FBI Kept Demanding Email Records Despite DOJ Saying It Needed a Warrant (theintercept.com) 102
An anonymous reader writes: The secret government requests for customer information Yahoo made public Wednesday reveal that the FBI is still demanding email records from companies without a warrant, despite being told by Justice Department lawyers in 2008 that it doesn't have the lawful authority to do so.
That comes as a particular surprise given that FBI Director James Comey has said that one of his top legislative priorities this year is to get the right to acquire precisely such records with those warrantless secret requests, called national security letters, or NSLs. 'We need it very much,' Comey told Sen. Tom Cotton, R-Ark., during a congressional hearing in February.
That comes as a particular surprise given that FBI Director James Comey has said that one of his top legislative priorities this year is to get the right to acquire precisely such records with those warrantless secret requests, called national security letters, or NSLs. 'We need it very much,' Comey told Sen. Tom Cotton, R-Ark., during a congressional hearing in February.
Re:OIG opinions are not binding (Score:4, Informative)
OIG can issue reports and opinions, but the office cannot make rules, only the OLC (Office of Legal Council) can do that.
This was not the Office of the Inspector General (((OIG))); this was the Justice Department’s Office of Legal Counsel.
From the article [theintercept.com]: Opinions issued by the OLC are generally treated as binding and final within the executive branch.
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So when do we put these spooks in jail for their crimes?
What crimes? (Score:1)
First of all, FBI aren't "spooks" — you are confusing them with the CIA and other no-such-agencies. FBI are federal police, not spies.
More importantly, what crimes? It is not illegal for them to ask for the data... Moreover, the courts — you know, the ultimate deciders on what's legal — generally agree [theintercept.com], that any information thus obtained is legitimate evidence and not against the Fourth Amendment.
It is called "The Third Party Doctri [wikipedia.org]
Re:What crimes? (Score:5, Insightful)
They're "requesting" it in the same way that Vinnie from the mob "requests" protection money. So the crimes would be some combination of intimidation, coercion, extortion, racketeering, RICO act violations, etc.
I hope you agree that even if the government "can" currently do that (given that it's unlikely to prosecute itself for its own crimes), it should cease doing so.
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That's what the "strong state", that Statists constantly bleat about, brings.
It is inevitable. If you want the government to "take care" of you: educate your children, treat your sickness, punish the "evil corporations" for not providing you the service you want or even in a manner you want, ban the speech you don't want to hear, etc., they will become big enough to be able to destroy you for opposing them:
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Not my praise, necessarily, but certainly that of the sheep, who believe — quite sincerely to my amazement — that "government is better than corporations"...
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It is not binding if there is no enforcement. This is just another way for the FBI which is part of the DOJ to say one thing and do another.
Re:What crimes? (Score:5, Insightful)
It is legal for them to ASK for data. It is NOT legal for them to DEMAND data under the cover of a National Security Letter.
They did the latter as documented by the now released NSL they gave to Yahoo.
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Of course, it is legal. Moreover, they can blatantly lie too — unless under oath.
Your lawyer may advise you, their request is bluff and they have no leverage to compel you, but they can still try...
"Insightfulness" is rather skimpy today on /.
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It is absolutely not legal to ask under an NSL. Otherwise they can lie and make vague threats (the latter is a gray area) but there is only so far they can go. The NSL is over the line.
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If they are not spies, and only police... why are they spying on people without due process?
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First of all, FBI aren't "spooks" â" you are confusing them with the CIA and other no-such-agencies. FBI are federal police, not spies.
That line was already blurring in the 80s. After 9/11, with new mandates for inter-agency communication, it disappeared completely. The FBI is now a domestic intelligence agency that happens to have arrest authority.
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So when do we put these spooks in jail for their crimes?
First we need to make what they did a crime. And then we'd only be able to jail them for future infractions.
Remember, if a cop asks for information, and you give it to them, that is not a violation of the 4th amendment is is perfectly acceptable. But if the cop asks for information, you refuse to give it to them, and then they take it anyway without first getting a warrant, that is when a crime was committed.
