently are) for reasons of national security are not items the consequences of whose distribution anyone outside of the security apparatus can truly judge.

    let's take just a slightly different headline: "If Govt tells me publishing troop movements is not in public interest, who am I to judge?" Would you really mock that too? Because that issue has been litigated several times and journalists actually aren't supposed to publish information like that.

    I don't like war. But this particular issue has been legislated several times. Unless direct, clear, immediate violation of law is alleged, journalists are supposed to defer to governmental judgments about national security. The NSA claims are almost entirely about Constitutionality, not legality (part of the problem is that the programs that clearly are currently legal are abhorrent, and the law that underwrites them can't be checked by usual means). They are not immediate.

    I am not saying Blackhurst is right, but I tend to think Gellman has been more judicious than the Guardian in deciding what to publish, and your general point just seems wrong to me. Until and unless we abolish the national security state and all secrets (which I don't think there is any coherent argument for, by the way), journalists do need to work closely with government to ensure they don't publish inadvertently damaging information.

  • Jul 26th, 2013 @ 11:43am


    interesting in NSA's use of a term similar to CIA "family jewels," which were also largely about wiretapping & surveillance, & which were supposedly "released" in 1977. Then released again in 2007, & quite differently (& to almost no notice from media).

    good overview & complete (as of now) documents at:

  • Jul 17th, 2013 @ 4:14pm

    stop this

    if you keep writing stuff i agree with i may have a heart attack.

    read back through the 9/11 commission transcripts--the security state was going out of its way to exacerbate the firewall problems before 9/11 happened. They clearly could have communicated more about the threats they not only perceived but both the FBI and CIA had hands in supporting. That whole part of the story gives me a chill, & the number of security state reps who shouted "tear down that firewall" immediately after the event really, really frightened me. Even security-insider legislators like Hamilton & others responded to their "the firewall prevented us from connecting the dots" claims with incredulity at the time. They wanted this power, far beyond what reason would dictate, and I think the reasons have much less to do with "real" terrorist threats than with "potential" terrorist threats, i.e., anything certain security-state types perceive as threatening to some very powerful interest.

  • Jul 12th, 2013 @ 9:15am

    this is funny but

    a) I think aldestrawk's comments deserve a response. According to the very story you link to, it was not internet cafes, but "internet cafes" which explicitly ran gambling machines, that have shut down their gambling machines: http://www.huffingtonpost.com/2013/04/10/florida-internet-cafe-law-signed-rick-scott_n_3054466.html. That appears to be the sane target the bill was going after (whether banning gambling is a good idea is another question, but you have to admit that it's common practice in many US states and a completely appropriate issue for legislation), not the catch-all your article implies.

    b) the typical magical thinking evidenced on this site about laws that sound bad is in full flower here. Laws don't magically arrest and prosecute people just because they sound as if they could. Even though you might construe computers as being gambling devices because they are capable of running gambling software, what would be outrageous is police arresting and attorneys general prosecuting people using ordinary computers under the bad wording of this statute--NOT the bad wording itself. The bad wording does not necessarily or even usually produce the conceptually possible bad result based on the bad wording. This is one reason we have judges--they typically don't let cases move forward that fall outside reasonable interpretations of the law (and yes, this happened in all the criminal CFAA cases too, but let's leave those alone for now).

  • May 15th, 2013 @ 11:03am


    i can't believe Mike reported this "story" as if it's true! we already know from much prior commentary & reporting on this site that Bitcoin is inevitably destroying national currencies and that government can't control it. Ipso facto, this story is false.

  • May 13th, 2013 @ 8:21pm

    Re: It seems

    what? it's a legitimate interest of the IRS to determine if groups are strategically misusing their newly-gotten tax-exempt status, and actively promoting complete and obvious misrepresentations of US law?

    next you'll say something outrageous like elected governments can be expected to prosecute groups who openly advocate overthrowing them and/or widespread violations of law!

    what is this, Stalinist Russia? Citizens must be free to break and twist every law and principle on which a country depends without threat of arrest, prosecution, trial, or punishment. Otherwise, we have no freedom.

