Coyote Blog

This is good ... hope it withstands appeal

Ultra-secret national security letters that come with a gag order on the recipient are an unconstitutional impingement on free speech, a federal judge in California ruled in a decision released Friday.

U.S. District Judge Susan Illston ordered the government to stop issuing so-called NSLs across the board, in a stunning defeat for the Obama administration’s surveillance practices. She also ordered the government to cease enforcing the gag provision in any other cases. However, she stayed her order for 90 days to give the government a chance to appeal to the Ninth Circuit Court of Appeals.

“We are very pleased that the Court recognized the fatal constitutional shortcomings of the NSL statute,” said Matt Zimmerman, senior staff attorney for the Electronic Frontier Foundation, which filed a challenge to NSLs on behalf of an unknown telecom that received an NSL in 2011. “The government’s gags have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience.”

The telecommunications company received the ultra-secret demand letter in 2011 from the FBI seeking information about a customer or customers. The company took the extraordinary and rare step of challenging the underlying authority of the National Security Letter, as well as the legitimacy of the gag order that came with it.

Both challenges are allowed under a federal law that governs NSLs, a power greatly expanded under the Patriot Act that allows the government to get detailed information on Americans’ finances and communications without oversight from a judge. The FBI has issued hundreds of thousands of NSLs over the years and has been reprimanded for abusing them — though almost none of the requests have been challenged by the recipients.

After the telecom challenged the NSL, the Justice Department took its own extraordinary measure and sued the company, arguing in court documents that the company was violating the law by challenging its authority.

According to Ken and Popehat, Eugene Volokh is defending Crystal Cox in a free speech case.  Here is some background on Ms. Cox.  In discussing Volokh's defense, Ken makes the same point I have on many occasions:

Crystal Cox is not a sincere supporter of free speech. Crystal Cox is not a defender of the First Amendment. Crystal Cox supports free speech for Crystal Cox, but for her own critics, Crystal Cox is a vigorous (if mostly incoherent) advocate for broad and unprincipled censorship.

This should not surprise us. As I mentioned before, free speech cases often involve defending vile speech by repugnant people. Nearly as often, those repugnant people are no respecters of the rights of anyone else. Do you think the Nazis who marched at Skokie, if they had their way, would uphold the free speech rights of the religious and ethnic minorities who protested them? Do you imagine that Fred Phelps' church, given its choice, would permit the blasphemous and idolatrous freedoms it rails against?

No. We extend constitutional rights to people who, given the opportunity, would not extend the same rights to us. That's how we roll.

Crystal Cox is no different. Eugene Volokh and the Electronic Frontier Foundation are appealing the judgment against her to vindicate (through however flawed a vessel) important free speech issues.

But it is one thing for me to blog that everyone, including Illinois Nazis and Crystal Cox, should have free speech rights.  It's quite another to actually spend days of one's time on a pro bono basis actually handling her legal work.  So kudos to Volokh -- we all know the sewers need to be cleaned out from time to time but few of us actually will jump in and do it.

I think it was George Carlin (?) who used to ask "Do you know what the worst thing is that can happen when you smoke marijuana?" His answer was "Get sent to prison".  The implication, which I have always agreed with for most drug use, was that it is insane as a society to try to save someone from doing something bad to himself by ... doing something worse to him.

I think of this whenever I get in a discussion about security responses to 9/11.  The worst thing that can happen to this country as a whole  (as differentiated of course from the individual victims of 9/11) is to turn the country into a police state to combat potential future terrorist actions.  I personally would greatly prefer to live with a 1 in 100,000 chance of being the victim of terrorism than find myself living in an America that has abandoned its constitution.  I wrote more on this topic here.

To this end, though I tend to be slow to believe these type of stories, this one (via Reason) about domestic NSA wiretapping is pretty frightening:

AT&T provided National Security Agency eavesdroppers with full
access to its customers' phone calls, and shunted its customers'
internet traffic to data-mining equipment installed in a secret room in
its San Francisco switching center, according to a former AT&T
worker cooperating in the Electronic Frontier Foundation's lawsuit
against the company....

The source is just one low-level guy, so this story is still pretty soft.  I hope the investigation is allowed to play out.

I had seen some Internet posts on this before, but I thought it was from the "Aliens were behind the 9/11 attacks" crowd.  But it does appear to really be Big Brother at work:

The pages coming out of your color printer may contain hidden information that
could be used to track you down if you ever cross the U.S.
government.

Last year, an article in PC World magazine pointed out that printouts
from many color laser printers contained yellow dots scattered across the page,
viewable only with a special kind of flashlight. The article quoted a senior
researcher at Xerox Corp. as saying the dots contain information useful to
law-enforcement authorities, a secret digital "license tag" for tracking down
criminals....

Yesterday, the Electronic Frontier Foundation, a San Francisco consumer privacy
group, said it had cracked the code used in a widely used line of Xerox
printers, an invisible bar code of sorts that contains the serial number of the
printer as well as the date and time a document was printed...

The EFF said it has identified similar coding on pages printed from
nearly every major printer manufacturer, including Hewlett-Packard Co., though
its team has so far cracked the codes for only one type of Xerox
printer.

The U.S. Secret Service acknowledged yesterday that the markings, which
are not visible to the human eye, are there, but it played down the use for
invading privacy.

This kind of stuff really scares me.  Is there anyone out there that thinks that this won't be used to trace a leak, track down a whistle-blower, or identify an anonymous political critic?  And, even if you are able to conjure up trust that the US government will not use these codes for anything other than fighting counterfeiting, what about use of these codes by private parties?  Or, even more depressing, remember that these printers are being sold today in China, Syria, Iran, Zimbabwe, etc.  Does anyone at all doubt that these governments will use the print codes to identify and silence dissent?

Shame on the government for instituting this program.  Double shame on HP and Xerox for going along in silence, joining the ranks of Microsoft, Cisco, and Yahoo in making adjustments to their technology to make government surveillance and censorship easier.  I don't know of any legislative mandate that requires these printer companies to go along with this, so they are doing this voluntarily - sort of (see below).

For those on the left feeling smug that this is solely a right-wing Bush-is-a-fascist problem, shame also on those who built the economic regulatory state that we live in.  In a truly free economy, HP and Xerox would likely have told the government to take a hike.  However, the government holds a huge regulatory hammer over corporations' head in so many realms that companies in our society find it difficult to tell the government off when they get this type of request.  Its the same story with airlines and banks, who feel compelled to share otherwise private customer data with Homeland Security under the threat of having government retribution fall on them from any number of directions.  We have got to start realizing that government control of economic activity is just as much an imposition as government control of speech or the press.  Freedom of expression does not become voided just because money changes hands.

Many thanks to Marginal Revolution for the link.  Their comment:

Would the Berlin Wall have fallen if East European governments had access to
this kind of technology twenty years ago?