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I'm pretty sure it would fall under illegal search and seizure. Which is technically a crime, but as you say, a law without teeth is barely a law at all.
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probably not frist psot... (Score:1)
Of course they are ignoring the court.... they feel that they are above the courts.
And john doe is beneath their boot heels.... whatever they want to do, they will...
until someone stops them.
Someone with Moral fiber, Integrity and Honesty.
Probably not any of the Congress/Senate politicians, probably not the Executive Branch, or the Supreme Court.
Maybe a Super Hero?
Maybe.... Ant Man?
Maybe just Pinky and the Brain....
But then, it's always been this way.
Only just recently has the media been actually looking
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Of course they are ignoring the court....
Um.. It's not the "courts" they are ignoring, it's the DOJ's lawyers opinion they are ignoring. I know it's a fine line here, but let's be accurate in what we say.
Seriously though, if somebody is implicated by evidence collected illegally, THEN they have recourse at the criminal trial to have the illegal evidence suppressed along with all the evidence that came from the illegally collected evidence. If the FBI really is out collecting evidence which is not legal, then they are doing stupid stuff and a wh
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.. It's not the "courts" they are ignoring, it's the DOJ's lawyers opinion they are ignoring
i.e. other folks in the same administration. Bush and Obama.
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Given the history, generally the DOJ is happy with contorting the law into fascinating new shapes to claim something is legal for law enforcement when objective legal scholars say otherwise. So if even the DOJ can't get behind this use of a NSL, that suggests the FBI is way over the line.
As for criminals walking, I notice that over three years after the lab tech in Massachusetts got caught outright fabricating evidence, only a small percentage have walked. Perhaps the FBI likes their odds.
The opposite. Treason: "aid & comfort the enem (Score:1)
Treason is "giving aid and comfort to the enemy".
Senator Cotton tried to PREVENT Obama from giving aid and comfort to the Iran.
I don't assume that either Cotton or Obama was motivated by anything other than greed, but Obama's actions better fit defintion of treason. You seem to be under the impression that treason is defined as "disagreeing with the president/community organizer"in chief"?
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Treason is "giving aid and comfort to the enemy".
Senator Cotton tried to PREVENT Obama from giving aid and comfort to the Iran.
One, Iran is not "the enemy." They might not be our BFF, but we aren't at war and we have open diplomatic relations with them.
Two, Senator Cotton demonstrated allegiance and fealty to a foreign leader (Netanyahu) before America. If Tom Cotton likes Israel so much, maybe he ought to move there.
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That's like saying we weren't at war with China during the Vietnam war.
Re: The opposite. Treason: "aid & comfort the (Score:2)
> One, Iran is not "the enemy." They might not be our BFF, but we aren't at war and we have open diplomatic relations with them.
The US ceased diplomatic relations with Iran on April 7th, 1980, after the 1979 Iranian revolution. That's when Iran was taken over by a party whose official stance is that America must be destroyed because it is "the Great Satan". We've been enforcing a trade embargo since then, with various exclusions at different times.
The US Congress stopped declaring war after WWII, Iran
More Proof (Score:5, Insightful)
The FBI is the ENEMY of the American people...
Re:More Proof (Score:4, Interesting)
The FBI is the ENEMY of the American people...
The local news here the other day is that they''ve been supporting a local drug dealer, who they know is an illegal immigrant, for years.
Re:More Proof (Score:5, Insightful)
The FBI is only one of the cogs. Isn't it troubling when you can read either as ...
The secret *government requests* for customer information
or
The *secret government* requests for customer information
because the FISA Court allows for exactly that, a secret and unaccountable government. Some day they'll swap "Foreign" for "Federal" in that acronym and nobody will notice any difference.
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Some day they'll swap "Foreign" for "Federal" in that acronym and nobody will notice any difference.
It's not just that, since the change will be secretly approved, and will be a matter of national security, nobody will be allowed to talk about the change, or the difference. Unless another traitor spy comes up and tell us what's new in the US government.