  • May 9th, 2013 @ 1:15pm

    few things

    there are few things more pleasurable than reading this site full of people who make money off their creative labor telling the rest of us what would be good for us. oh, wait. i mean, this site which promotes the stealing of our work as if we should allow it because it's good for us.

    it's wonderfully hilarious to call Google "A corporation with the mantra "Do no evil" and stands pretty well by it." Not only do I think that is not the experience of so small an entity as the EU with Google, where Google consistently tries to avoid and overstep not just laws but agreements to which it has been a willing an explicit party, but I think this case itself shows it.

    Because if you go back to the beginning, Google's project to scan every book they could get their hands on was not limited to showing snippets--that itself was an accommodation made over the long history of litigation, with the Author's Guild playing an important role. Unlike the library cards and other examples of metadata folks here mention, Google wants to keep the entire text on its servers, and if you don't think they will try every angle, legal and quasi-legal, to monetize those texts *without* paying their creators (of course, this site has no sympathy for creators anyway, but only for the sadly-victimized Google, not a mega-corporation like the publishers who publish authors), has simply not been paying attention.

    As long as I'm here, "copyright monopoly" has nothing to do with REAL monopoly. A real monopoly refers to a single company dominating an industry so that it can set prices and therefore put other companies out of business and gouge the public for profits to itself. The government "monopoly" on copyright does not entail profits going to the government, but rather to copyright holders--frankly it's a terrible use of the word "monopoly" and we'd be better off dropping it, as it is not a monopoly in the ordinary sense of that term. AT&T had a monopoly over telephone COMMERCE and prevented other businesses from being a part of that COMMERCE. The government's issuance of copyright prevents others from issuing copyrights, but does not prevent copyright holders from doing commerce as they see fit--that's why there are literally millions of people and corporations who earn money off the copyrights they hold.

  • Apr 30th, 2013 @ 7:17am

    what's the problem

    Passwords should be open-sourced and transparent. they are not your intellectual property, and they'd be more effective if everyone could see them. #techdirtlogic

  • Apr 29th, 2013 @ 12:39pm

    price vs value

    your discussions of price vs value do not reflect the way those concepts are understood in economics, and fail on the face of themselves. Nice shout-out to Ricardo, but if you've read him you should know that Lanier is talking about economic value, not value per se. "Economic value is a measure of the benefit that an economic actor can gain from either a good or service." http://en.wikipedia.org/wiki/Value_%28economics%29

    Air is currently a non-scarce commodity that nobody buys and sells. Its price is $0 and its *economic* value is $0. You are talking about its raw value to yourself and me, but that is not economic value, and Lanier's argument, which I believe is correct, is about economic value. The value-to-me of things, like the intangible value of a photograph of my family members, is not at issue, and that is where the value of air belongs in today's world.

    Your second example fails as well, and is remarkable for its hot-headedness. The correct unit that an economist analyzes there is not "a computer," but the units of processing power that Moore's law is supposed to be describing. Both the price and the value of a few cycles of CPU time have *plummeted* since the 1970s. In the 1980s 800k of RAM on a floppy disk was worth .50 or so depending on the year; today that 800k is essentially worthless. Its price and value are nearly though not completely identical.

    Unfortunately your rabid equation of "economic value" with "value to me" or "usefulness to me" makes you blind to the simple truth of Lanier's analysis and the many facts in the world that bear it out. You are working very hard to devalue stuff that (unlike CPU cycles or MB of memory) are scarce not in the material but in the act of creation.

    I've said it before and I'll say it again: corporations are required by law to maximize their profits and have many smart (even "web-smart") economists and analysts on board, as do the banks that hold shares in them. If companies really could make *more* money by giving their stuff away, they would not only be doing it, they'd *have* to do it. That the largest IP corporations today are doing their best to prohibit free distribution of their products is actual evidence that your entire line of argument is on its face incorrect. Not that this fact will stop you and your followers from ridiculing principles you appear not even to understand.

  • Apr 19th, 2013 @ 5:21am

    (untitled comment)

    Since Mike is now a Wall Street expert and understands how SEC filings work, I hesitate to say anything, but here goes.

    1) Do companies ever downplay risks to business in their SEC filings? Yes. Much of the time. Most of the time, even. It's actually mentioned in the story. This means particularly things that don't have direct material impact--for example, stealing IP that may allow someone else to be build products a company was going to build itself, but may not, in the current reporting period, cause a direct material harm. Over time, these losses would be expected to be greater than direct financial theft, but they are hard to account for and companies have a huge incentive not to speculate on such losses.

