Law in Plain English: In Re National Security Letter

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

In Re National Security Letter

The FBI issued a national security letter (NSL) to an unnamed ISP for certain subscriber information. The FBI certified that disclosure of the NSL could harm national security, so the ISP was prohibited from disclosing to anyone that they had received it (a gag order). The ISP challenged the constitutionality of the  non-disclosure provision as a violation of free speech, and challenged the judicial review provisions as a violation of the separation of powers. Judge Susan Illston of the United States District Court for the Northern District of California ruled that the nondisclosure provision was a form of prior restraint which was not narrowly tailored, since the provision applied to both the content of the NSL and the fact that the ISP even received it. As a result, it violated the ISP's freedom of speech. Additionally, the judicial review provisions violated both the First Amendment and the separation of powers principle by trying to narrow the ability of courts to review the nondisclosure orders. Furthermore, she prohibited the government from issuing any NSLs or from enforcing the nondisclosure provisions in this case and in any other cases. Lastly, she stayed enforcement of the judgement pending appeal or 90 days if there is no appeal (although that seems entirely likely).

Update (8/13/2013): I missed this a few months back, but the Government did file a notice of appeal.

NSL Order by Michael Schearer

DerbyCon talk info

I'll be speaking at DerbyCon in Louisville, KY (September 27-30, 2012). Here is my talk info:

Title: Flex Your Rights: The Constitution & Political Activism in the Hacker Community

Abstract: Let's be clear upfront: I don't care if you're a Republican or Democrat (or another party), I don't care if you're pro-life or pro-choice. This presentation isn't about politics in the traditional sense. What we should be willing to acknowledge, however, is that public policy issues and the political process increasingly overlap with issues and interests that are important to the hacker community. Issues like free speech, privacy, and copyrights manifest themselves in legislation like SOPA, PIPA, ACTA, the Cybersecurity Act, DMCA (and many others). Surely these issues are worth our time and attention. By exploring recent legislation, court cases, and newsworthy events, it's my aim to convince you that we, the hacker community, need to flex our rights right now, more than ever. Won't you join me?

The schedule is here.

Hope to see you there!

Net neutrality vs. the "Internet kill switch"

I have previously written at some length about net neutrality.  Without rehashing much of that, it should suffice to say that one of the main issues surrounding the issue of net neutrality is the authority of the FCC to regulate the Internet (the FCC classifies the Internet as a Title I information service and not a Title II common carrier).  Thus far, Congress has not acted; despite this, the FCC asserted authority to regulate the Internet and issued a net neutrality order (PDF) on December 21st.

Another issue which became newsworthy in the past year or so was the Protecting Cyberspace as a National Asset Act of 2010, introduced by Senator Lieberman (I-CT).  While this bill did not advance in the last Congress, it will undoubtedly be renewed.  By its own description, the bill

[c]reates the Office of Cyberspace Policy and National Center for Cybersecurity and Communications to set standards and coordinate cybersecurity efforts within the government. Gives the NCCC broad powers over "critical infrastructure" in the case of a "national cyber emergency" (as declared by the President).

The "broad powers" over "critical infrastructure" given to the President and the NCCC have been termed a supposed "Internet kill switch."

The bill and the kill switch rhetoric rose to new importance in the past week as events in Egypt have unfolded, amid news reports that the Egyptian government was blocking access to, or otherwise obstructing the Internet.  PC Magazine then raised the question: After Egypt, Will U.S. Get 'Internet Kill Switch'? which was cited by the Demand Progress campaign to fight the Internet kill switch.  This campaign is actively opposed to Senator Lieberman's bill.

Personally, I think it is interesting to see these two issues ripen at the same time.  On one hand, implementation of meaningful, enforceable net neutrality requires Congress to grant the FCC power to regulate the Internet.  On the other hand, in the case of Senator Lieberman's bill, handing the government "broad powers over 'critical infrastructure'" (the bill's words) is seen as "an affront to basic democratic principles, the First Amendment, and all that is great about America" (Demand Progress's words).

To be sure, I don't suggest that these two situations are equal, but there is a slippery slope there.  Handing regulatory control of the Internet to the FCC in one realm could encourage the government to grab hold in other realms.  And to be sure, Senator Lieberman's bill (as a separate grant of authority to the NCCC rather than the FCC) wouldn't even require any sort of net neutrality legislation to be in place; but it may certainly be emboldened by it.  It seems to me that even the FCC's current overreach, absent Congressional authorization, has to give other regulatory bodies the envious thoughts of control.

Organizations such as the EFF and ACLU support net neutrality, but oppose the kill switch legislation.  These organizations, and anyone who shares the same positions, are certainly entitled to them.  But I think it becomes important for them to distinguish why you support one, but oppose the other.  In discussing the issue with me on Twitter, @no_structure said "the kill switch is indiscriminately destructive but regulation is not, nor is regulation guaranteed to be destructive at all."  He argued that he was "concerned" about the potentially for a slippery slope, but not "deterred" by it.  I think this is a reasonable position, but these other organizations ought to distinguish the issues themselves, too.