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The FBI is the ENEMY of the American people...
I dunno....they're pretty good at setting up fake terrorism busts.
keep trying (Score:2)
And hope some idiot somewhere will cave.
The right hand ignoring the left? (Score:5, Insightful)
Or were these fishing expeditions whose point was to gin up some extra parallel discovery?
Here's the thing. What I mind about this situation is the opaqueness. The article is very light on details of what the FBI thought it was trying to find or why it was going about it without the warrants. Did the agents involve not get the memo? Did their supervisors not know what the agents were up to? Were the agents told to not do it this was and actively ignoring those orders? That is where my problem with this starts. We don't know those details and as a voter and citizen in order to make a good decision about this, I need to know.
Instead we'll get another "thin blue line" stall while the "appropriate authorities" investigate. It makes it hard to have faith in the FBI's work when something like this happens. To the rest of us, it looks like it's another CYA situation. Another where no real punishments are handed down and agents are shuffled around like priests to outlying and small churches in order to avoid any further embarrassment. I, for one, don't want "optics" to change my mind, I want to see the evidence. I want to see those in charge engage and manage. And most of all, I want to see heads roll IF AND ONLY IF that is appropriate in the situation.
But like I said before, I don't know the situation and no one is talking. That is a big problem.
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That is where my problem with this starts.
Politicians love you. It's wonderful having someone to blame. It's like how the boss is in charge until the minions fuck-up: Then it's not his fault. Hunting for the witch, I mean the criminal, excuses the behaviour of the supervisors and accessories to the crime. Once the witch, um, criminal is found, everyone can say how helpful they were and the problem is fixed. In reality, nobody has changed themselves, or what they do, so the problem remains and repeats.
Thus everyone, or at least everyone import
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If someone from the FBI calls a communication company and says "Can I please have this information to aid in the investigation of
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But anything that information leads to is fruit from a poison tree and so should not be usable to indict or convict. They are knowingly pulling the wool over a judge's eyes and that is illegal.
Don't we have enough criminals out there without giving some of them a government paycheck?
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But anything that information leads to is fruit from a poison tree and so should not be usable to indict or convict. They are knowingly pulling the wool over a judge's eyes and that is illegal.
Don't we have enough criminals out there without giving some of them a government paycheck?
Regardless they are still using it to take down bad people. While it might be a grey area on whether they have authority to request the data, the end result will be the same. We tie the government's hands so we can feel safe yet it's the government employing these agencies to protect us.
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They're using it to take down people anyway. Since they're willing to try fooling a judge in court, all bets are off.
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And there's the problem. By sabotaging a fair trial, we are left unsure that the right people are being convicted. Trust in law enforcement, the courts, and government in general is eroded.
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So we will have to reverse the change in law (1996 Telecom Act, I think) that changed call data (metadata) from being the property of the calling/called parties to that of the carrier. The carrier will have a fiduciary duty [wikipedia.org] to protect it's customers property (metadata) from other parties. I can still remember my old telephone service agreement which stated something to the effect that the phone company will access my calling data only for the purpose of call completion and billing.
Also, we will have to giv
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Heck the big one in the 6th Circuit says the exact opposite of what you claim. I mean seriously if your going to say something is settled you might want to look up some evidence to support your opinion.
https://en.wikipedia.org/wiki/... [wikipedia.org]
https://www.eff.org/deeplinks/... [eff.org]
http://www.csmonitor.com/USA/J... [csmonitor.com]
Maybe the Senate will take up https://www.congress.gov/bill/... [congress.gov] and we can resolve this once
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Well, the DOJ says you're wrong. And has been saying that since 2008.
Maybe you should wake up.
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Despite any law, the only way to enforce this is to encrypt everything except what is needed to route the packet.
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A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.
The problem is that the government has found a workaround for this. By bullying companies into releasing your emails and building surveillance technologies into everything, no one really expects their email to be private any more. And once there is no longer the expectation of privacy, they no longer need a warrant.