    2) Several of these companies mention that the greatest impact now is the huge amounts of money they must spend on digital security. The security industry is smaller than the top 100 companies. Those top 100 companies have huge economic power. Do you think that if they believed the threat was fake, they would continue to spend so much money to defend against it just to please the defense industry's FUD?

    3) this site loves to extol the work of torrenters and hackers. Can you honestly say for a second that these operations are not direct contributors to the FUD you blame on defense contractors? Anonymous videos are NOT meant to produce FUD? Anonymous and their allied groups continually take on the appearance of paramilitary groups ("Ops" etc.)--we should presume they are just kidding?

  • Apr 17th, 2013 @ 6:51am

    another great parody of thought from best site since The Onion

    this is an excellent version of the "A" story: "hackers are powerless and all the bad stories about us are fiction."

    don't worry, folks: within a couple weeks there'll be a reason for the "B" story to reappear: "hackers are the new form of power and they are transforming/fixing our whole world for the better, so you get out of the way"

    sadly, there will not be a "C" story, noting how often this site and others oscillate between the two, whichever one happens to serve the interests of the day.

    nor will there be one reflecting on the way Google, Facebook, and other now-huge corporations specifically look for "hackers" as their #1 form of pre-employment qualification, and how many of those who go on to work at those places self-identified as "hackers" before they "sold out." THEY think hackers are powerful. So do the ex-hackers who go to work for them.

    Nor will there be a column reflecting on the fact that because government and corporate secrecy are at an all-time high, in part due to the efforts of many ex-hackers who work for corporations and the military, none of us really know how much damage hackers do or don't do. the govt's hacker alarms might be propaganda, they might be 100% true, and they might be in-between, and nobody on this site actually knows, despite the trolling commentary and stories insisting they do know.

    on an editorial note, your link that says it's to a Bruce Schneier column goes to an unrelated story by Doug Bandow.

  • Apr 8th, 2013 @ 9:29am


    definitely, giving away everything you write for free leads to a wonderful living. People will probably give you charity to help you maintain yourself--after all, charitable feelings toward what others have accomplished pretty much oozes out of every pore of this site and the stories it writes.

  • Apr 8th, 2013 @ 9:27am


    Shakespeare... how much money did he make for writing the most-praised, and at times most popular, works of literature in the English language, when we had the kind of free-for-all no-copyright system Mike and other maniacs promote?

    As far as the records reveal, $0. In his whole life. He died, from what we know, a poor man. Sure, some printers made some money, but there is not a single record of Shakespeare earning a pound from his works.

    Welcome (back) to the wonderful world of consumer's rights trump creator's rights advocated by this hilarious parody site.

  • Apr 8th, 2013 @ 9:23am

    (untitled comment)

    by the way, you notice how here you are arguing on the side of Google & Amazon? Those are the small-time "individuals" whose cause you are constantly pushing. Who just happen to benefit tremendously from the lowest IP restrictions possible.

    You frame this as a fight for individual rights, but in many ways it's a war between corporate factions, and you've just chosen a particularly powerful side to portray as the underdog, and individuals will lose, except for those who believe, you know, that HBO has a legal obligation to produce Game of Thrones and a legal and ethical obligation to give it away for free.

  • Apr 8th, 2013 @ 9:19am

    (untitled comment)

    this is as perfect as everything else you write.

    like all other misguided non-libertarians, Turow and the Author's Guild steadily refuse to see the giant streams of income they could have if only they followed your belief system.

    They are too stupid and ... what's the word.. oh, yes, "Luddite" (should we just substitute "Communist") to actually try out any of your ideas, to experiment, to have their own data.

    No, these authors are just stupidly sitting back, refusing to make money, all just to make a point.

    At some point, if reality ever collides with the TechDirt site (I don't hold out much hope), you will realize that your own belief system contradicts this. You have to believe that all authors and content producers are arguing against their own self-interest for some nebulous belief system that is mostly organized around stopping kids from taking their stuff for free.

    A more credible story is: these are smart people who see what is happening and have real reason to believe that the attacks on copyright are exactly what you (in other modes) will say they are, and that depriving huge classes of important work functions from being able to earn income will actually be a huge negative for society.

    Which is it: do you believe people pursue self-interest in a market economy, or that they follow deluded ideologies? Because if you believe the second, the idea that "giving it away leads to profits" sounds like a much more likely deluded ideology than that "giving it away leads to income."

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