My concern, even with this reasonable position, is the soft despotism that de Tocqueville wrote about:

It covers the surface of society with a net-work of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided: men are seldom forced by it to act, but they are constantly restrained from acting: such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to be nothing better than a flock of timid and industrious animals, of which the government is the shepherd. I have always thought that servitude of the regular, quiet, and gentle kind which I have just described, might be combined more easily than is commonly believed with some of the outward forms of freedom; and that it might even establish itself under the wing of the sovereignty of the people. Our contemporaries are constantly excited by two conflicting passions; they want to be led, and they wish to remain free: as they cannot destroy either one or the other of these contrary propensities, they strive to satisfy them both at once. They devise a sole, tutelary, and all-powerful form of government, but elected by the people. They combine the principle of centralization and that of popular sovereignty; this gives them a respite; they console themselves for being in tutelage by the reflection that they have chosen their own guardians. Every man allows himself to be put in leading-strings, because he sees that it is not a person or a class of persons, but the people at large that holds the end of his chain. By this system the people shake off their state of dependence just long enough to select their master, and then relapse into it again. A great many persons at the present day are quite contented with this sort of compromise between administrative despotism and the sovereignty of the people; and they think they have done enough for the protection of individual freedom when they have surrendered it to the power of the nation at large. This does not satisfy me: the nature of him I am to obey signifies less to me than the fact of extorted obedience.

de Tocqueville's slippery slope is so imperceptibly shallow that we may not notice the slope at all.  We may recognize the kill switch as far enough along that we can perceive the difference.  But regulation of the Internet via net neutrality seems clearly much closer to our current position.  It may be only slightly further down the slope, but down the slope it is.

Our important distinction will be where to draw the line such that we no longer push ourselves down the slope.  Let us hope that we can even recognize when we're there, and not simply be content to redraw the slope every time we take a step.

Now that it matters, where is the EFF on net neutrality?

Update: Of course, just as I post this, the EFF posts an update.  Still, it is not nearly the statement I am hoping to hear from them.  They soon need to move on from a "wait and see" attitude to forceful opposition to the process.

The Electronic Frontier Foundation has long been a supporter of the concept of net neutrality.  Yet on May 3rd, Fred von Lohmann of the EFF wrote an article entitled "Net Neutrality: FCC Trojan Horse Redux." In the article, he argued that basing the FCC's proposed net neutrality rules on the FCC's "mandate from Congress to deploy broadband to all Americans in a timely manner" is "a bad idea, no matter what your views of the wisdom of the FCC's proposed net neutrality regulations."  He went on to say:

Whatever your views on net neutrality, this is a terrible idea. If you oppose the proposed FCC net neutrality regulations because you are worried about expansive federal regulation of the Internet, then you should oppose an expansive reading of "Title I ancillary authority," because that reading would be an invitation for even more federal regulations down the road.

The quote above about deploying broadband to all Americans in a timely manner is from Section 706 of the Telecommunications Act of 1996.  This is what the EFF called a "terrible idea," and this is precisely the authority the FCC is asserting (see paragraph 117 of the FCC net neutrality order).

To be fair, this article seems to mix Section 706 and "Title I ancillary authority" into the same bucket, and the FCC's new net neutrality rules seem to drop "Title I ancillary authority" in favor of Section 706 (and a hodgepodge of other supposed authority).  But the general idea is the same--the FCC is basing their claims of authority on terrible legal ground.

One would assume then that the EFF still thinks this is a terrible idea.  The problem is that they have been largely silent.  The EFF's "Deeplinks Blogs related to Net Neutrality" has been quiet since December 8th.  The only news is an article by Abigail Phillips entitled, "Genachowski Wins on Net Neutrality, Sort of" which spends precisely one paragraph on the "bad" and "terrible" idea, but this time simply calls the FCC's basis for regulation "disconcerting."

The EFF supports the concept of net neutrality, but the arguments made by Fred von Lohnmann are precisely the same procedural arguments that I have made against net neutrality.  Arguing the substance of the regulations is fine, as I have already done here, but when the entirety of that substance is based upon a "rotten legal foundation" (the EFF's words, not mine), you would think they would come out more forcefully against the process.

The EFF said back in May: "we don't think that the FCC has—or should have—broad powers to regulate the Internet for any reason..."  I agree. I know it's the holiday season and things are slow everywhere, but as the New Year begins I hope we can expect a strong and forceful statement from the EFF against the FCC's net neutrality rules.

The EFF is wrong (and they know it)

San Francisco - A federal judge has dismissed Jewel v. NSA, a case from the Electronic Frontier Foundation (EFF) on behalf of AT&T customers challenging the National Security Agency's mass surveillance of millions of ordinary Americans' phone calls and emails.

I'm seeing this article get posted all over today, but it is becoming more clear with every case that the EFF is becoming expert at spinning legal opinions into a populist rant, at the expense of the accuracy of their analysis.

In the ruling, issued late Thursday, U.S. District Court Chief Judge Vaughn Walker held that the privacy harm to millions of Americans from the illegal spying dragnet was not a "particularized injury" but instead a "generalized grievance" because almost everyone in the United States has a phone and Internet service.

Yes, EFF, you have to show an actual injury. "We might have possibly been the victim of surveillance" is just not good enough. Rather than admit the weakness of their injury claim, they spin their reaction to suit their agenda. Reading the actual decision finds that:

"[I]njuries that are shared and generalized —— such as the right to have the government act in accordance with the law —— are not sufficient to support standing.” Seegers v Gonzales, 396 F3d 1248, 1253 (DC Cir 2005).

I'm quite sure that the EFF knows this--as any lawyer would--so why don't they admit it? Well, frankly, they have an agenda to push, and admitting the weakness of their case wouldn't fit within that agenda. They can appeal all they want, but unless they show more than a generalized grievance they're going to lose again, and (short of finding an activist appeals court) they know it.