The same thing is happening with cellular location data:
First, people thought their location was safe. Then people figured out that cell towers knew your approximate location. Eventually ever
It's just the right thing to do... (Score:2, Insightful)
Weren't we all raised that it was the polite thing to do to ask before you take something? The FBI isn't demanding the emails. They were merely asking if they would be voluntarily be handed over. It's not the FBI's fault that the companies read more into the polite requests than was explicitly stated. /s
Vexation (Score:5, Interesting)
Italicized emphasis mine.
repetitive? check
burdensome? I'd have to ask Yahoo whether the FBI was going to foot the bill for the time spent gathering the information.
unwarranted? as suggested by the literal lack of warrant, check
All that's left is the FBI to try to apply the all writs act and now we've got the litigation portion covered.
Now you'd have Yahoo required and the FBI expressly forbidden from completing the actions by law. I think this needs to see trial.
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http://www.cnet.com/news/judge... [cnet.com]
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A decade ago you might have had a point, but with the "Patriot" Act NSLs were no longer voluntary. They carried all of the weight of a subpoena, which you ARE required to either submit to or challenge in court. The initial wording of the Patriot Act though was a Catch 22, you had to comply but you WERE NOT allowed to tell anyone, including lawyers and judges, that you had even received one. That's why it was found unconstitutional, and why the wording was changed, but it was still found unconstitutional
Bad habits of parallel engineering (Score:4, Insightful)
Snowden's revelations demonstrated that FBI has access to most of the electronic data without even asking anybody (Prism, Stellar wind, Fussion centes and many others - does that ring a bell?).
To justify they are "asking" for a warrant. One conclusion appears to be evident: they are drowning in illegally collected data. The right hand does not know what the left hand collected, they don't know if it is legal or not: they do not care. They know that they can always find one justification or another, yet maintaining straight and serious poker face, while stating that liberties and privacy of the citizens are respected.
Business as usual NO BIG DEAL (Score:1)
I see stories like this every day, and nothing bad has happened to ME yet!
I guess it's no big threat. I guess I really don't need to defend myself or my family! Everything is bad, but it's not THAT bad!
This is seriously what you are supposed to think because of this bombardment of little stories skirting around the real issue:
The government is the agent of a total surveillance program that is a threat to the very lives of almost every man woman and child on the planet.
FBI keeps doing this and that (Score:1)
So what? Who's gonna stop them? The crooked politicians you keep reelecting?
Ask me if I'm surprised. (Score:1)
Need to do a SMART bill (Score:4, Insightful)
OTOH, if we require a warrant to get the encrypted email, as well as require it of the owner, then it will encourage emailers to encrypt everything. This is the smart thing to do.
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The idea of the US requiring a warrant get access to snoop through your inbox (it's not like they are capturing your email as it is traversing the internet) is enshrined in the fucking Constitution (or are digital writings not deserving of the same protections as ones on paper?).
Almost all emails sent from Gmail at least (probably yahoo and office too) are encrypted: "Gmail supports encryption in transit using
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So, does the constitution protect our snail mail as you and others pretend? The answer is NO. What protects are laws that the feds made a century ago: 18 U.S.C. 1703.
Now, take the example of a phone conversation over a land line. We ARE protected because
What?!?! (Score:2)
How many times does he get to do this before he wins a prize?
So, in other words: (Score:2)
"Pass a law that legitimizes what we're doing so we can stop breaking the law!"
Can we prosecute a few of these scumbags? Just an idea.
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Or it's not the people with ill intent they are after?
The sheer volume and scope of data they collect and store makes it very difficult to, say, find a lone terrorist or terrorist cell.
However, a mass trove of bulk data is just dandy for going after political opponents and people who try to curb the expansion of government power and/or expose government criminality or anyone else who they view as a threat to their agenda.
It was never about "terrorists". It's all about *control* over the populace. Heck, they fund and direct terrorist attacks themselves and igno